What is submitting to the employer’s control?

Davies Ndumiso Sibanda
MANY employees get dismissed for conduct inconsistent with implied conditions of their contract due to failure to submit themselves to the employer’s control.

At law, once one chooses to be an employee and signs an employment contract he has a duty to submit himself to the employer’s control. Submitting to the employer’s control has a wide meaning as it covers all acts by an employee that are consistent with express and implied conditions of one’s contract.

Once the conduct becomes inconsistent with express or implied conditions then the employee opens himself or herself to possible disciplinary action.

While express conditions of service are clear as it is those conditions of service that have been given to the worker in writing in one form or another or those that have been given verbally in the presence of witnesses, the implied conditions are difficult to identify.

Implied conditions of employment are those conditions that are not expressly given but that as a reasonable person the worker is expected to know, for example, workers should know that acts of insubordination are impliedly contrary to submitting to the employer’s control.

In the matter Kwangwari vs Commercial Bank of Zimbabwe (HH79/2003) the High Court demonstrated the importance of implied conditions of service when it held that “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 a senior employee independently to assess his problems and take steps to reform.”

Although this was a case of performance the case demonstrates that if one is a reasonable person he should be able to tell between right and wrong.

In the case Kandoma vs Black Cosmetics (Pvt) LTD SC 115/2004, the court ruled that, “It must be borne in mind that by entering into a contract of employment, the employee subjects himself to the employer’s 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 is a landmark ruling, which expressly places the worker within the employer’s control and any refusal to be controlled can result in dismissal.

What does the Supreme Court mean when it says the worker should behave accordingly? In my view it means that the worker should behave as instructed by the employer, any failure to do so can lead to dismissal. Workers at times challenge orders given by employers arguing they are unlawful.

While workers can refuse to comply with unlawful orders an order is lawful when it is given by one’s employer, it must be capable of being carried out by the employee, it must be for the advancement of the employer’s business, must be closely related to the duties of the employee and must not be a wrongful act.

This position is given in the matter ZCTU vs Makonese SC14/2004). Further, some members of the workers’ committee have been dismissed for refusing to submit to the employer’s control and at times they are insolent, rude and insult the employer in the name of representing workers.

That is wrong, thus workers have been dismissed. We find guidance in the Supreme Court case Chitembo vs Bindura Nickel Corporation LTD SC35/15, where the Supreme Court said, the status of being a workers’ committee member does not “Clothe them in a cloak of immunity from misconduct charges”.

In short despite being a member of the workers’ committee one has to submit to the employer’s control otherwise disciplinary action will be taken against the employee. With all these legal complexities, an employee has very little room to challenge the employer in a robust manner without running the risk of crossing the line and being disciplined.

In conclusion, as long as the employer has not violated workers’ legal rights, workers have to submit to the employer’s control and even in cases where rights have been violated workers have to raise grievances in a legal manner as careless presentation of a genuine grievance could result in sanctions from the employer.

Davies Ndumiso Sibanda can be contacted on: Email: [email protected]