Dealing with workers mischief

week, I will try to address the issue through a case involving three workers who were employed by Iris Biscuits (Limited).
Sometime in February 2009, the three were part of a group of workers who started work at 7am and were told that they would knock off after eight hours.

However, at 7pm they had to continue working as they had to finish packing a particular order while waiting for the employer to give them their bus fare.
Around 7.30pm, they received their money and prepared to go home. This is when the supervisor came in and announced that no one was going home until after they had finished packing biscuits for another order.

The workers approached the supervisor to explain that they could not go back home in the middle of the night, as they were afraid to move at night and further that they had worked since 7am.
The supervisor then said: “Anoda kuenda kumba ngaaende.” (Those who want to go home can leave).

The workers then left. The employer later alleged that in going home, the employees had refused to obey a lawful instruction and on this basis, the employees were all charged and found guilty. They were given final written warnings except the three who were sitting on a final written warning. Those were dismissed.
In April 2009, the matter was referred for arbitration.

The arbitrator proceeded to decide the matter on the basis of the final written warning. The arbitrator did not look into the question of whether or not the actual dismissal had been unlawful. He did not look into the merits of the matter to decide on whether or not the dismissal was fair.
The arbitrator ruled in favour of the employer and dismissed the appeal. The three workers were not satisfied and they appealed to the Labour Court. At the Labour Court, they argued that the 2008 final written warning issue was still pending as the employer had promised to revert to the appellants in relation to the appeal that the employer was alleging had been noted out of time. The employer formally advised that the appeal had indeed been out of time and the appellants did not seek to challenge the employer’s decision, which had the effect of settling the 2008 dispute. The employer’s representative argued that there was no point of law that had been raised in the grounds of appeal. The grounds only related to factual issues, contrary to provisions of the Labour Act.

It is true that appeals to the Labour Court against decisions by arbitrators will lie to the Labour Court only on questions of law. However, the arbitrator was required to decide whether the dismissal was fair. He restricted himself to issues, which had to deal with the 2008 dispute, but did not look into the merits of the matter. This was to decide whether the facts did disclose an unfair dismissal. In failing to decide the matter on the merits, the arbitrator grossly misdirected himself to the extend that warrants interference by the Labour Court.

The issue to decide was whether or not the dismissal under the circumstances of the case was a fair dismissal. The issue was not about the 2008 dispute which was never properly before the arbitrator, but rather the fairness or otherwise of the dismissal.
Failure by the arbitrator to direct his mind to the issue placed before him was so serious a misdirection that the issue, though factual, did amount to a point of the law.

Thus, the matter was properly before the Labour Court. The employer did not manage to prove on a balance of probabilities the allegations that the workers had refused to obey a lawful order or that they had acted in a manner that was contrary to their contracts of employment.

For an employer to dismiss a worker on the basis that the employee had refused to obey a lawful order there must be shown to have a deliberate and serious refusal to obey a lawful order. There must be shown to have been a deliberate and serious refusal to obey on the part of the employee. The three workers in this case did not manifest a deliberate and serious refusal to obey. At 7.30pm, the workers approached the supervisor to explain their constraints and in response he did not explain that they were being required to work overtime and that this was compulsory. Instead, after hearing their explanations, he is on record saying: “Anoda kuenda ngaaende.”

The instruction was not clear and unequivocal. Under these circumstances it cannot be said that there was a deliberate intention to disobey. The probabilities are that the workers thought the supervisor had given them an option to go if they wanted to go. It is against this background that Labour Court president Ms Lillian Hove set aside the workers’ dismissal and ordered their reinstatement into their positions without loss of salary or benefits.