GUBBAY
CJ:
This
is an appeal against the decision of the Labour Relations Tribunal,
brought under s92(2) of the Labour Relations Act [Chapter 28:01]
("the Act"), in which it was held that the omission of the
respondent ("the PTC") to promote the appellant to the post
of superintendent did not amount to an unfair labour practice.
The
factual background giving rise to the dispute, and upon which the
question of law has been debated before this court, was succinctly
outlined by the learned Chairman in his judgment. It may be restated
as follows:
On
10 October 1984, the PTC invited applications for the post of
telephone superintendent at its Gateway exchange in Gweru. Four such
posts were to be filled by the lateral transfer of serving
superintendents or, if not available, by promotion from the grade of
supervisor. The respondent was a supervisor.
He
applied.
After
undergoing a two week training course in April 1985, the appellant
and one Mahachi, a fellow supervisor, were transferred permanently to
Gateway exchange with effect from 28 June 1985.
In
April 1986, the appellant and Mahachi, having by then acted for nine
months, wrote to the regional telecommunications manager requesting
that they be appointed superintendents, as the two substantive posts
at Gateway exchange had not been filled. The immediate response to
their veiled complaint was to offer them the choice of remaining in
an acting capacity or being relieved of their positions. Both
resolved to continue as acting superintendents.
During
February 1987, the appellant and Mahachi raised with the senior
superintendent, Gweru, their concern at still awaiting substantive
appointments; but to no avail. New posts, vacancies and regradings
were under freeze pending a review of the PTC's establishment.
Later
that year, when the freeze was lifted, an exercise was undertaken by
the PTC to fill the vacant substantive posts of superintendent at
Gateway exchange. Candidates were required to have attained five "O"
level passes, including English language and mathematics, in the
General Certificate of Education examination. There were no
applicants with the stated qualification.
Neither
the appellant nor Mahachi had obtained an "O" level pass in
mathematics.
In
January 1988, the promotions board of the PTC requested, and was
granted a waiver of the mathematics requirement for the post of
superintendent. The appellant and Mahachi thus qualified for
promotion.
In
the event, it was Mahachi alone who was appointed. The appellant was
not, because at that point in time he was under investigation on
charges of misconduct.
In
September 1990, the PTC decided to advertise several posts, one of
which was for a superintendent at Gateway exchange. The notice issued
by it stated explicitly that "O" level passes in English
language and mathematics were required of the applicants.
The
appellant applied, notwithstanding that he still lacked the
mathematics qualification.
A
supervisor from Harare main exchange also applied. He happened to
satisfy the educational requirements. And so it was he who secured
the appointment.
Shortly
thereafter, on 5 February 1991, the appellant was informed that as a
superintendent had now been appointed to Gateway exchange, he was no
longer needed to act in that capacity and was to be transferred back
to Harare main exchange as a supervisor.
This
was indeed a bitter pill for the appellant to swallow.
He
had acted as superintendent at Gateway exchange for a period of five
years and seven months and was not prepared to comply meekly with the
instruction that he revert to the grade of supervisor. He immediately
referred what he believed to be an unfair labour practice to a labour
relations officer in terms of s93(1) of the Act. A hearing was
convened on 8 February 1991. The labour relations officer came to the
conclusion that:
"The
person who was appointed to fill the vacant post at Gateway exchange
was eligible for the post in terms of the Postmaster General's
Circular No.8 of 1986 and in terms of the vacancy notice No.45 of
1990 the PTC acted within the parameters of its laid down policy, and
it was thus not guilty of an unfair labour practice in this regard."
Thereafter
followed appeals to the regional hearing officer and from him to the
Labour Relations Board.
Section
8 of the Act specifies those acts or omissions which constitute an
unfair labour practice by an employer.
Under
s10, the Minister of Public Service, Labour and Social Welfare is
empowered to prescribe, by statutory instrument, acts and omissions
which constitute unfair labour practices and may vary, amend of
repeal any such notice. Initially such provision was made by the
Minister in the Third Schedule to the Labour Relations (General)
Regulations 1985 (SI 368 of 1985); and more recently in the Second
Schedule to the Labour Relations (Settlement of Disputes) Regulations
1993 (SI 30 of 1993).
Those,
then, are the particular acts or omissions deemed to be unfair labour
practices which a labour relations officer is mandated by s 93 of the
Act to deal with.
It
was not in contention, and rightly so, that the omission by the PTC
to promote the appellant to the post of superintendent, despite his
long and good service when acting in that capacity, was one of the
unfair labour practices specified in the legislation.
Nonetheless
the argument advanced was that the PTC had created a situation which
caused the appellant to legitimately expect that he would be promoted
to the post in which he was acting. The landmark judgment of Corbett
CJ in Administrator, Transvaal, & Ors v Traub & Ors 1989 (4)
SA 731 (A) was prayed in aid.
In
the above cited decision, at 761D-G, the learned Chief Justice
elaborated upon the doctrine of legitimate expectation in these
words:
"There
are many cases where one can visualise in this sphere: where an
adherence to the formula of 'liberty, property and existing rights'
would fail to provide a legal remedy, when the facts cry out for one;
and would result in a decision which appeared to have been arrived at
by a procedure which was clearly unfair being immune from review. The
law should in such cases be made to reach out and come to the aid of
persons prejudicially affected.
At
the same time, whereas the concepts of liberty, property and existing
rights are reasonably well defined, that of legitimate expectation is
not.
Like
public policy, unless carefully handled it could become an unruly
horse. And, in working out, incrementally, on the facts of each case,
where the doctrine of legitimate expectation applies and where it
does not, the courts will, no doubt, bear in mind the need from time
to time to apply the curb. A reasonable balance must be maintained
between the need to protect the individual from decisions unfairly
arrived at by public authority (and by certain domestic tribunals)
and the contrary desirability of avoiding undue judicial interference
in their administration."
The
extension of the principle of natural justice as enunciated in Traub
has been accepted by this court. See Health Professions Council v
McGown 1994 (2) ZLR 329 (S) at 333G-334C; Taylor v Minister of Higher
Education & Anor 1996 (2) ZLR 776 (S).
Even
if it be assumed (without in any way deciding the point) that it was
permissible for the labour relations officer to accept the
appellant's reference, albeit falling outside those definitive acts
or omissions specified as constituting unfair labour practices, the
particular facts seem to me to exclude a finding that the appellant
had a tangible natural law right to be promoted to the post of
superintendent.
Most
importantly, at the date the appellant was appointed an acting
superintendent it must have been known to him that he lacked the
necessary academic level in mathematics to secure the substantive
post. It was only because there was no qualified applicants that the
requirement for an "O" level pass in mathematics was waived
in 1988. Hence Mahachi was promoted.
But
for the pending investigation the probability is that the appellant
would have been appointed as well, since there remained a vacancy at
Gateway exchange.
Colloquially
speaking, that was a "one off" situation.
The
waiver of mathematics was dictated by the prevailing circumstances.
It was not to be a permanent relaxation. And when in September 1990
the PTC advertised the vacancy at Gateway exchange, an "O"
level pass in mathematics was once more a pre-requisite. The
appellant had the experience but not the academic qualification.
How
could he therefore, legitimately or reasonably expect to obtain the
appointment?
The
decision not to promote him, in my opinion, was not one unfairly
arrived at.
If
the PTC had again waived the requirement of mathematics, the
appellant's position might have been different. However, it is
unnecessary to decide the outcome. I would merely emphasise, as
cautioned by Corbett CJ, that the need to avoid undue judicial
interference in the administration of public authorities must always
be placed in the balance.
Indeed,
it could be submitted with some persuasion that the promotion of an
employee is a privilege, left to the discretion of the employer, to
be conferred when deemed fit. It is not a right that an employee is
entitled to claim unless, of course, his contract of employment so
provides.
For
the aforegoing reasons I would dismiss the appeal with costs.
KORSAH
JA: I agree
MUCHECHETERE
JA: I agree
Honey
& Blanckenberg,
appellant's legal practitioners
Coghlan,
Welsh & Guest,
respondent's legal practitioners
