City of Harare v Memory Chiheya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/97/2013
HELD IN HARARE JANUARY 22, 2013
CASE NO. LC/H/19/2011
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/97/2013

HELD IN HARARE JANUARY 22, 2013		CASE NO. LC/H/19/2011

In the Matter Between

CITY OF HARARE				     	APPELLANT

And

MEMORY CHIHEYA					RESPONDENT

Before The Honourable L. Matanda-Moyo         : President

For The Appellant     		: Ms A. Zvoutete (Legal Practitioner)

For The Respondent  		: Mr T. Thodhlanga (Legal Practitioner)

MATANDA-MOYO L.,

This is an appeal against the Arbitrator’s ruling ordering Appellant to appoint Respondent to the position of Personal Assistant to the Human Resources Director, following a council resolution of 29 May 2008.

The brief facts are that the respondent is an employee of the appellant.  Sometime in May 2008 Appellant advertised a vacancy notice for Personal Assistant to the Human Resources Director which is a Grade 8 appointment.  Respondent amongst others responded to the advertisement. She was then invited to and attended an interview.  She was placed as an alternate candidate who would take up the post should the first choice turn down the offer.  The first choice was extended the offer and refused to take it up.  However, such offer was not extended to the Respondent.  The post was re-advertised and someone has since been appointed.  Respondent was aggrieved by the turn of events and instituted proceedings for unfair labour practice against the appellant.  The matter was referred for conciliation and subsequently for arbitration.  The Arbitrator found that appellant had committed an unfair labour practice against the respondent.  The Arbitrator ordered that the Respondent b e appointed to the post of Personal Assistant to the Human Resources Director or alternatively that the Respondent be paid the equivalent salary and benefits in the event that someone else had been appointed into the position.  It is against this award that Appellant had noted this appeal.

Appellant’s grounds of appeal are as follows:

That the Arbitrator misdirected himself at law in finding that the Appellant committed an unfair labour practice by not appointing Appellant to the post of Personal Assistant to the Human Resources Director when in fact no offer of employment had been extended to the Respondent.

The Arbitrator misdirected himself at law in appointing Respondent to Personal Assistant Grade 8 position when there is no such post and it is highly unreasonable for Respondent to be paid higher salaries and benefits whilst performing duties of an inferior designation.

The Arbitrator misdirected himself in proceeding as if Respondent had been the first choice for the post.  The decision is therefore unreasonable and outrageous to constitute a ground of appeal.

Failure by the Arbitrator to make a finding on Respondent’s qualifications vis-a-vis the post is unreasonable and outrageous in its defiance of logic to constitute a ground of appeal.

Appellant prayed for the setting aside of the arbitral award.

Respondent raised a point in limine that grounds of appeal 1 and 4 do not raise points of law and are improperly before me.  An appeal to this Court from an arbitrator’s award lies on a point of law in terms of Section 98(10) of the Labour Act (Chapter 28:01).  No appeal can be entertained by this Court on factual issues.  I am satisfied that a question of whether there was an offer to the Respondent raises a question of law and such issue is properly before me.  I am also satisfied that failure to make a determination on evidence presented constitutes a misdirection in terms of the law.  Ground of appeal 4 therefore raises a point of law.

Appellant submitted that a mere resolution by council to extend an offer for post of PA to HR Director to the Respondent upon refusal to take up the post by the first choice does not constitute an offer in terms of law.  Appellant referred me to Christie: The Law of Contract in South Africa (3rd ed.) at page 30 where the author said:

“... It is fundamental to the nature of any offer that it should be certain and definite in terms.  It must be firm that is, made with the intention that when accepted it will bind the offeror.”

See also Levenstein v Levenstein 1955(3) SA 615 (SR).

page 23 of the record is the council resolution of 29 May 2008.  It resolved that:

“(2) That in the event of the two candidates referred to in resolution (1) above failing to take up the offers of appointment candidates 6 and 7 named on the same interview schedule be offered the appointment on the same terms and conditions.”

According to the schedule candidate 6 is the Respondent in this matter.  The question which lies for determination is whether the above constituted a contract between the parties entitling Respondent to sue for breach.  I do not think so.  The above represented a resolution by Council.  Before such resolution is communicated to the Respondent there can be no offer.  Where there is no offer there is nothing to accept and hence no contract giving rights to parties to sue for specific performance.

Council resolutions are meant for the Appellant.  For the above resolution to constitute a valid offer it had to be communicated to the Respondent.  See Bloom v American Swiss Company 1915 AD 1000 where the court held that any offer must be communicated as no contract can arise from an uncommunicated offer.  Also in the case of Chirenje v Vendfin Investments (Pvt Ltd and Ors 2009(1) ZLR 196(S) Chidyausiku CJ had this to say:

“... It is the communicating of the offer that creates the vinculum juris, which in turn creates the entitlement to sue and the obligation to be sued.  As no offer was ever made to the appellant and his co-applicants, no vinculum juris was ever created entitling the applicants to sue the promissory on the undertaking to sell the property at the original price ...  Without the offer being communicated to the applicants and the applicants accepting such offer, the applicants could not sue or be sued upon the contract ...”

See also McCullogh v Fernwood Estated Ltd 1920 AD 204.

Applying the above principle to this case it is clear that the Respondent was never offered the post of Personal Assistant to the Human Resources Director and without such offer and acceptance by her, no rights accrue to the Respondent to sue the Appellant for specific performance.

Respondent on the other hand argued on the doctrine of legitimate expectation.  Respondent referred me to the cases of Minister of Information v PTC Managerial Employees Workers Committee 1997(1) ZLR 128 (S), Administrator Transvaal and Others v Traub and Others 1989(4) SA 731(A) and Matsola v Chairman PSC and Others 1989(3) ZLR 147(S) Respondent relied on the council resolution of 29 May 2008 which was rescinded by Council resolution of 23 June 2009.  Respondent argued that she had legitimate expectation to be appointed into the job.

The Supreme Court in the P.T.C. case supra stated that this doctrine of legitimate expectation had to be used with caution.  Respondent came across council resolution which indicated that she be offered the post.  She had no right to the council resolution.  As such the doctrine cannot arise from information not communicated officially.  It is common cause that such information was never communicated to the Respondent.  The Arbitrator fell into error when he found that how the Respondent got the information was irrelevant.

I am satisfied that the question of appointing persons into various posts lies with the employer.  The Courts should limit its interference in such matters.

Accordingly, the appeal succeeds and the decision of the arbitrator is set aside.

City of Harare Legal Division, Representing the Appellant.

Thondhlanga and Associates Legal Practitioners, Representing the Respondent.