CHEDA
JA:
The
appellant is employed by the Traffic Safety Council of Zimbabwe as a
Regional Manager. He was based at their Gweru Office from where he
was transferred to the Masvingo Office.
The
dispute which led to this case arose from his lateral transfer from
Gweru to Masvingo.
On
14 November 2003 the respondent's Deputy Director, Finance and
Administration, wrote a memorandum to the appellant advising him that
he is transferred to Masvingo on a lateral transfer with effect from
1 January 2004 as result of a meeting which had been held by the
Directorate of the respondent on 10 November 2003.
Reasons
for the transfer were given in the memorandum as follows:
1.
Training of managers through job rotation and enrichment.
2.
That the Masvingo Office was performing better than the Gweru Office
though the Masvingo Office was apparently smaller.
3.
That the transfer had been necessitated by a thorough consideration
of the likely impact on production and consequent benefits thereto.
The
appellant wrote back to the Director of Finance making his
submissions against the transfer.
The
reasons that he gave were personal. He requested that the transfer to
Masvingo be put on hold but did not say for how long.
It
is common cause that after the appellant had made his submissions a
meeting of the Directorate was held on Wednesday 19 November 2003 to
deliberate on the representations made by the appellant.
On
20 November 2003 the Deputy Director wrote to the appellant advising,
among other things as follows:
“The
directorate held a meeting at 11.00 hrs to deliberate on the issues
on Wednesday 19 November 2003. We sympathise with the personal
circumstances in which you are. Also we note that you are doing some
publications concerning Traffic Safety work which could be made
easier in Gweru. Nevertheless, the directorate realizes that each of
us, forty seven (47) employees in all have different personal
circumstances, some of them could be much more taxing than yours. The
directorate considers each case on its own merits but guided by the
fact that the individual needs and goals are subordinate to those of
Traffic safety Council.”
The
letter ended with the following statement:
“Having
made a thorough consideration of your submissions, the directorate
resolves that the earlier decision to transfer you to Masvingo with
effect from 1 January 2004 still stands.”
On
27 November 2003 the appellant wrote a long letter to the respondent
appealing against the decision to transfer him to Masvingo and asking
that it be reversed.
He
did not succeed.
He
took the matter to the Labour Relations Office alleging victimization
and unfair transfer.
The
Labour Officer referred the matter to Arbitration.
The
arbitrator held that the respondent had not observed the dictates of
the audi
alteram partem rule
and declared that the transfer was unlawful and should be reversed.
The
Traffic Safety Council of Zimbabwe appealed against that decision at
the Labour Court. The Labour Court upheld the appeal and confirmed
the decision to transfer the appellant.
The
appellant now appeals against the decision of the Labour Court. The
appellant's grounds of appeal are as follows:
1.
The Labour Court made a total error of law in its interpretation of
clause 8.5 of the Traffic Safety Council of Zimbabwe's conditions
of service as regards the transfer of employees.
2.
The Labour Court incorrectly interpreted the audi
alteram partem principle
and therefore wrongly applied the doctrine on finding that it was
observed by the respondent.
3.
The Labour Court erred in law on finding that my legitimate
expectation to be heard was fulfilled by the respondent.
The
appellant does not dispute the contents of the letter addressed to
him on 20 November 2003. His contention is that the original decision
of 10 November 2003 should never have been made without him being
granted a hearing. He referred this Court to the respondent's
conditions of service, and to the case of Taylor
v Minister of Higher Education & Anor
1996 (2) ZLR 772 (S).
It
is conceded and rightly so, by the respondent, that the appellant
should have been granted a hearing before the decision to transfer
him was made. Indeed, that is the principle laid down in Taylor's
case.
The
appellant's attitude in his submissions is that once that decision
was unlawful it should be set aside.
If
the matter had ended there with that decision made in that manner I
would have no hesitation in holding that it was improper, to handle
the transfer in that manner although declaring it unlawful would
remain an arguable issue depending on the circumstances of the case.
However,
that is not the position in this case.
To
begin with, the appellant made submissions, detailed submissions, in
writing, against the transfer. As a result, the respondent's
directorate held a meeting to deliberate on his submissions.
It
is not as if, the respondent refused to hear him.
Can
it be said that once the appellant made representations the employer
should necessarily have made a different decision?
I
do not believe that to be the position and the appellant cannot say
that is the position either.
Secondly
it has not been shown that the respondent made its original decision
on the basis of grounds which have since been proved to be incorrect.
It
was still open to the respondent to arrive at the same decision even
after hearing the appellant.
It
must be accepted that the right to transfer an employee from one
place to another is the prerogative of the employer. It is the
employer who knows better where the services of an employee are
required. The employer's discretion in determining which employee
should be transferred and to which point of the employer's
operations is not to be readily interfered with except for good cause
shown.
Good
cause in the circumstances, while not easy to define, would include
such matters as unfounded allegations, victimization of the employee
and any action taken to disadvantage the employee.
The
reasons for transferring the appellant were given in its very first
correspondence. It is not as if the reasons were made to counter the
appellant's objections. Even if the reasons had not been given in
the first correspondence to him, the reasons would still be valid as
long as they are genuine.
The
employee who undertakes to work for an employer whose business is
carried out at different places takes the risk of being sent to
perform services for the employer where ever such services are
required unless the employment contract stipulates that he is to be
employed and remain at a specific place only. See Ngema
Chule v Minister of Justice: Kwazulu & Anor
1992 (4) SA 349.
While
the respondent may have erred in not giving the appellant a hearing
in the very first place, I am satisfied that since the respondent did
not compel the appellant to go on transfer before he was heard, but
deliberated on the issue before re-affirming its previous decision
the requirement of the audi
alteram partem rule
was complied with.
There
is nothing in the Labour Court's judgment which points at a wrong
interpretation of clause 8:5 to 8:5.3. of the appellant's
conditions of service. That clause deals with transfer costs and
it
is not the appellant's case that he was denied such costs.
That
ground of appeal is baseless.
Taylor's
case
which appellant relied on in most of his submissions, while
emphasizing the need for an officer to be heard before transfer,
cannot be said to set the precedent that a decision made after the
officer has complained must necessarily be different.
Further
to that, in Taylor's
case
there was an allegation of victimization, and there was no indication
that after he had complained there was any further consideration of
the matter. He had
also asked for reasons for the transfer and
they were never supplied.
The
court a
quo
in Taylor's
case
had interpreted the phrase “without his consent” in the
Regulations as meaning that the employee had no right to be heard.
In
the case before this Court it is my view that although the employee
has a right to be heard, and to make representation against the
transfer, the final decision still lies with the employer.
Once
it is shown that the employer gave consideration to the need to
transfer an employee and gave that employee a hearing, the employer's
decision cannot be held to be improper.
In
Taylor's
case
the appeal court went further and pointed out that in some cases an
employer can still transfer an employee without giving him or her a
hearing, depending on the special circumstances of the case and that
it would be unworkable if every employee were to be consulted before
a transfer or decision is made.
In
conclusion, I am satisfied that even if the appellant in this case
had not been given a hearing when the decision to transfer him was
first made, once he complained and the directorate met and
deliberated on the matter, his legitimate expectation to be heard was
met, the audi
alteram partem
rule was complied with and the decision to transfer him, cannot be
set aside.
In
the result, the appeal is dismissed with costs.
SANDURA
JA: I agree
GWAUNZA
JA: I agree
Dube,
Manikai & Hwacha,
respondent's legal practitioners
