Court name
Supreme Court of Zimbabwe
Case number
SC 2 of 2005
Civil Appeal 40 of 2004

Mutare Board & Paper Mills v Mutsaka (40/04) (SC 2 of 2005, Civil Appeal 40 of 2004) [2005] ZWSC 2 (09 February 2005);

Law report citations
Media neutral citation
[2005] ZWSC 2













DISTRIBUTABLE
(2)





Judgment
No. SC 2/05


Civil
Appeal No. 40/04











MUTARE BOARD & PAPER MILLS
v JAMES HOWARD MUTSAKA











SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & GWAUNZA JA


HARARE,
JANUARY 20 & FEBRUARY 10, 2005








R
Fitches
,
for the appellant





T
A Toto
,
for the respondent









GWAUNZA
JA: This is an appeal against a decision of the Labour Court, in
terms of which the appellant was ordered to reinstate the
respondent
to his job with no loss of salary or benefits, or alternatively, pay
him damages in
lieu
of reinstatement.






The background to the dispute is
as follows:





The
respondent started working for the appellant as the driver of a
motorcycle, in June 1995. Thereafter he worked variously as
a
transport sales clerk, a production costing clerk, and a stores
issuing clerk.





On
24 August 1999, the respondent was informed by his immediate
supervisor that he was to be transferred to another section of the
appellant's Stores Department, to work as a yard clerk. This
direction was formally transmitted to the respondent through a letter
worded in these terms:





“Re:
Job Description









As
discussed with you on 18 August, 1999 in the Human Resources
Manager’s Office regarding your transfer from Reclamation Stores
to
Central Stores, herewith are two copies of the job description.
Kindly sign both copies and return to the undersigned before
end of
business on Wednesday 25 August 1999.









Please
note that failure to respond will be disobeying a lawful instruction
from management".











The
letter was signed by P.U. Mupfumbu (“Mupfumbu”) who was the
Stores Controller.





The
job description referred to listed the duties the respondent would be
carrying out as a yard clerk. One of the duties read:





“Accompany
the driver on deliveries and collections”.








The
respondent objected to this duty and indicated that he would not
consent to taking up the position of yard clerk. He also refused
to
sign the job description, prompting another letter from Mupfumbu,
which read:





“The
memorandum dated 24 August 1999 refers.








This
office expected you to sign your job description on 24 August 1999
but you did not.








You
are hereby instructed to report to work on Monday 30 August, 1999 and
you are to commence your duties as a yard clerk. You are
also
kindly asked to sign the job description before 8.00 am on 30 August
1999.








Please
report to the undersigned office at 7.30 am on 30 August, 1999 so you
will be induced on your new job.”












The respondent, as he had done
from the outset, refused to take up the position of yard clerk. He
responded as follows to the various
requests made for him to do so:






“I
disagree with the fourth duty
-
messengering or accompany (
sic)
driver on deliveries and collections. Therefore I don’t accept.
Please try another offer.”











He
elaborated on his refusal, as follows, in another written response:





“The
job is against my will and skills in life. It’s a non office job,
non clerical. It means I will be spending ¾ of my day’s
work
messengering door to door. Moreover, I do nose bleed a lot when
exposed to the sun.”












The respondent was thereafter
charged with disobeying a lawful instruction and asked to appear for
a disciplinary hearing. At the
conclusion of the hearing, he was
found guilty and dismissed from his employment with effect from 14
September 1999. The dismissal
was in terms of the appellant’s
Code of Conduct. He immediately lodged an appeal against his
dismissal, to the Appeals Committee
which, however, upheld the
decision of the Disciplinary Committee to dismiss him. The
respondent as already indicated, successfully
appealed against this
decision, to the Labour Court.






During the hearing of this appeal
the argument was advanced on behalf of the respondent that his
transfer from issuing clerk to yard
clerk amounted to a demotion.
Also, that what the appellant had charged the respondent with, was,
in effect, refusal to sign a
new contract. Such an instruction, it
was argued, was not lawful, since it was the respondent’s right to
sign or not to sign
the contract.





I
am not persuaded by these arguments.






At the time the dispute arose,
the respondent was working as an issuing clerk. His proposed new
assignment was yard clerk. It
is not disputed that both positions
fell under one department, i.e. Stores. It is also common cause that
the positions were equal
in terms of remuneration and other
conditions of service. The respondent’s averment that the
transfer would have been a demotion,
therefore, is without
foundation.







The
evidence before the court shows there was a clear distinction between
a clerk’s contract of employment and his job description.
The
latter simply listed the specific duties the clerk had to do to
perform his contract of employment. The signing of the job
description by the respondent would not have had the effect of
converting it into a new contract of employment. The evidence also
shows that the respondent’s contract of employment was to work as a
clerk in the stores department, that is, to perform clerical
duties
necessary for the efficient operation of the department. The
respondent has tendered no evidence to show this was not the
case.
Certainly he has not filed a copy of the contract that the court
a
quo

referred to as having been unilaterally changed by the appellant.






There
is therefore, in my view, no merit in the argument that the
respondent was required to sign a new contract of employment, nor
that the real reason for his dismissal was his refusal to sign such
contract






The
court
a
quo

found that the respondent’s contract of employment was synonymous
with the job description of issuing clerk. After comparing
the
respondent’s duties as an issuing clerk with those he was to
perform as a yard clerk the court
a
quo

noted as follows in its judgment,






“…..clearly
the job description is different. This was a unilateral variation of
the contract. It is an unfair labour practice…..
In the present
case the stores controller was rationalizing
his
department and saw it fit to transfer the appellant. However, in so
doing, he changed the terms of the appellant’s contract”










The court rejected the contention
made on behalf of the appellant, that the respondent’s proposed new
job was still clerical in
nature and that by failing to take up the
job as ordered, the appellant had deliberately refused to obey a
lawful instruction.
The learned President noted that the appellant
had “unilaterally” changed the appellant’s contract, a
circumstance that, in
her view, entitled him to “hold” his
employer to the original contract.







For
the reasons already stated, I am satisfied that the court
a
quo

misinterpreted the facts before it on this point, and therefore
misdirected itself.





It
is pertinent to note that, as stated in the respondent’s job
description as an issuing clerk, his immediate supervisor, the Stores
Controller, had the authority to assign to the respondent any other
responsibilities outside those specifically listed in the job
description. The respondent therefore fully appreciated that his
immediate supervisor, the stores controller had this authority.

That the duties he proposed to assign to the respondent were set out
in a different job description, in my view, did not detract
from that
authority. The instruction to transfer the respondent to another
section of the same department, can also be seen in
this light.





I
am satisfied the instruction did not interfere with the respondent’s
general conditions of service, or his contract. It was
therefore a
lawful instruction.





It
is evident the respondent misunderstood the nature of his proposed
new duties. He took exception to the one duty that required
him, in
the course of his work, to accompany the driver on deliveries and
collections. His perception of this duty was that it
was a
messenger’s job. It is correctly pointed out by the appellant
that, since the word `messenger’ did not appear in the
job
description, there was no basis for the respondent to regard that
duty as that of a messenger. The respondent went further to
estimate
that the duty that he regarded as ‘messengering’ would take up
seventy-five percent of his day’s work. The duty
in question was
one of five listed in the job description. As no breakdown is given
in that job description, of the time each task
would take up in any
particular day, it is, again, not clear how the respondent arrived at
this estimation. The point must also
be made that had the appellant
wished the respondent to carry out a messenger’s duties, it would
have come up with a job description
for a messenger.







It
is in my view also correctly argued for the appellant, that even
though as a principle of common law, an employee may not be degraded
to an inferior capacity, thereby changing his status, in
casu,
the status of the respondent’s job remained the same. He was to
remain a clerk, and was not going, as a result, to be perceived
differently by his workmates. Indeed, his status at the company was
not going to be affected by the move from one section to another
within the same department. Instead of refusing to perform the new
job and sign the job description, the respondent, even if he
believed
the order to be unlawful, should have obeyed it and then sought
redress in terms of the Code.






His
refusal to follow the order was therefore unlawful. Consequently,
the penalty of dismissal was justified.





In
the premises the appeal is allowed with costs.





The
order of the Labour Court is set aside and substituted with the
following:





“The
appeal be and is hereby dismissed.”






CHIDYAUSIKU
CJ: I agree.










ZIYAMBI
JA: I agree.















Henning
Lock Donagher Winter
,
appellant's legal practitioners


Toto
& Makoni
,
respondent’s legal practitioners