Calvin Matsinde v Zimbabwe Red Cross Society

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/225/2016
HARARE, 9 MARCH 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/225/2016

HARARE, 9 MARCH 2016 			     	     CASE NO. LC/H/627/13

AND 22 APRIL 2016

In the matter between:-

CALVIN MATSINDE						-	Applicant

And

ZIMBABWE RED CROSS SOCIETY				-	Respondent

Before Honourable L.M. Murasi, Judge

For Applicant	-	Mr A. Chambati (Legal Practitioner)

For Respondent	-	Advocate S. Hashiti (Instructed by Coghlan, Welsh

& Guest)

MURASI J:

This is an application for leave to appeal to the Supreme Court in terms of section 92 F (1) of the Labour Act [Chapter 28:01]. This Court dismissed applicant’s appeal against respondent’s decision to find him guilty and dismissing him from employment.  Applicant’s grounds of relief at the Supreme Court are as follows:

That the Court a quo misdirected itself by making a finding that at law there was no need for the respondent to first consult the appellant a senior managerial employee before transferring him from the posts of National Programmes Coordinator in charge of all of the appellant’s (respondent) programmes and programme staff to the post of National Training Centre Manager in charge of just one programme and a training centre.

That the Court a quo misdirected itself by ignoring the provisions of section 2A (1) (e) of the Labour Act [Chapter 28:01] which require that employees participate in the making of decisions which affect their interests.

That the Court a quo misdirected itself in making a finding that the order given by the respondent to the applicant was a lawful order when it was clear that the order was unlawful as it violated section 2A (1) (e) of the Labour Act [Chapter 28:01] and as it was a material variation of the applicant’s contract of employment without his consent and could therefore not be lawful.

That the Court a quo misdirected itself in making a finding that the failure by the respondent to entertain the applicant’s grievance had nothing to do with the fairness of the applicant’s dismissal where it was clear that it was not fair for the respondent to first rush to dismiss and take punitive action against the appellant without first hearing and entertaining his grievance which grievance was related to the subsequent disciplinary action taken against the applicant and his subsequent dismissal.

Mr Chambati for the applicant stated that he abided by the documents filed of record.  He submitted that there were prospects of success on appeal as the issue to be determined by the Supreme Court was whether a refusal to accept new terms of contract was unlawful and therefore an act of misconduct.  Mr Chambati further submitted that the Labour Court in the Netsai Chizema case LC/H/696/2014 had stated that the refusal to accept new contractual terms was not unlawful and did not amount to an act of misconduct.  Applicant’s Counsel further relied on the case of Colcom Foods Ltd v Kabasa SC 70/02 and stated that the Supreme Court had held that the refusal by the employee to accept the change on his conditions of service did not amount to an act of misconduct.  Mr Chambati reiterated the fact that an employee should be given the opportunity to be heard before a decision affecting his employment is made.  To this end he relied on the Taylor case.  It was argued that the Supreme Court was likely to arrive at a different decision.

Advocate Hashiti stated that he largely abided by the heads of argument filed of record.  He submitted that the Supreme Court has already made a decision in which it was held that it is an employer’s prerogative to organise its operations and the resultant transfer of employees.  He cited the Danai Gurira case in which he state that the Taylor case was referred to.  Advocate Hashiti stated that in this instance the applicant had been consulted and asked to make representations.  It was further argued that even where the employee is allowed to make representations, these may still be disregarded as the employer will most likely arrive at the same decision.  It was further submitted that the record showed that applicant had refused to carry out a handover/takeover exercise which was clearly an act of misconduct which applicant had not alluded to both in the appeal and the application.  As far as the second ground of appeal is concerned. Advocate Hashiti stated that the Supreme Court has already held that it is not up to the employee to determine what is lawful and what is unlawful at the workplace and the applicant was asking the Supreme Court to condone his errand ways. It was further submitted that applicant’s dismissal had nothing to do with section 2A of the Labour Act and the transfer did not prejudice him in any way. Advocate Hashiti stated that the issue of esteem raised by the applicant was not a contractual issue.  As far as the grievance issue raised by the applicant was concerned, it was submitted that the grievance had nothing to do with respondent’s operations and was also being raised for first time.  As far as the reliance made by applicant’s Counsel on the judgment of the Labour Court, it was argued that the judgment was persuasive and not binding on the Court.  It was lastly submitted that the Court should bar the frivolous application from being referred to the Supreme Court.

Generally, leave to appeal is granted where there are reasonable prospects of success on appeal and that the matter to be appealed against is of substantial importance to both parties.  It has been stated that the fact that an appeal involves interesting points of law should not be regarded as a reason for granting leave to appeal.  As regards the prospects of success on appeal, Malaba DCJ anchored on this point in Ngazimbi vs Murowa Diamods (Pvt) Ltd S 27/13 in the cyclostyled judgment thus:

“It is important to relate the requirement for an application for leave to appeal to the purposes thereof.  These are for the decision to be made on the questions whether the grounds of appeal relate to questions of law and the existence of prospects of success on appeal.”

Applicant’s first ground of appeal avers that the Court misdirected itself by stating that there was no need for respondent to first consult the applicant before making the transfer.  The Court’s finding in this regard appears to have been taken out of context.  The Court did not categorically state that there was no need for the respondent to consult the applicant.  What the Court stated in this regard is clearly captured on page 4 of the judgment.  The Court’s finding was:

“The Court is of the view that where fundamental charges would adversely affect the employee, there would be need to consult.  For example, where an employee would need to be re-located to the extent that he/she would be prejudiced by such transfer there would be need to make consultations. This also applies to a situation where the employee’s benefits would be affected.”

The above-quoted passage does not show that the Court made a finding that there was no need to consult the applicant.  In fact the Court gave some criteria which should be taken into consideration when effecting the changes that need consultation.  The Court in the judgment referred to applicant’s allegation of loss of self esteem.  The Court has not heard the applicant to categorically state that the movement proposed by the respondent would prejudice him in the manner outlined by the Court in the judgment.  I have noted that Counsel for both applicant and respondent have sought to rely on the Taylor case but have cited different passages by Gubbay CJ (as he then was). Applicant’s reliance is on the general principle.  The respondent, on the other hand relies on a different passage relating to specific situation.  A telling note in the passage quoted by respondent is as follows:

“… it is not to be assumed that in every instance the person concerned must be accorded a hearing before any decision is taken to transfer him to another post of the same grade ….  In some cases, it will be necessary to hear the person in advance of the decision; in others not.”

This therefore means that the issue of consultation has already been determined by the Supreme Court.  There may be need to hold consultation in some cases but in others, such consultation may be dispensed with.  In casu, the applicant was informed of the decision to re-organise the work place which would result in the movement to another post.  Applicant has not demonstrated in what way he would have been prejudiced by that movement apart from his “self esteem”.  In Chirasasa and Others vs Nhamo NO and Another 2003 (2) ZLR 206 (S) the Supreme Court confirmed the position that an employee should be prepared for a subsequent change in the operations of the employer.  It was further stated that the employee should not cling to the original contract when there were evident changes necessary in the employer’s operations.  Mr Chambati sought to rely on the Labour Court’s decision in the Netsai Chizema case in LC/H/696/14.  The facts in that case were clearly different.  The appellant in that case had been assigned to somewhat changed duties and had not adequately been consulted.  In casu appellant was asked to made representations which he declined to do.  The cases are therefore, in my view, quite distinguishable.  Mr Chambati also placed reliance on the Colcom Foods case.  The facts in that case show that the Supreme Court confirmed the position that employer could proceed to terminate the employee’s contract on notice where that employee had refused to accept the demotion from being a director to human resources manager.  The reasons for the decision arrived at by the Supreme Court are clearly different from those applicant attempts to proffer in the instant case.  It is my view that the ground of appeal is unlikely to find favour with the Supreme Court.

The second ground of appeal avers that the Court misdirected itself by ignoring the provisions of section 2A (1) (e) of the Labour Act.  I should point out that the original appeal before this Court contained two grounds.  The issue that consideration should have been had to section 2A (1) (e) of the Labour Act was not raised in the appeal.  The Court was not seized with the matter.  I also agree that the applicant’s dismissal had nothing to do with the provisions of section 2A (1) (e) of the Act.  That section provides for a general atmosphere which is enjoined to prevail at the workplace.  That applicant was asked for his input is without doubt.  That applicant spurned these efforts is common cause.  An appeal is determined on the record and the Supreme Court is not likely to be convinced to consider an issue which was not placed before the court a quo for determination.

The third ground of appeal alleges that the Court misdirected itself in making a finding that the order given by the respondent was lawful.  The applicant states that the order by the respondent violated section 2A (1) (e) of the Act.  The applicant does not demonstrate in what manner the provision is violated.  The Court has already made the observation that the provision generally addresses what environment should exist at the workplace.  Applicant has not shown that the action by the respondent amounts to an unfair labour practice as defined in the Act.  I am in agreement with respondent’s Counsel that it is not up to the employee to determine what amounts to an unlawful instruction.  Applicant was given written instructions to follow and he refused to do so.  Applicant approached the Labour Court and the respondent awaited the decision of the Court.  Applicant’s application was dismissed and respondent re-instituted the disciplinary hearings.  Meanwhile respondent’s operations were at a standstill due to applicant’s decision not to co-operate.  The instruction came from applicant’s senior and applicant refused to comply.  By any stretch of imagination, this was a lawful instruction in the circumstances.

The last ground of appeal avers that the Court misdirected itself in making a finding that the failure by the respondent to entertain the applicant’s grievance had nothing to do with the fairness of applicant’s dismissal when it was clear that it was not fair for the respondent to first rush to dismiss and take punitive action against the applicant without first hearing and entertaining his grievance.  It is my view that the applicant is conveniently forgetting his part in dealing with the grievance issue.  The record shows that applicant filed this grievance with the respondent in terms of the Code of conduct.  The matter was given a date for hearing but was subsequently postponed to a later date.  On the appointed date, applicant had approached the Labour Court with the same issue which was to be determined by respondent.  Respondent suspended the determination of the grievance issue pending the decision of the Labour Court.  The Labour Court dismissed applicant’s case before it.  This therefore put paid to the matter brought before the respondent in terms of the Code of Conduct.  The respondent proceeded to prefer charges of misconduct against the applicant.  Was the respondent enjoined to deal with the grievance matter which had been dealt with by the Labour Court?  Certainly not.  It was not part of the proceedings before the disciplinary committee.  This is what the Court stated in the judgment and the factual situation has not changed.  Is the Supreme Court likely to overturn the Court’s judgment on that basis?  Very unlikely.  The facts are glaringly clear that the grievance procedure was abandoned by the respondent when applicant took it to the Labour Court.  Evidently the respondent could not have raised it after having received the judgment of the Court.  The matter was therefore res judicata.  This ground of appeal will therefore not succeed.

It is my view that having considered the grounds of appeal from the applicant, there are no prospects of success on appeal.  As observed elsewhere in the judgment most of the issues raised have already been determined by the Supreme Court and clarity on those already exists.  I also hold that the applicant has been unable to demonstrate that another court will arrive at a different decision on the same facts.  To this end I associate myself with the sentiments of Garwe JA in Fiona Chikurunhe & 234 Others vs Zimbabwe Financial Holdings 510/08 where he had this to say:

“The party seeking leave must show inter alia that he has prospects of success on appeal.  In other words, leave is not granted simply because a party has sought such leave.”

In the result I find that the application for leave to appeal to the Supreme Court is devoid of merit.  It is accordingly dismissed with costs.

Chambati, Mataka & Makonese Attorneys, applicant’s legal practitioners

Coghlan, Welsh & Guest, respondent’s legal practitioners