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Mr Fredrick Sunga was based at Murowa Mine in Zvishavane when he was dismissed on October 7, 2006.
He had reportedly disobeyed his supervisor’s orders to load rubbish bins from the plant into a Nissan UD truck.
As a result, he was charged with misconduct for willfully disobeying a lawful order. A hearing was conducted in November the same year and Mr Sunga was found guilty. Murowa Diamonds then dismissed him from its employ and he appealed to the company’s Appeals Committee, which confirmed his dismissal.
Sunga then appealed to the Labour Court on the grounds of unfair labour practice. Labour Court president Godfrey Musariri found in Mr Sunga’s favour that he obeyed the instruction to fetch drums but refused to load rubbish bins.
“I consider the instruction to the Maintenance Operator to dispose of rubbish bins as unreasonable.
In most undertakings, disposal of rubbish is a function of general hands,” said Mr Musariri.
“Appellant withheld his consent to dispose of the rubbish, and the only other basis upon which he could be reasonably expected to comply would be an emergency.”
Mr Musariri pointed out that these were exceptional circumstances, which were neither pleaded nor proved by the employer.
The labour judge considered the penalty of dismissal as drastic in the circumstances.
“Appellant held a bona fide belief that he was not required to handle trash, and if he was mistaken, a reprimand was a reasonable penalty,” said Mr Musariri. He ordered Murowa Diamonds to pay Mr
Sunga damages for loss of employment five years ago in an amount either agreed by the parties or assessed by the Labour Court.
Mr Sunga argued that the task given to him was not in line with the principle agreement of the mining sector.
He argued that the order to load the rubbish bins was in contravention of Collective Bargaining Agreement Mining Industry.
In his argument, Mr Sunga relied on Section 14 (3) of the CBA, which says, “Any employee in Grade 10 and above may perform work outside his category if he has consented to do so.
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