The appellant, Peter Mufunda, is a Legal Advisor in the
Ministry of Energy and Power Development. The respondent, Zimbabwe Energy
Regulatory Authority is a statutory successor of the Zimbabwe Electricity
Regulatory Commission.
The common cause facts on which the dispute between the
parties arose are as follows.
The appellant, an employee of the Ministry of Energy and
Power Development was, on 20 October 2009, by appointment, assigned to
perform duties for the Zimbabwe Electricity Regulatory Commission (ZERC), whose functions were taken over by
The Zimbabwe Energy Regulatory Authority (ZERA). The appellant played a role in
the establishment of the Zimbabwe Energy Regulatory Authority. According to the
assigning memorandum he was to play the leading role. The Zimbabwe Energy
Regulatory Authority appreciated his role to the extent that when the Ministry
sought to withdraw his services to it, by memorandum dated
17 November 2011, it asked the Ministry to allow him to continue in
that role till it appointed its own Chief Executive Officer. The Ministry
agreed and extended his assignment to 28 February 2012.
After assuming duty at the Zimbabwe Electricity Regulatory
Commission, and, thereafter, the Zimbabwe Energy Regulatory Authority, the
appellant continued to perform his normal duties as Legal Advisor for the
Ministry. He did not sign a contract of employment with either the Zimbabwe
Electricity Regulatory Commission or the Zimbabwe Energy Regulatory Authority,
but was paid an allowance of US$500= per month after he protested against non-payment
after serving the Zimbabwe Electricity Regulatory Commission for some time. He
had demanded that he be paid a salary but the Secretary of the Ministry of
Energy, after initially telling him, rather brutally and uncharitably, to
“learn to work for nothing” authorised him to arrange with the respondent that
he be paid the US$500= per month allowance which the Minister had authorised.
The appellant accepted the payments on a without prejudice
basis.
The parties failed to reach an agreement leading to the
appellant referring the dispute over salary and benefits to the Ministry of
Labour and Social Services. On 2 September 2013, a certificate of no
settlement was issued and the dispute was referred to arbitration. The
Arbitrator found that the parties had entered into a valid contractual
relationship. He ordered the parties to quantify the award failing which they
could revert back to him for quantification.
The respondent noted an appeal to the Labour Court which
found in its favour leading to the appellant noting this appeal.
In his two grounds of appeal, the appellant alleged the
following against the decision of the Labour Court:
1. The court a quo erred and misdirected itself in finding
that there was no contractual relationship between the appellant and respondent
contrary to the dictates of section 14 of the Public Service Regulations, S.I. 1/2000,
as read with sections 2 and 12 of the Labour Act [Chapter 28:01].
2. The court further erred and misdirected itself in
holding that there was no legal basis for the award of arrear salaries and
benefits due to the appellant from the respondent.
In finding for the respondent, the Labour Court…, said:
“The Oxford Dictionary defines secondment as a temporary
transfer. In other words, an employee on secondment remains the employee of the
original employer (seconder) during the period of secondment. The Industrial
Court of Malaysia, in the case of Bank Simpanan Nasional Finance Bhd & Anor
v Omar Hashim (2002) 1 ILR 272 (Award NO. 1013 of 2005) explained the meaning
of the term 'secondment' as follows:
'The ordinary dictionary meaning of secondment as a
temporary transfer has, on the face of it, the connotation that the employee is
subject to recall by his employer. So he is not a permanent employee of the
other.'
The same court, in Come Services Asia Pacific Region, Miri
v Grame Ashley Power (1987) 2 ILR 34 reinforced the idea of a temporary
transfer stating:
'Therefore, so long
as the contract is not terminated, a new contract is not made and the employee
continues to be in the employment of the original employer. Even if the
employer orders the employee to do certain work for another person, the
employee still continues to be in his employment.
The only thing that happens in such cases is that the
employee carries out the orders of the master hence he has the right to claim
his wages from the employer and not from the third party to whom his services
are lent or hired. It may be that such third party may pay his wages during the
period he had hired his services, but that is because of his agreement with his
real employer. However, that does not have the effect of transferring the
service of the employee to the other employer. The hirer may exercise control
and direction in the doing of the thing for which he has hired the employee; or
even the manner in which it is to be done. But if the employee fails to carry
out his direction he cannot dismiss him and can only complain to the actual
employer. The right of dismissal is vested in the employer.'
I am persuaded that the above quotation aptly describes the
respondent's position. In my view, the respondent's
secondment was informal as no fully detailed secondment agreement was put in
place as envisaged by s 14(2) of S.I 1/2000. Consequently, the respondent
continued to receive his remuneration as a member of the Public Service. If the
appellant was to pay for respondent's services, in my view, a detailed
agreement would have been put in place. In the case of Dairibord Zimbabwe
Limited v Lazarus Muyambi SC22-02 the terms and conditions of the secondment
were set out in a contract of assignment entered into by the appellant and the
respondent. Such a contract is missing in casu. I am not persuaded that bit can
be implied from the circumstances of this case.”…,.
The court a quo therefore found that;
(a) The appellant was not released by his employer;
(b) He did not enter into any contract of employment with the
Zimbabwe Electricity Regulatory Commission nor the Zimbabwe Energy Regulatory
Authority; and
(c) The contract of secondment cannot be inferred from the
conduct of the parties and the provisions of sections 2 and 12 of the Labour
Act.
The issue for determination by this court is whether or not
the court a quo correctly summarised the law and applied it to the facts of
this case.
Counsel for the appellant submitted that there was a
contract of employment between the appellant and the respondent. He submitted
that the provisions of section 14 of the Public Service Regulations, S.I.1 of 2000
as read with section 12 of the Labour Act [Chapter 28:01], and the conduct of
the parties, confirms that there was an agreement….,.
Counsel for the respondent further submitted that if the
appeal is valid there was no contract of employment between the appellant and
the respondent.
Section 14(1) and (2) of the Public Service Regulations, S.I.1
of 2000 provides for the secondment of civil servants as follows;
“(1) A member may, at any time, with his consent, and at
the invitation of the Head of the Ministry or Commission, be seconded by the
Commission for a period not exceeding three years to a post in an approved
service.
(2) The terms and conditions of service of a member while
on secondment shall, subject to any policy directive issued by the Commission,
be governed by contract between the member and the approved service concerned.”
Section 14(1) and (2) of the Public Service Regulations, S.I.1
of 2000 requires an employee who is seconded to enter into two contracts;
(i) The first contract is with his employer who will offer
to second him to an approved service provider, which offer he can accept by
giving his consent to the secondment. The secondment to be agreed upon should
be “to a post in an approved service.”
(ii) The second contract is for the employee's conditions
of service which the employee enters into with the approved service provider to
which his employer will have released him for secondment.
If the agreement between the seconding employer and the
employee to be seconded is for the employee to be released and seconded to a
post in the approved service provider, then that institution and the employee
must enter into an agreement which will govern the seconded employee's
conditions of service. The need for the second agreement depends on the
agreement between the seconding employer and his employee. If, for example, the
seconding employer wants his employee to continue working for it but also wants
the employee to render services to a specified institution, at its expense,
there will be no need for an agreement between the service provider and the
employee.
This is what the court a quo attempted to explain in the
passage quoted above but unfortunately without fully analysing the provisions
of section 14 of the Public Service Regulations, S.I.1 of 2000.
The court a quo's decision is correct though it should have
adequately analysed section 14 of the Public Service Regulations, S.I.1 of 2000
and assessed the facts of this case against it - starting from the intention of
the seconding employer. The intention of the seconding employer is clearly
explained in its memorandum dated 20 October 2009…, in which it explained the
reason and nature of the secondment in issue. The memorandum reads;
“To Honourable Minister
From Permanent Secretary
Date 20 October
2009
Appointment of Ministry
Officials To Run The Affairs Of Zimbabwe Electricity Regulatory Commission
(ZERC)
As you may recall, ZERC was dissolved in order to pave way
for the establishment of an all-encompassing Energy Regulatory Commission after
the passage of the Energy Act by Parliament of Zimbabwe.
As you may also recall, Eng. M. C Munodawafa was appointed to
oversee the operations of ZERC.
Eng M C Munodawafa has since been appointed Chief Executive
Officer of the Zambezi River Authority. Therefore,
there is need to appoint persons to execute the functions of ZERC until the
establishment of the Energy Regulatory Commission.
I recommend that Mr P Mufunda and Mrs G Ngoma, Legal
Advisor, and Deputy Director for Policy and Planning, respectively, be appointed to administer ZERC. Mr P
Mufunda shall take the leading role.”
The Minister, through a hand written endorsement to the
Permanent Secretary's letter, agreed with the appellant's appointment. He said:
“The Chief Legal
Officer may take the proposed role. While Mrs Ngoma is a good candidate she
is a Board member of ZESA so please substitute her with another member so that
there is no direct conflict in roles.”…,.
The Minister's directive was implemented through a
memorandum dated 21 October 2009 through which Mr Hugh Sagonda was
appointed in place of Mrs Ngoma.
It should be noted from these memoranda that the Ministry
appointed its officers to carry out roles at the Zimbabwe Electricity
Regulatory Commission. It did not second them in terms of section 14(1) and (2)
of the Public Service Regulations, S.I.1 of 2000. It did not second them to
posts within the Zimbabwe Electricity Regulatory Commission.
An appointment to a role by one's own employer is not a
secondment to a post in the service provider. In terms of section 14(1) of the
Public Service Regulations, S.I.1 of 2000, the role of the employer is to
release the employee for appointment into a specified post by the approved
service.
The memorandum talks of the appointment of Ministry
officials to run the affairs of the Zimbabwe Electricity Regulatory Commission.
This means the persons being appointed would remain Ministry officials and were
to run the Zimbabwe Electricity Regulatory Commission's affairs in that
capacity. This is confirmed by reference to M.C. Munodawafa having previously
been appointed to oversee the operations of the Zimbabwe Electricity Regulatory
Commission and the appellant being appointed to administer the Zimbabwe
Electricity Regulatory Commission. These terms are not consistent with one
being seconded in the capacity of an employee of the approved service. If that
was the employer's intention the post to be occupied in the approved service
would have been specified.
The employees were therefore not released by the Ministry.
In the case of a secondment in terms of section 14 of the
Public Service Regulations, S.I.1 of 2000, the approved service and not the
original employer assigns duties to the employee. In this case, it is the
Ministry which assigned duties to the appellant. When the original employer
assigns duties to be performed for the approved service it will not have
released the employee. It will be assigning duties to its employee for the
benefit of a third party.
The determinant facts are that the employer did not release
the appellant from his position within it. It did not mention a post to which
he was to be appointed within the Zimbabwe Electricity Regulatory Commission.
It clearly states that Ministry officials were to run the affairs of the
Zimbabwe Electricity Regulatory Commission. The court a quo was therefore
correct that what happened was an informal secondment because a real secondment
can only take place when the employer and employee's agreement is one in which
the employer releases the employee to enable him to go and take up employment
in a specified post for a period not exceeding that stipulated in section 14 of
the Public Service Regulations, S.I.1 of 2000.
This explains why the appellant continued to perform duties
for the Ministry and receiving his salary from the Public Service Commission.
In view of my finding that the employer did not intend to
release the appellant to take up a post in the Zimbabwe Electricity Regulatory
Commission or the Zimbabwe Energy Regulatory Authority, counsel for the
appellant's submissions on the effect of the conduct of the parties and the
meaning of sections 2 and 12 of the Labour Act [Chapter 28:01] does not warrant
consideration. The parties' conduct and the interpretation of sections 2 and 12
of the Labour Act cannot change the clear intention of the employer to assign
the appellant a role as opposed to seconding him. They cannot change the
appellant's agreement with his employer from that of an informal secondment to
a secondment in terms of section 14 of the Public Service Regulations, S.I.1 of
2000.
The appellant's appeal against the court a quo's finding
that there was no secondment agreement must, therefore, be dismissed.
There is, however, an injustice caused by the Permanent
Secretary.
He backdated the allowance approved by the Minister to
January 2010 when the appellant had been performing duties at the Zimbabwe
Electricity Regulatory Commission since 20 October 2009. The appellant is
entitled to the US$500= per month allowance for that period. There is no reason
why he should not be paid for that period. The appellant raised this issue in
the court a quo and in this Court. The respondent did not give any reasonable
explanation for excluding that period from the authorised payment of
allowances. The court a quo did not address its mind to this issue. Its
decision in this regard must therefore be set aside….,.
In the result, the decision of the court a quo is set aside
and is substituted by the following:
It is ordered that:
1. The appellant's appeal against the court a quo's finding
that there was no secondment agreement between him and the respondent be and is
hereby dismissed.
2. The appellant's appeal against non-payment of the US$500=
per month allowance for the period 20 October to 31 December 2009 succeeds.
3. The respondent is ordered to pay the appellant the
US$500= per month allowance for the period 20 October 2009 to 31 December 2009.
4. Each party shall bear its own costs.
