Court name
Supreme Court of Zimbabwe
Case number
SC 50 of 2003
Civil Appeal 41 of 2002

Agrifoods v Chiruka and Others (41/02) (SC 50 of 2003, Civil Appeal 41 of 2002) [2004] ZWSC 50 (19 January 2004);

Law report citations
Media neutral citation
[2004] ZWSC 50



7


SC
50/03















DISTRIBUTABLE
(43)


Judgment
No. SC 50/03


Civil
Appeal No. 41/02








AGRIFOODS
v J      CHIRUKA
AND FOUR OTHERS








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
MALABA JA & GWAUNZA JA


HARARE,
SEPTEMBER 29, 2003 & JANUARY 20, 2004








T
Biti
,
for the appellant





T
Sakutukwa
,
for the respondents





GWAUNZA
JA: This is an appeal against a judgment of the Labour Relations
Tribunal (“the Tribunal”) in terms of which the
appellant was
ordered to reinstate the respondents to their previous employment
without loss of salary or benefits. If reinstatement
was no longer
possible, the appellant was ordered to pay the respondents damages
for loss of employment.






The facts of
the matter are as follows. The respondents were employed by the
appellant as shift workers. During the week in
question they had
worked the 10.00 pm to 6.00 am shift from Monday until
Saturday, 8 November 1997. It is not in
dispute that at the
end of this shift they received orders to report for work the
following day, which was a Sunday, and to work
for five hours. The
respondents regarded the order as unlawful, firstly, because they saw
it is infringing on their statutory right
to one day off per week
and, secondly, because it went against previous practice where they
were never required to make up for hours
not worked in a particular
week. The respondents accordingly decided to disobey the order.
As a result, and according to the
appellant’s Code of Conduct, the
respondents were summarily dismissed from their employment. The
charge was insubordination or
failure to obey a lawful order.






In the court
a quo
all parties concerned were agreed that in terms of ss 5 and 6 of
the Milling Industry Employment Regulations (SI 668/83),
which
applied to the appellant’s employees, non-shift workers were
required to work not more than forty-eight hours a week while
shift
workers were not to exceed forty-five hours per week. The position
was also explained, and endorsed by the respondents’
representative, that the respondents’ eight hour shift translated
to forty hours for five days, i.e. Monday to Friday. It was
also
explained on behalf of the appellant that it was in order for the
respondents to complete their forty-five hours per week that
the
appellant ordered them to report for work for five hours the
following day.





The
details regarding the respondents’ working hours per week are
relevant to the determination of whether or not this appeal
is
properly before this Court.






Mr Biti,
for the appellant, asserts that the learned member of the Tribunal
who heard the matter seriously misdirected herself on findings
of
fact and that such misdirection amounted to a misdirection in law.
(See
National
Foods Ltd v Mupadza

SC 105/95). In particular, Mr 
Biti
charged that the Tribunal made the following findings of fact –






(i) that the working week for the
respondents was a forty-eight hour working week; and







(ii) that the
particular order for the respondents to work on a Sunday was
unlawful, in that it violated the six-day working week
seeing that in
any event it was not and could not have been an order to work
overtime.






Mr Biti’s
assertions are well-founded. The record of the proceedings in the
court
a quo
indicates there was a long explanation in that court concerning the
respondents’ regulated days and hours of work per week, and
also
that the respondents concurred with such explanation. Despite this
explanation, the court
a quo
stated as follows in its judgment:





“The
reason for this instruction [to work on a Sunday] was to enable the
particular shift to make up for the shortfall in hours. In
the
industry employees work a forty-eight hour week but due to the shift
system one of the three shifts would only put in forty-five
hours
instead of forty-eight hours.”






As already
indicated, the evidence before the court
a quo
makes it clear that the court, in its judgment, misinterpreted the
facts placed before it.






The
respondents, in their heads of argument, also conceded that the court
“did not grasp the hours of work for both shift and
non-shift
workers” since the former “were to work from one hour to
forty-five hours but not exceed the forty-five hours in any
one given
working week”.






Basing its
determination on the erroneous assumption that the shift workers
concerned had worked longer hours than they had actually
done, the
court
a quo
concluded that the order for the respondents to report for work the
following day “clearly” violated the six-day working week
and was
therefore unlawful. It was also the finding of the court that such
order would have meant that the respondents worked seven
days in a
week, thereby forfeiting their entitlement to one day off in a week.






The legal
position regarding misdirection based on facts is clearly articulated
in the case of
Hama
v National Railways of Zimbabwe

1996 (1) ZLR 774 (S) where at p 670A the learned judge observed
as follows:





“For
an appellant to avail himself of a misdirection as to the evidence,
the nature and circumstances of the case mu
st
be such that it is reasonably probable that the Tribunal would not
have determined as it did had there been no misdirection; in
other
words, that the determination was irrational.”





I
am satisfied, on the strength of this
dictum,
which I find to be apposite
in
casu
, that the court
a quo
did indeed misdirect itself as to the evidence before it. Had the
court not so misdirected itself, I have no doubt in my mind that
it
might very well have reached a different conclusion. In particular,
the court
a quo
may not have reached the conclusion that the order to report for work
the following morning would have violated the respondents’
right to
one day off per week. The misdirection in question amounts to a
misdirection in law. That being the case, the appeal,
I find, is
properly before this Court.





Coming
to the merits of the appeal, it is contended for the appellant that
the Collective Bargaining Agreement applicable to the
parties, i.e.
SI 668/83, provided for a forty-five hour working week for shift
workers and not the six-day working week suggested
by the court
a quo.
Further, that clause 5.6 of the same Agreement provided that
“every employee shall receive at least one day off duty in
each
week”. It is argued for the appellant, correctly in my view, that
these stipulations leave the employer “at large” to
define the
shift hours to be worked as well as the one day off that is to be
taken in a week.





It
is not in dispute that the respondents had that week worked the
10.00 pm to 6.00 am shift from Monday to Friday, with
the
Friday shift spilling into the early hours of Saturday. The order
required the workers to report for work the following morning,
which
happened to fall on a Sunday. Having broken off work at 6 am
on a Saturday, the workers would clearly have had a full
day off by
the time they would have started work on the Sunday as ordered.
Working for five hours on the Sunday would have brought
their working
week to forty-five hours, a circumstance that, contrary to the
finding of the court
a quo,
would not have violated clause 6.2 of Statutory Instrument
668/83.





Much
is made in the respondents’ heads of argument of the requirement
that the respondents work on a Sunday. As already indicated,
the
Regulations governing the respondents’ working hours do not specify
which days the workers should or should not work. Therefore,
to the
extent that the employer could determine the hours and days of work,
there was no violation of that particular provision.





It
is also argued on behalf of the respondents that because for fifteen
years the respondents had never been asked to work on a
Sunday, the
order to come to work on that day not only caused confusion among
them but was perceived by them to be unlawful. Because
they
perceived such order to be unlawful, it was further argued, it could
not be said that they had wilfully disobeyed a lawful instruction.





I
am not persuaded by this argument. Firstly, as the respondents
themselves concede, the hours they had worked that week fell
short of
the maximum stipulated in the relevant Statutory Instrument, by five
hours. Secondly, the order for them to report for
work the
following day was communicated both in writing and orally, so there
should have been no confusion. Thirdly, and most importantly,
since
the order in question violated neither the forty-five hours per week
rule nor the one day off per week rule, it could not have
been
unlawful. As long as the respondents concede, as they have done,
that the working week for them amounted to a maximum of forty-five
hours per week, it is, I find, contrary of them to then argue that
the order for them to work an extra five hours was an attempt
to
introduce a new condition of work. Rather, the order merely sought
to fulfil an existing regulated condition of work applicable
to the
respondents.





The
court
a quo
in its judgment correctly stated that wilful disobedience constitutes
a deliberate and wilful disobedience of an order that has been
clearly communicated. I have already determined that the order in
question was lawful. The evidence before me indicates that
such
order was clearly communicated to the respondents, not only in
writing but also verbally. The respondents on their own determined
– erroneously – that the order was unlawful. They then
deliberately decided to disobey it. This, in my view, amounted to
a
wilful disobedience of a lawful order. Such conduct, according to
the appellant’s Code of Conduct, justified summary dismissal.
I
am satisfied that the respondents were, accordingly, properly
dismissed. The appeal must therefore succeed.





It
is in the premises ordered as follows –





1. The
appeal be and is allowed with costs.






2. The order of the Labour
Relations Tribunal is set aside and is substituted with the following
–






“The appeal is dismissed with
costs”.














SANDURA  JA:
I agree.














MALABA
JA: I agree.














Honey
& Blanckberg
,
appellant's legal practitioners


Mantsebo
& Partners
,
respondents' legal practitioners