City of Harare v Raymond Maratu & 24 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/206/2016
HARARE, 22 FEBRUARY 2016 & CASE NO LC/H/791/2015
8 APRIL 2016
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/206/2016

HARARE, 22 FEBRUARY 2016 &			           CASE NO LC/H/791/2015

8 APRIL 2016

In the matter between

CITY OF HARARE								APPELLANT

Versus

RAYMOND MARATU & 24 ORS						RESPONDENTS

Before the Honourable P Muzofa J

For the Appellant        A Zvoutete (Principal Legal Officer)

For the Respondents   S Banda (Legal Practitioner)

MUZOFA J:

The respondents are employed by the appellant in different capacities. On 1 December 2014 a letter was written by the Director of Corporate Services and Housing advising the respondents of their transfers. These were lateral transfers.

The respondents raised a grievance on the issue and the matter was eventually referred to an arbitrator. Two terms of reference were given to the arbitrator to determine whether the respondents should be appointed substantively to the position they held in an acting capacity and whether the transfers of the respondents had been procedurally effected.

The arbitrator found that he lacked jurisdiction to deal with the issue of appointments. In respect of the second term of reference he found that the transfers had been effected without following the proper procedure.

The appellant set out three grounds of appeal that the transfers were properly done in terms of the applicable Collective Bargaining Agreement and that the arbitrator erred by ordering parties to find an amicable solution by reference to a case before arbitrator Mutsinze.

I will dispose of the second issue first. It was submitted for the appellant that the arbitrator after making a finding that he lacked jurisdiction, he was not at liberty to address his mind on the issue of the appointments. No meaningful submissions were made for the respondents in respect of this issue.

The arbitrator indeed made a finding and correctly so that he had no jurisdiction to deal with the issue on appointments since it was pending before arbitrator Mutsinze. The arbitrator did not deal with the merits of the issue. However, according to the respondents, the issue of transfer was closely related to the issue on appointments. The respondents believed the transfers were made in order to defeat the appointments of the respondents to the positions they worked in an acting capacity.

In my view the arbitrator’s order is not a ruling on appointments, but a pointer to the need for parties to engage with a view to address the bigger picture. The order so to speak is not enforceable. It is more of advice than anything. The ground of appeal does not take the appellant’s case any further. There was no order that contradicts the finding that the arbitrator had no jurisdiction to deal with the matter.

There is no merit in this ground of appeal and is therefore dismissed.

The real issue for determination is whether the transfers of the respondents were done in terms of the applicable code.

According to the appellant the arbitrator erred by applying the provisions of section 28 (3) of the Collective Bargaining Agreement:  Harare Municipal undertaking (General Conditions of Service) Statutory Instrument 135 of 2012 (the Code) which was not applicable in the circumstances of the respondents. It was further submitted that the respondents’ situation was a lateral transfer, they were notified by letter dated 1 December 2014 at different work stations in the same department. There was therefore adequate notice.

For the respondents it was argued that transfers were regulated by the Code. Section 28 sets out the principles applicable in all transfers. In casu the respondents were not given an opportunity to make representations in terms of subsection 7 of section 28 and they were not notified timeously of the pending transfer. Further to that the respondents said they suffered prejudice in that their previous work stations were a walking distance from their homes.

The new workstations required transport costs and they had not budgeted for such changes.

As correctly stated by the appellant an employer has the prerogative to transfer an employee depending on the exigencies of the work. Employees in big organisations are expected to be alive to such transfers.  Guruva v Traffic Safety Council of Zimbabwe           SC 30-08. It is not for the courts to interfere with the proper administration of business and at its discretion to allocate resources (which include human resources) to its best advantage.

The prerogative should and must be tempered with the proper administration of justice. The appellant has incorporated the proper administration of transfers in its Code. A Code is an agreement between the employer and the employees how they will regulate their relationship.

The Code should be therefore adhered to. This does not take away the employer’s prerogative but it balances the interests of both parties.

In section 28 (1) parties agreed that transfers:

“(a)	Be planned to minimise discomfort.

(b)	Be notified in writing timeously to the employee concerned

(c)	Not be used as a punitive measure

…

(7)	Before any transfer is effected, an employee shall be afforded an opportunity to make representations.”

It was not in dispute that the appellant had and has the right to transfer the respondents in terms of subsection 2 thereof.

The contention by the appellant that the arbitrator applied incorrect provision is misplaced. A perusal of the arbitral award does not refer to section 28 (3) at all. The basis of the findings was that there was no evidence that the respondents were given an opportunity to make representations as set out in the Code.

I do not find anything grossly unreasonable in the arbitrator’s findings.

The appellant referred to letters written on 1 December, advising the respondents to report for duty on 3 December. It was the appellant’s point that was adequate notice. I did not hear the appellant address the issue on the opportunity to make representations. In view of that, that was a concession that the provisions of section 28 (7) were not complied with.

Clearly the transfers were not done in accordance with the proper procedures. I cannot fault the arbitrator’s findings on that aspect.

Accordingly the following order is made.

The appeal be and is hereby dismissed.

The arbitral award by Honourable A J Manase be and is hereby upheld.

No order as to costs.

V Mambara & Partners, respondents’ legal practitioners