In order to appreciate the issues
that fall for determination in this appeal, it is necessary to set out in some
detail the background giving rise to the present proceedings.
The appellant was employed by the
Makoni Rural District Council, (“the respondent”). She was stationed at
the council offices in Rusape. She was married and had children. Her
family was running a business in Rusape.
Her problems with the respondent
appear to have started on or about 9 October 2003, when she absented herself
from work and allegedly used a Council computer to transact personal
business. By letter dated 10 October 2003, the appellant wrote a letter to
the Council Treasurer in the following terms:
“…, I am sorry for using council
computer for private business documents and absence from work. I had valid
reasons which I had shared and had been given permission by the Deputy
Treasurer, Mrs S Mtisi, that my child, Fadzai was not feeling well….,.”
On 11 October 2003, the Council Treasurer
wrote to the appellant accepting the apology but warning her not to do the same
thing and to ensure that leave days are authorised by the Chief Executive
Officer of council before such leave was taken.
On 14 October 2003, Mrs Mtisi, the Deputy
Council Treasurer, wrote to the appellant denying that she had ever authorised
her to go away.
It is not clear what happened
thereafter, but on 31 March 2004, the appellant wrote a letter to the Chief
Executive Officer. The letter was in the following terms:-
“I apologise for all what I did
wrong. I promise to be trustworthy, not to be lazy, not to tell lies and to
notify my immediate supervisor whenever I will be going out. I will be very
grateful if you consider my apology.”
In the meantime, the appellant had
been transferred from the Finance Department to the Health Department. Both
of these departments are located within the Rusape Town Council area.
On 3 February 2005, one C.Z Doto, a
community sister, wrote to the appellant asking her to write a report on her
absence from duty without approval. By letter dated 4 February 2005, the
appellant responded in the following terms:-
“I apologise that I was absent from
duty on 3 February 2005. What happened is, I received an emergency at about 4
to 12 in the evening that my uncle was seriously ill at Honde Valley and I had
to collect him to Harare.
I left a note at home that maybe my
line 091 807 018 will not have network that Mr Sagandira will report of the
emergency at my workplace…,.”
On 8 February 2005, the appellant
held a meeting with the respondent's Chief Executive Officer, E. M
Pise. Following that meeting, Mr Pise wrote to the appellant as follows:-
“Reference is made to my meeting
with you over your failure to report for work and absconding from duty. You
have the habit of leaving office without authority and we believe you need to
be relocated out of Rusape.
You are therefore advised that you
have been transferred to Inyati Mine with effect from 14 February 2005…,.”
On 11 February 2005, the appellant
responded to the above letter expressing her disappointment at the turn of
events. In the letter, the appellant stated:-
“I have noted with great displeasure
that my excuse for attending the funeral was unaccepted and that your decision
to transfer me to Inyathi Mine was based on false allegations. You were
informed that I went out for business instead of the said illness that later
turned into a funeral…,.
Chief, as you have already
concluded, I have no objection to your instruction that I be transferred to the
abovementioned station. You have all the rights to give whatever punishment you
think is worthy. May I point to you that I am going to Inyati Mine with
groaning because I don't see where I wronged you. You have, on several times,
tried to be on a fault finding mission on my performance of duty but your
efforts have been in vain because the truth shall set me free.
The truth about my transfer, if I
may put it across to you, is that your advisors are not happy with my husband's
business and in all instances they think whenever I go out they think I would
have gone to manage my private business yet I will be attending to crucial
social problems…,.
You did not bother to seek audience
with me to verify the validity of the allegations against me and because of
this I strongly feel that you want to get rid of me from this organisation.
Because by transferring me to Inyati Mine you know that I will lose contact
with my family and this may lead to the disintegration of my family and to make
my children suffer and look miserable during my absence.
Once again, I want to reiterate that
I am not pleased to go to Inyati Mine although I am going to comply with your
instructions.”
It is common cause the appellant did
not report at Inyati on 14 February 2005. Instead, she wrote what she
called an appeal against the transfer. In the “appeal” she stated that the
Chief Executive Officer had “no basis to punish” her as the allegations were
baseless and malicious. She also stated that it was Government policy that
couples should not be separated to reduce the incidence of HIV, minimise costs,
and obviate separation.
On the same day, Mr Pise wrote back
to the appellant in the following terms:-
“…,. You are hereby advised that
your appeal has been dismissed as evidence from your file clearly indicates
that you have failed to work at our headquarters….,.
We want to hear that you have taken
up your position at Inyati today 14/02/2005…,.”
Following a further appeal for him
to reconsider his decision to transfer her, the Chief Executive Officer, on the
same day, wrote to the appellant advising of Council's decision to suspend her,
without pay, pending a hearing to take place on 21 February 2005. The
suspension was said to be in terms of section 12B2(b)(i) and(ii) as read with section
35 of the Council Conditions of Service.
On 21 February 2005, the appellant
appeared before what was termed a Works Council hearing.
The hearing committee consisted of
Mr Pise, who was Chairman; Mr J Mugari, a member of the workers' committee;
Miss N Bofu, a Council employee charged with minuting the proceedings; and the
appellant.
In its determination, the committee
remarked:
“It has been proved beyond any
shadow of doubt that Mrs D Sagandira has the habit of defying authority and the
cases of absence from work without permission point to this, and, in addition, her
failure to transfer to Inyati Mine when instructed to do so, so (sic) is
another case in point. It is not in dispute that Mrs D Sagandira failed to
follow instruction to transfer. She at first agreed to transfer and later
changed her mind. It should be pointed out that they operate a family business
within Rusape where she frequently goes leaving the office unattended. She has
been transferred before from the Finance Department and this did not help. She
has remained stubborn and does not want to obey orders. Given the above,
the said employee is dismissed with effect from 14 February 2005…,.”
Dissatisfied, the appellant took the
matter up with a Labour Officer who referred the matter to an
arbitrator. The arbitrator upheld the dismissal. The appellant then
appealed to the Labour Court. The Labour Court found that her failure to
transfer to Inyati Mine amounted to disobedience. The court also found
nothing wrong with the composition of the disciplinary authority. In the
result, the court dismissed the appeal with no order as to costs.
It is against that order the
appellant now appeals to this Court.
In her grounds of appeal, the
appellant attacks the decision of the court a quo on the basis that the court misdirected itself and erred
in three respects;
(i)
Firstly, that the court a quo failed to appreciate that the order to transfer was
punitive and therefore not lawful.
(ii) Secondly, that the appellant
was not consulted before the decision to transfer her was made.
(iii) Thirdly, that the Chief
Executive Officer was an interested party; he was the complainant, charged the
appellant, set the matter down, prosecuted, and chaired the meeting before
finding the appellant guilty of misconduct in violation of the nemo judex principle.
In her heads of argument, the
appellant submitted that the decision to transfer her was not an ordinary
transfer decided by an employer in order to maximise operational
efficiency. The transfer was to punish her on account of perceived
misconduct on her part, and, in particular, absenteeism. As no hearing to
determine the misconduct was conducted, the transfer in these circumstances was
unlawful. Further, her personal circumstances were not taken into
account. Inyati Mine is fifty kilometres from Rusape. The mine itself
is no longer operational and the greater portion of the road to the mine is on
gravel….,.
In its submissions, the respondent
rejected the suggestion that the transfer was unlawful. That the appellant
had absented herself from duty without authority was common cause. In the
circumstances, the respondent was within its rights to transfer the appellant
as there is no law which makes it mandatory for an employer to hold a
disciplinary hearing first before taking such a course. Considering the
appellant's conduct, which was well documented, the decision to transfer her
cannot, in these circumstances, be said to be unlawful. In the
respondent's opinion, the Chief Executive Officer exercised
restraint. Whilst he had the power to suspend the appellant and institute
disciplinary proceedings, he decided, instead, to transfer her to Inyati Mine -
some fifty kilometres away. Whilst it was known that the appellant was
married, she could commute. The appellant was better off being relocated
than being dismissed.
In the circumstances, the respondent
submitted that the transfer cannot be described as unlawful.
Taking into account the submissions
made by both parties, it seems to me that there are three issues that arise for
determination, although the second and third issues depend on the resolution of
the first.
(i) The first issue is whether the
transfer was, in the circumstances, unlawful. If it was, then that is the
end of the matter and this appeal must be decided in favour of the
appellant. In the event that a finding is made that the transfer was
lawful, the issues that would follow are whether, firstly, the decision to
transfer her is unlawful on account of the failure by the respondent to consult
her and take into account her personal circumstances.
(ii) Secondly, whether the
involvement of the respondents' Chief Executive Officer in the proceedings
violated the nemo judex
principle.
I proceed to consider the first
issue.
Before doing so, it seems to me
pertinent to note that, on the papers, it is not clear in what capacity exactly
the appellant was to be employed at Inyati Mine. It is also not clear what
operations the respondent had at the mine. However, before the penalty of
dismissal was pronounced during the disciplinary hearing, the Works Committee Chairperson
present exhorted the respondent to reconsider its decision to transfer the
appellant to Inyati Mine and instead transfer her to other Council departments
within Rusape, or, alternatively, to other Council offices at Nyazura or
Headlands which were nearer and situated along the main tarred road where
transport was not a problem.
I revert to the question whether the
transfer of the appellant was, in the circumstances, unlawful.
In terms of the common law, an
employer has the right to unilaterally vary the terms of employment, such as
the duties being done by the employee, the location of work or
department. This may be necessary, inter
alia, to re-organise the operations of the employer, to facilitate
disciplinary investigations; provided always that such variation is not
substantially different from the contract job description or does not result in
the substantial downgrading of the status and dignity of the employee or is in
breach of a legitimate expectation of the employee – Labour Employment Law in Zimbabwe, Relations of work under Neo-Colonial
Capitalism, M GWISAI…,.
A temporary transfer to facilitate
investigations into possible criminal activities is lawful – Chimenya v Associated Textiles Limited SC201-94.
In Director of Works & Anor v Nyasulu & Ors, 2002 (1) ZLR
658 (S), the respondents, who were employed as Farm Managers by the City of
Harare, received warning letters from the appellant based on allegations of
unsatisfactory performance of their duties. They refused to sign the
letters as they were not sure what the consequences of signing would
be. Their immediate supervisor regarded their failure to sign as
disrespectful.
Subsequently, the respondents
received letters transferring them elsewhere in the service of the Council. The
respondents applied to the High Court for an order setting aside the transfers
on the basis that the transfers were punitive. The High Court agreed and
set the transfers aside. The City of Harare unsuccessfully appealed
against that determination.
In dismissing the appeal, this
Court, per ZIYAMBI JA, remarked…,:-
“I am in respectful agreement with
both conclusions reached by the learned judge. It is, therefore, my view that
the learned judge was correct in holding that the rules of natural justice had
not been complied with in that the respondents were not afforded a hearing
before the punitive measures of warnings and transfers were taken against them…,.”
And at p665 A, the learned judge
continued:-
“As the learned judge remarked, even
if the penalty of transfer had not been imposed, the appellants would have had
an entitlement to be heard before the issue of the letters of warning.”
The authorities to which attention
has just been drawn emphasise two important principles in our labour law. These
are;
(i) Firstly, that an employer does
have the authority to transfer an employee in order, inter alia, to enhance operational efficiency or to
facilitate investigations.
(ii) Secondly, an employer, whatever
the circumstances, has no right to invoke a transfer as a punitive measure
outside of the disciplinary framework.
It must always be remembered that a
transfer can be ordered as part of the penalty imposed on an employee found
guilty of misconduct.
In this case, there can be no doubt
that the respondent, and, in particular its Chief Executive Officer, believed
that the appellant was guilty of absenteeism. The appellant had indeed
been moved from the Finance Department to the Health Department for that
reason. That transfer was within Council premises in the same town. No-one
complained.
The transfer to Inyati Mine was
different.
This was a transfer of a married
woman with school-going children. The transfer obviously necessitated her
being away from her husband, and, in particular, minor children. Inyati
Mine is fifty kilometres from Rusape. It is not easily
accessible. Whilst it was once a bustling mining centre, its operations as
a mine ceased years ago. Transport to and from Inyati Mine, mostly on a
gravel road, is not easy. It is not even clear on the papers what position
the appellant was to assume on reporting for duty there or where she was to
stay. Whilst the decision to transfer her was made, no detail is apparent
on the papers as to what was to happen once she got there.
In my view, once the respondent had
formed the opinion that the appellant was misconducting herself, a disciplinary
hearing should have been held to determine whether she was, in fact,
guilty. After all, whilst the appellant admitted being absent on the
occasions cited in the correspondence, she never admitted, at any stage, that
she did not have a lawful excuse. At one stage, she made it clear she had
gone to Honde Valley to collect a sick uncle whom she took to Harare. The
uncle subsequently died. When she absented herself in order to attend the
funeral, she was regarded as being absent without lawful excuse and was made to
write a report on such absenteeism.
In a situation such as that, in
which the respondent found itself, proper disciplinary proceedings should have
been conducted. In the event that it was found that the appellant had no
lawful excuse to be absent, she could have, as part of the penalty, been
transferred to any other department of the appellant. In proceeding to
transfer the appellant in the manner it did, the respondent fell foul of the audi alteram principle. It found
the appellant culpable without holding any disciplinary proceedings, and, in
the result, imposed, as a penalty, an order that the appellant transfers to a
place some fifty kilometres away where transport was difficult. The
inference that this transfer was punitive, or intended to be a punishment, is
inescapable.
It seems to me an opportune time to
emphasize that whilst transfers effected in the ordinary course of operations
are appropriate, transfers that are punitive, based purely on perceived
misconduct on the part of the employee, are not acceptable as they are
unlawful. A punitive measure can only be predicated on a proper finding of
culpability following proper disciplinary proceedings.
I am satisfied that the order that
the appellant transfers to Inyati Mine was, in the circumstances of this case,
punitive, and therefore unlawful.
Further, I am satisfied that, given
the appellant's circumstances, her personal wishes, and views should have been
taken into account before the ultimate decision to relocate her some fifty
kilometres away at some disused mine premises was made. See Director of Works & Anor v Nyasulu &
Ors, 2002 (1) ZLR 658 (S)….,.
In the result, the appeal must
succeed. It is accordingly ordered as follows:-
1. The appeal is allowed with costs.
2. The judgment of the court a quo is set aside and in its place
the following substituted:-
“(a) The decision of the arbitrator
of 3 November 2006 confirming the dismissal of the appellant is set aside.
(b) It is ordered that the appellant
be reinstated to her position with the respondent without loss of salary or
benefits. Should re-instatement no longer be possible, the respondent is to pay
to the appellant such damages as may be agreed upon or, that failing, as are,
upon application, quantified by this Court.
(c) The respondent is to pay the costs of the
appeal.”
