Employees have to submit to the employers’ control

WORKERS have found themselves on the wrong side of the law when they challenged the employer over implied contractual issues due to ignorance of the law.

In the matter, KANDOMA VS BLACK COSMETICS PRIVATE LIMITED — JUDGEMENT NO SC 115/2004, Kandoma, the workers’ committee chairman was found reading a book on betting and horse racing and admonished for misconduct. He got upset and organised a strike against the employer. When the workers were being disciplined, they alleged Kandoma had organised the strike. When asked about the strike Kandoma became abusive and dared the employer to dismiss him. The employer eventually dismissed him.

He approached the Supreme Court arguing he should not have been dismissed.

The court ruled that Kandoma’s dismissal was justified bearing in mind his conduct. The court said. “It must be borne in mind that by entering into a contract of employment the employee subjects himself to the employers control and should behave accordingly. Any behaviour on the part of the employee which is wholly inconsistent with that relationship would render the continuance of that relationship untenable and would, undoubtedly, constitute a repudiation of the contract of employment by the employee.”

This case shows that once one signs a contract of employment he loses the freedom to do as he pleases and there is a limit as to how far he can challenge the employer.

In another case MPUMELA VS BERGER PAINTS — SC133/99, Mpumela challenged the employer over dress code and became rowdy resulting in police being called in to remove him.

The court held that despite having no written dress code the order by the employer was lawful as it properly appertained to the character of the employee’s contract. The court said. “I am satisfied that in the present case the order issued by the respondent’s Manager was an order properly appertaining to the character of the appellant’s contract of employment and was lawful. It cannot cogently be argued that as the contract of employment did not mention what type of clothes the appellant was required to wear, the respondent’s Manager could not order him to wear appropriate clothes.

In my view, there is certainly no substance in the argument that the appellant was entitled to wear whatever clothes he wanted to wear. If that were the case, the appellant would have been entitled to go to work wearing a jogging suit or track suit, which could hardly have been within the contemplation of the parties at the time the contract of employment was concluded, bearing in mind the fact that the appellant was employed as a bookkeeper.”

In this case, the lessons for employees is that employees must obey all instructions that appertain to the character of their contract and observe all unwritten rules that fall within the contemplation within the parties at the time of contracting.

Further managers do not have to be told certain things as due to their level of education and positions there are things they should know and take on corrective action.

We find dicta in the matter KWANGWARI VS COMMERCIAL BANK OF ZIMBABWE LTD – HH79/2003.

It was held that as a managerial employee he should have known there were problems with his performance.

The court said “Generally, higher standards are expected of senior or managerial employees than ordinary workers doing work of a relatively menial nature. While fair warnings should be given in cases of this kind, a duty also rests on such senior employee independently to assess his problems and take steps to reform.”

This judgement also points to the fact that employees should conduct themselves in a manner that is reasonably expected of them given the circumstances of the business.

In LANCASHIRE STEEL (PVT) LTD VS ZVIDZAI AND OTHERS — SC29/95, the Supreme Court said “When mature man jeer, boo and offer such insulting behaviour to management they are unaware that such conduct is unlawful. They do not have to be told that their gathering is unlawful. It is not only upon refusal to desist from such behaviour after such caution that they can be dismissed for unlawful collective job action. This is not requirement under the Labour Relations Act”.

This judgment tells us that certain conduct by employees will get them in trouble.

In conclusion, just like we submit to the rules at home, we also have to submit to the rules at work given by those in authority however within the confines of the law.

Davies Ndumiso Sibanda can be contacted on: email: stratwaysmail@yahoo.com Or cell no: 0772 375 235