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Trust Maanda
Post Correspondent
EVERY employee, in principle, has a duty to obey any lawful order given by his or her employer.
The duty to obey lawful orders is a common law duty and has been codified in labour regulations and contained in many employment codes of conduct.
The meaning of what constitutes a lawful order is explained in Matereke v CT Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 (S).
A lawful order means simply that the employee is not bound to obey an order to do something not properly appertaining to the character or scope of his or her contract of employment.
An employee is under no obligation to obey an order which involves a reasonable apprehension of immediate danger to his or her employee’s life or injury to his or her person, if that is not reasonably contemplated at the time he or she entered the employment.
The court went on to say, for instance, an order to remain in a place in which his or her personal safety is endangered by violence or disease is not a lawful order.
If the employee is employed as a fireman, a policeman or a member of the armed forces, it will be defiance of lawful order if he or she is ordered and refuses to go into where there is a fire or a riot!
Lawfulness of the order is circumstantial.
Refusal to obey a lawful order from the employer goes against one’s duty towards the employer.
Depending on the seriousness with which the employer views the disobedience, the employer may dismiss the employee upon following the disciplinary procedures.
A moral excuse for such disobedience will not make the disobedience any less wilful.
It will also not make the order any less lawful.
As long as the order is not so unreasonable as to be unlawful, an employee is duty bound to obey it.
The test for assessing the lawfulness of an order, is whether the order: is capable of being carried out by the employee; is for the furtherance of the employer’s business; is closely connected or related to the duties of the employee; is an instruction to the employee to perform a lawful act; and is not unreasonable in the circumstances of the case.
There is no requirement that a lawful order must in addition be reasonable.
If an order is so unreasonable as to defy common sense, then it cannot be a lawful order.
If the employee is ordered to be at a place where a riot is in progress his refusal to comply with the order would not be wilful disobedience.
It is not an offence to refuse to obey an unreasonable order, for such an order is not a lawful order.
An order so unreasonable as to go contrary to the law cannot be lawful.
Implied in lawful is what is not unreasonable.
An order that is shown to be unreasonable is unlawful and need not be obeyed.
It should however be shown that the order is unreasonable in the given circumstances of the case.
An order is unlawful where it is so unreasonable that no reasonable employer would possibly issue it with the expectation that any employee would comply with it.
Where such order is lawful, wilful disobedience to it is an act of insubordination.
Wilful disobedience and insubordination are in essence, two sides of the same coin.
An employee will be guilty of insubordination where he or she wilfully disobeys a lawful order.
Wilful disobedience connotesa deliberate and serious refusal to obey lawful orders.
Disobedience must be intentional and not due to mistake or inadvertence.
The disobedience must be such as is likely to undermine the relationship between the employer and employee, going to the very foundation of the contract of employment.
A mere omission to comply with a lawful order is not necessarily a defiance of authority, unless the proved facts invariably lead to an intention to hold authority at defiance.
In the case of Innscor Africa (Private) Limited v Terrence GwatidzoSC 5/15, an employee who was off duty refused to obey the employer’s instructions for him to report for overtime emergency duties.
All of the other employees reported for duty.
Upon his return to work, his supervisor asked him to write a report stating why he had not reported for emergency duties.
He refused to write the report, arguing that his time off had been properly sanctioned and, therefore, there was no need for him to write a report on his time off.
The employee was later charged with two acts of misconduct, i.e. refusal to work overtime during an emergency and wilful disobedience of a lawful order given by his superior.
He was dismissed from employment and the Supreme Court upheld the employer’s decision.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646
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