At the end of the hearing, the Court dismissed the appeal with costs having determined that it was without merit. It was indicated that the reasons would follow in due course.   

These are they.

The appeal is from the decision of the Labour Court holding that the appellant had no locus standi in the proceedings before it. The question for determination is whether a universitas personarum at common law can substitute itself for a workers committee created by statute and enforce its statutory rights which can only be enforced by a workers committee in terms of the Labour Act.

The facts are common cause.

The appellant is a voluntary association of former members of the Zimbabwe National Water Authority (ZINWA). On 29 January 2009, while presenting the National Budget for the Year 2009, the acting Minister of Finance announced the Government's decision to decentralise the management of the use of water to local authorities with effect from 1 February 2009. As a result of the decision, management of the use of water in Gweru was transferred to the respondent together with the employment of the appellant's members in the undertaking in terms of section 16(1) of the Labour Act (“the Act”). The respondent engaged the appellant's members on terms and conditions inferior to what they enjoyed at the Zimbabwe National Water Authority (ZINWA) immediately prior to the transfer. The appellant took up a complaint of an unfair labour practice with a labour officer alleging that the respondent's conduct was in breach of section 16(1) of the Labour Act. A certificate of no settlement was issued and the matter was referred to compulsory arbitration. The appellant did not act to represent the case of the employees but acted in their place as the possessor of the rights it sought to vindicate. 

In other words, it sued in its name.

On 14 January 2010, the appellant obtained an arbitral award in its favour as against the respondent. The parties approached the arbitrator for the quantification of the award. A hearing was conducted on 7 April 2010 and the arbitrator issued an arbitral award on 30 April to the effect that the award of 14 January 2010 was to be enforced in terms of a table from the Zimbabwe National Water Authority showing the wages and salary rates that the appellant's members enjoyed as at the date of transfer from ZINWA to the Gweru City Council. On 26 May 2010 and 27 July 2010, the arbitrator issued further awards dealing with the implementation of the original award of 14 January 2010. A deadlock ensued between the parties and the arbitrator on the meaning of the awards. On 30 August 2010, the arbitrator issued what he termed an “interpretation award.”

The appellant appealed against the 'interpretation award'. The respondent raised, as a preliminary point, the question whether the appellant had locus standi to sue or be sued.

At the commencement of the hearing, counsel for the respondent submitted that the respondent was no longer challenging the appellant's locus standi. The appeal in that matter was allowed by the Labour Court under judgment no. LC/MD/26/11. Subsequently, the award of 14 January 2010 was quantified by the arbitrator on 9 August 2012. On 22 August 2012, the respondent appealed to the Labour Court seeking an order setting aside the quantification award on the ground that it was a nullity as the appellant was not a legal entity capable of suing and being sued in its own name.

The appellant argued that the Labour Court was functus officio in relation to the locus standi issue. It further argued that the respondent had waived its right to challenge the locus standi of the appellant when it made the concession on the issue at the hearing of the appeal on 14 September 2011. On 20 April 2013, under judgment No. LC/MD/43/13, the Labour Court found that it was not bound by the concession which was wrongly made. It found that its earlier decision was void as the appellant had no locus standi. On this basis, the Labour Court set aside the quantification proceedings.

The appellant was aggrieved by that decision and noted the appeal to the Supreme Court.

The dispute arose from the enforcement of the rights of workers arising from the transfer of an undertaking provided for under section 16 of the Labour Act. The appellant is a universitas personarum, created in terms of its own Constitution, capable of suing and being sued in its own name.

The question is whether a universitas personarum can sue in its own name for the rights of employees provided for under section 16 of the Labour Act.

The applicant approached this court, under a certificate of urgency, seeking a provisional order in the following terms-

“Interim Relief granted

1. That the transfer of applicant to Murewa be suspended until this application is finalized.

2. That if applicant is already in Murewa he be returned to Beitbridge until the application is finalized.

Final Order

1. That the transfer of applicant to Murewa be and is hereby reversed.

2. That the respondents reconsider recommendations and adoption [of] the applicant's transfer from Ministry of Home Affairs to Ministry of Justice and Legal Affairs respectively.

3. That if the respondents oppose the application, costs on a client attorney be ordered against the officer that opposes personally.”

The salient facts of the matter are the following.

The applicant is a police officer holding the rank of Assistant Inspector. For a period of around six (6) years the applicant had been seconded to the Beitbridge Public Prosecutor's office as a public prosecutor. During this period he studied for a law degree through distance education via the University of South Africa. He made quite some progress towards the attainment of his law degree. This encouraged him to seek a permanent transfer to the Ministry of Justice and Legal Affairs. Whilst his application for lateral transfer was under consideration, he was transferred from the Public Prosecutor's office to the Zimbabwe Republic Police. He suspects that one of the magistrates in Beitbridge authored the termination of his secondment. His secondment was terminated on 26 June 2009. In July 2009 the applicant went on vacational leave and was due to report back in September 2009. He did not do so. He states that he fell ill and was on sick leave until 30 November 2009. Whilst he was on sick leave he was transferred to Murewa. He was also arrested for being absent without official leave. He was detained for three days at Beitbridge Police cells. He was taken to Murewa where he was released without charge.  He, thereafter, made his own investigations and he managed, somehow, to lay his hands to a memorandum written by the first respondent to the second respondent recommending his transfer.

The applicant does not explain how he managed to get a copy of this memorandum.

Having read the contents of this memorandum he decided to institute this chamber application.

The applicant was appointed by the first respondent, initially as a lecturer, then later as a Dean of Studies in the same institution.

While she was in occupation of this position, on the 12^th day of December 2012, she received a letter from the second respondent, who is Acting Vice-Chancellor of the first respondent, advising her that the second respondent intended to appoint certain persons to the position of Acting Dean of Agricultural Sciences and Acting Dean of Humanities. She says such appointments are a breach of the express terms, alternatively, the implied terms of her contract with the first respondent.

She said her letter of appointment, as Dean of Studies, granted her authority over the Faculties of Agricultural Sciences and Humanities and Social Studies, and the effect of the purported appointments will limit the scope of her authority insofar as she will only have oversight over certain departments within the Faculty of Humanities.

She also pointed out that in terms of Clause 5.1 of the Faculty of Governance Ordinance 23, the Dean is the Chief Academic, Administrative and Finance Officer for the Faculty. She went on to state that the appointments are unlawful as the first respondent is a statutory body and its members are bound by the provisions of the Lupane State University Act [Chapter 22:25] and appointments made in contravention of the Lupane State University Act [Chapter 22:25] are invalid. She said the second respondent does not have the power to make the appointments and is acting ultra vires the provisions of the Lupane State University Act [Chapter 22:25]. She said such powers are held by the Senate.

Prior to this, she had once been suspended, and Acting Deans were appointed, but when she challenged the appointments she was reinstated and the appointments of Acting Deans were set aside, but despite a memorandum to that effect they were allowed to continue in occupation of the offices they had been granted and enjoying the benefits that accrued to those positions. She instituted a court application for contempt of court which is still pending under case number HC2311/12. She complained that she will suffer prejudice as the purported appointments of Acting Deans will unlawfully usurp certain of her powers and responsibilities as Dean of Studies and affect her ability to perform her duties.

She seeks, in a provisional order, that the second respondent be interdicted from making those appointments, and that if the appointments have been made, that such persons be removed from those appointments.

The second respondent, who deposed to the opposing affidavit on behalf of the first respondent by virtue of his position as its Acting Vice Chancellor, said only the first respondent should have been sued. He said the applicant has no locus standi to challenge the appointments of Acting Deans and it was not within her right to challenge the appointments. He said she had not established that she has a prima facie right or that any of her rights have been violated and that there is no other remedy. He said since the appointments have been effected she cannot use an interdict to address perceived past wrongs. He went on to state that the applicant will not suffer any financial prejudice as she will continue to receive her pay in terms of her contract of employment. He prayed for the dismissal of the urgent application with costs.

The second respondent also submitted that the Lupane State University Act [Chapter 22:25] does not deal with the smooth running of the University such as interim measures and appointments of persons in acting capacities.

After hearing both parties, I make the following observations:

1. The Acting Vice Chancellor had to be included as the appointments were made by him.

2. The fact that the Acting Deans continue to occupy offices allocated to them does not affect or violate the applicant's rights. She does not own those offices.

3. The fact that the 1^st respondent has advanced some persons to positions of Acting Deans does not violate the applicant's rights.

4. The fact that the appointments of the Acting Deans may not have been made in accordance with the provisions of the University Act does not violate the applicant's rights.

5. In my view, what violates the applicant's rights is the allocation of responsibilities, that is, if the appointed Acting Deans interfere with the rights and powers of the applicant to carry out her officially allocated functions in terms of her contract…,.

It is clear from the papers that the applicant is concerned with the possible interference of her authority to carry out her functions as Dean of Studies. Her concern should be limited to that and that only….,. The main grievance of the applicant is clearly stated in paragraph 5(e) of her founding affidavit where she says:

“I will suffer prejudice insofar or as the purported appointments will unlawfully usurp certain of my powers and responsibilities as Dean of Studies and affect my ability to perform my duties.”

In my view, the following order grants her the relief she seeks:

Order

1. The first and second respondents are interdicted from interfering with or usurping the applicant's powers, authority and functions granted to her by the terms of her contract as Dean of Studies.

2. In the event that such powers have been removed or altered they must be restored.

The applicant filed an application in terms of section 3 of the Administrative Justice Act [Chapter 10:28]. In this application, the applicant seeks an order in the following manner:-

i) An order setting aside the decision of the respondent to transfer the applicant without giving him an opportunity to be heard.

ii) An order setting aside the decision to demote the applicant to an inferior post.

iii) An order setting aside the decision to serve the applicant with a notice to vacate a Masvingo Government residence without alternative accommodation as being unlawful unprocedural, unreasonable, unfair and substitute it with an order that:

1) The Masvingo status quo ante be restored without the loss of benefits, or, alternatively, if the applicant remains at Gweru, that he occupies the office of the Area Public Prosecutor attendant with all its benefits.

2) The notice to vacate the Masvingo Government accommodation without alternative Government accommodation be declared invalid.

The appeal intended to be made to the Supreme Court should leave be granted would have no prospects of success. 

The application is without merit. 

The facts show that the applicant agreed with the respondent that a new contract of employment be entered into taking into account changes brought about by the dollarization of the economy in March 2009. Both parties understood that the services rendered by the applicant in the performance of his work with the respondent needed to be valued and paid in United States Dollars.

The applicant received the document containing the proposed terms and conditions of the new contract of employment. The new contract made no reference to certain allowances. The applicant had three days within which to study the terms and conditions on which the new contract was being offered. He then had to decide whether to accept or reject the offer.

After careful consideration of the terms and conditions of the new contract, the applicant decided to accept them and signed the document. He said he decided to sign the document because he wanted the money. The applicant knew that by signing the document he was entering into a new contract of employment with the respondent. The applicant was a Purchasing Manager. He knew the legal effect of his actions. The conduct of the parties brought about the mutual termination of the old contract of employment. The argument accepted by the arbitrator that the respondent unilaterally varied the old contract of employment had no basis in the facts.

There is a principle of law to the effect that employment conditions do not remain static. Contracts of employment will respond to the changes in the fortunes of business. Chirasasa v Nhamo N.O. & Anor 2003 (2) ZLR 206 (S)…,. 

It was not difficult for the applicant to appreciate why there was need for the changes that took place. If the parties appreciated that fact and freely acted in accordance with its demands, there can be no scope for a court to interfere with their conduct.

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.

This is an appeal against the whole judgment of the Labour Court which upheld the arbitration award overturning the decision of the disciplinary committee dismissing the four respondents from employment.

There is no material dispute of facts as most issues forming the basis of this appeal are common cause. The undisputed facts are that the respondents were employed as Chief Designated Agents by the appellant. On 16 August 2012, the appellant gave written notices to transfer the respondents to various work stations in the country with effect from 1 January 2013.

The envisaged transfers were in line with the employer's policy and practice to rotate designated agents after serving in a particular area for a given period. This was meant to promote effectiveness, accountability and exposure of employees to new challenges.

The notice provided the respondents with at least three (3) months grace period for them to wind up their business and personal affairs in Harare for a smooth transfer to their respective new work stations.

The respondents were however disturbed and not amused by the impending transfers. They thus vigorously objected to the transfers citing personal hardship and inconvenience. In their concerted effort to resist and abort the intended transfers they roped in the services of lawyers.

Despite the spirited resistance and intervention of lawyers, the appellant insisted on the transfers as ordered. The respondents were however equally adamant and unmoved as they steadfastly refused to obey the employer's lawful orders given in accordance with their respective contracts of employment.

The net result was that when the date of compliance came to pass all the four respondents were not at their new work stations. Their failure to transfer, as ordered, was in open defiance of the employer's lawful orders given in terms of their respective contracts of employment.

The disobedience was wilful and deliberate.

A stalemate having been reached, the appellant charged the respondents with wilful disobedience to a lawful order in contravention of section 4(b) of the National Employment Code of Conduct, S.I.15 of 2006, alternatively, any act or omission inconsistent with the fulfilment of the express or implied conditions of his or her employment contract in contravention of section 4(a) of the National Employment Code of Conduct, S.I.15 of 2006.

Both offences constitute serious dismissible acts of misconduct.

The disciplinary committee found all the four respondents guilty as charged and ordered their dismissal from employment. The dismissals were premised on the finding that the aggravating features outweighed the mitigating factors.

Aggrieved by both conviction and penalty, the respondents referred the matter for conciliation in terms of Part XII of the Labour Act [Chapter 28:01] without success. The matter was then referred for arbitration in terms of section 12B(4) of the Labour Act [Chapter 28:01].

The arbitrator confirmed the convictions but reduced the penalties from dismissal to final written warnings on the basis that the mitigating factors outweighed the aggravating features.

Dissatisfied with the arbitration award, the appellant appealed to the Labour Court which dismissed the appeal and upheld the arbitration award hence this appeal.