City of Harare v Thomford Thom & 5 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/55/2016
HARARE, 21 JANUARY 2016 &
5 FEBRUARY 2016
CASE NO LC/H/APP/939/2015
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/55/2016

HARARE, 21 JANUARY 2016 &			     CASE NO LC/H/APP/939/2015

5 FEBRUARY 2016

In the matter between

CITY OF HARARE							APPLICANT

Versus

THOMFORD THOM						1ST RESPONDENT

And

MUDZINGWA RAMBANAPASI					2ND RESPONDENT

And

LETWIN KUREWA							3RD RESPONDENT

And

MANZIWE GAZIMBI						4TH RESPONDENT

And

OLAY CHITSA							5TH RESPONDENT

And

R MUSHONGA							6TH RESPONDENT

Before the Honourable P Muzofa J

For the Applicant     Ms A Zvoutete  (Principal Legal Officer)

For the Respondent   D C Ngwerume  (Legal Practitioner)

MUZOFA J:

This is an application for stay of execution of an arbitral award pending the determination of an appeal before this court.

The application is made in terms of section 92 E of the Labour Act [Chapter 28:01].

In order to succeed in such an application the applicant has to show that it has a prima facie right to the relief, that the applicant would suffer irreparable harm if the relief is not granted and that the balance of convenience is in its favour.

Prima facie right

To establish a prima facie right, the applicant has to demonstrate that it has prospects of success on appeal. The respondents were employed in different departments. The applicant introduced a management system that entailed lateral transfer for its employees. Many employees including the respondents were transferred in the same department but different

stations. The respondents refused to report at the new work stations, they were charged and dismissed for wilful disobedience to a lawful instruction.

The respondents challenged the dismissal on the basis that there was no lawful instruction to transfer since the applicant did not comply with the provisions of the Collective Bargaining Agreement Statutory Instrument 135/12 on transfers particularly section 28 (1) and (7) thereof. The arbitrator upheld the respondent’s contention.

According to the applicant the arbitrator erred by applying the principles of transfer set out in section 28 (3) which are applicable to interdepartmental transfers. This argument was not part of the applicant’s heads of argument. That as it maybe it is misplaced.

The arbitrator upheld the respondents’ case on the basis that the applicant did not comply with the provisions of section 28. According to the principles of transfer they have to be planned, notified in writing timeously to the employee concerned and before a transfer is effected:

“An employee shall be afforded an opportunity to make representations.” (subsection 7)

One letter was produced dated 1 December 2014 couched as follows:

“You are hereby informed that you have been transferred from Mbare District Office to Tafara District Office with effect from the 3rd of December 2014”.

This was for the second respondent. I believe the workstations varied for the rest of the respondents. According to the respondents they were called end of day on the 2nd of December and given the letters to report for duty on the 3rd of December at the new workstations.

The applicant could not clearly set out the order of events.

I cannot fault the arbitrator’s findings. There is a high likelihood that the transfers were not effected in terms of the Collective Bargaining Agreement. It seems the respondents were not timeously notified of the pending transfers and they were not afforded a chance to make presentations.

I believe there are no prospects of success on appeal. If the applicant failed to comply with the provisions of Statutory Instrument 135/12 the orders were unlawful.

Irreparable Harm

It was submitted for the applicant that the respondents had already had the award quantified and an application for registration of the award was pending before the High Court. In the event of its registration and execution if the appeal succeeds the respondents would be unable to pay the money back to the applicant since they would be unemployed. The applicant would therefore suffer irreparable harm.

The applicant has put out a case as if the determination in this case would impact on the quantified award. That is a separate award. The applicant has not requested this court to stay execution of the quantified award. In my view no prejudice would befall the applicant. This award per se is incapable of execution in the sense the applicant has put it. It does not sound in money. So the monetary prejudice does not arise.

Balance of Convenience

According to the applicant the balance of convenience favours it in that it is desirable that the matter be argued on the merits.

The granting of this order or otherwise does not in any way interfere with the matter on the merits. This submission is clearly inappropriate.

I am inclined to dismiss this application on the one main reason that there are no prospects of success on appeal.

Accordingly the following order is made:

The application for stay of execution be and is hereby dismissed.

Humunakwadi, Nyandoro & Nyambuya, respondent’s legal practitioners