City of Harare v Thomford Thom & 5 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/568/2016
HARARE, 4 FEBRUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/568/2016

HARARE, 4 FEBRUARY 2016		              CASE NO. LC/H/536/16

AND 23 SEPTEMBER 2016

In the matter between:-

CITY OF HARARE						Appellant

And

THOMFORD THOM					1st Respondent

MUDZINGWA RAMBANEPASI				2nd Respondent

LETWIN KUREWA						3rd Respondent

MANZIWE GAZIMBI					4th Respondent

OLAY CHITSA						5th Respondent

RODWELL MUSHONGA					6th Respondent

Before The Honourable E. Makamure, Judge

For Appellant		Mr. C. Kwaramba (Legal Practitioner)

For Respondents		Mr. D.C. Ngwerume (Legal Practitioner)

MAKAMURE J:

This is an appeal against an arbitral award wherein the Arbitrator set aside the employer’s dismissal of the respondents for willful disobedience to a lawful order and ordered their reinstatement with no loss of salary or benefits from date of dismissal or alternatively award them the appropriate damages.

The appellant was aggrieved by that award and appeals to this court on the following grounds:

“The Honourable Arbitrator erred at law by making a legal finding that the respondents’ lateral transfer was unlawful and yet it was lawfully done in accordance with the Collective Bargaining Agreement: Harare Municipal Undertaking (General Conditions of Source) S.I. 135/12.

The Honourable Arbitrator erred at law when he ordered reinstatement of the respondents without first setting aside the guilty verdict and or quashing the disciplinary proceedings.

The Arbitrator’s award is so unreasonable and irrational in its defiance of logic so as to constitute a ground of appeal in that:

The Arbitrator found that the order for lateral transfer of the respondents was unlawfully (sic) and hence the respondents could not have defied a lawful order yet the order of lateral transfer was lawful in terms of the Collective Bargaining Agreement: Harare Municipal Undertaking (General Conditions of Service) S.I. 135/12.

(j)	The Arbitrator set aside the penalty of dismissal and substituted it with reinstatement without first either setting aside the guilty verdict, or quashing the disciplinary proceedings.”

Basically grounds of appeal (a) and (c) (i) cover the same issues while grounds of appeal (b) and (c) (j) also cover similar issues.  The court will therefore in its judgment consider that there are two grounds. It is also important to note that the appellant is challenging the factual findings made by the Arbitrator and the procedure adopted when he (the Arbitrator) made an order for reinstatement.  It is trite that only issues of law and not fact are raised on appeal to this court from an award by an arbitrator.  Section 98 (10) of the Labour Act [Chapter 28:01] (the Act) provides as follows:

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”

The Supreme Court has set out clearly what a point of law is and has warned parties not to clothe their grounds of appeal with the words “at law” in order to make them appear as if they meet the necessary requirements when in fact they do not.  In Sable Chemical Industries Limited v David Peter Easterbrook SC 18/10 the Supreme Court (Garwe JA) stated:

“The term “question of law” is used in three distinct though related senses.  First it means “a question which the law itself has authoritatively answered to the exclusion of the right of the Court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter.  Second, it means “a question as to what the law is.  Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter” And third, “any question which is within the province of the Judge instead of the jury is called a question of law”- see Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S), 220 (D-F).”

The grounds as they stand do not meet the standard set by the Supreme Court.  The grounds are therefore not properly before me.  On the basis that the grounds of appeal are not properly before the Court alone, the appeal should fail.  However that notwithstanding, the merits will be considered.

It is common cause that the respondents were directed to transfer from where they were based to new work stations.  The directive was made on the 1st of December 2014.  On 2nd December 2014 their superior instructed them to collect transfer letters.  They refused to take the letters in question.  They also resisted the transfers.  This resulted in them being charged for wilful disobedience to lawful order.

The parties are governed by the provisions of Statutory Instrument 135 of 2012, the Collective Bargaining Agreement: Harare Municipal (General Conditions of Service) (S.I. 135/2012) when effecting transfers.  Section 28 (7) of S.I. 135/2012 provides:

“Before any transfer is effected an employee shall be afforded an opportunity to make representations” (my emphasis)

Section 28 (7) (above), makes it peremptory for employees to be consulted or be allowed to make representations before they are transferred.  The Learned Arbitrator found that the respondents were called to collect transfer letters and that a decision to transfer them had already been made without their input.  When the appellants asserted their rights, they were charged with wilful disobedience of a lawful order.  Since the appellants were not afforded an opportunity to make representations, the Learned Arbitrator found that the order to transfer the respondents was done prematurely.

The parties were given instructions on one day and they were expected to move almost immediately.  While the instant case is concerned with transfers and not disciplinary proceedings, the Legislature saw it fit to afford employees a chance to be heard.  An employer can therefore not avoid compliance with provisions of the governing statute.  This is in keeping the audi alteram partem rule. (See Jerry Musarira v Anglo American Corporation SC 53/05). As in disciplinary proceedings, the employees herein were entitled to make representations before being transferred (See Jerry Musarira v Ango American Corporation above). Their failure to obey was interpreted by their employer as wilful disobedience to a lawful order. Had regard been had to the applicable provisions, their conduct would not have been so interpreted.

Failure to obey a lawful order must not be made out of mistake.  It must be deliberate.  Here the respondents were enforcing a piece of legislation which binds both parties. What this means is that the order which they were reacting to was unlawful.  This is so because it was contrary to the provisions of the governing statute.  That can surely not be held to be deliberate disobedience.  Mr Kwaramba who appeared on behalf of the appellant strenuously argued that the respondents were given a chance to make representations.  However it was only after the respondents had brought the provisions of Section 28 (7) to their superior’s attention that they were told that whatever reservations they had, would not be affected by the transfers since they would not be deployed outside Harare. That sounds as if the appellant assumed that there was no need for the respondents to be heard at all before writing the letters of transfer and enforcing the said transfers.  This amounts to a deliberate violation of the provisions referred to above by the employer.  The employer simply made an order which it expected to be obeyed without considering the importance of the statutory provisions.  The fact that the parties may have been assured that they could, at a future date, make representations does not amount to compliance with the statutory provisions.   So it cannot be said that the respondents made representations.  Reference was made to the record of proceedings in the initial hearing which would show that some form of consultations were made after the letters had been written.   However, the position is that a decision to transfer the respondents was made and effected before they were allowed to make any representations.  When they sought to make representations, they were disciplined and dismissed.  So the question of there being a record of proceedings does not cure a violation which occurred before the matter was heard.

It is clear that the respondents were asserting their rights and were not deliberately refusing to carry out an order.  Even if they were mistaken in thinking that they had a right to enforce provisions of Section 28 (7) that cannot be held to be a deliberate ploy to refuse a lawful order.  The respondents believed that a decision affecting them could not be done before they were heard.  This would make the wilful disobedience excusable.  But in fact they were not mistaken, they were simply asserting their rights. In terms of the governing statute their input was supposed to precede the order for their transfers.  The appellant was obliged to comply with those provisions (See Rwodzi v Municipality of Chegutu HH 86/03). Their refusal therefore cannot be viewed as wilful.  In Matereke v C.T. Bowing & Associates (Pvt) Ltd 1987 (1) ZLR 206 (S) it was held that:

“Disobedience must be intentional and not the result of mistake or inadvertence.  It must be disobedience in a serious degree, and not trivial – not simply an unconsidered reaction in a moment of excitement …  Such disobedience as is likely to undermine the relationship between the employer and employee.”

In the present case the “disobedience” was an effort to enforce Legislation applicable to both parties.  Clearly it cannot be viewed as “wilful” and serious and undermining the employment relationship.  If an employer unilaterally makes a decision affecting an employee where the employee is expected to make an input, then it is the employer who is at fault.  The order under the circumstances cannot be considered as lawful.  The order was not in accordance with the provisions of the applicable law.

It is clear that when the order to transfer the respondents was made, the employer failed to fully comply with the provisions of the relevant statute.  The arbitrator’s findings were that failure to comply with the provisions of the applicable statute, was a total disregard of the provisions of the Collective Bargaining Agreement.  I agree and I have tried to explain this above.  This means that there is no merit in ground (a).  Grounds (b) and (c) (j) challenge the procedure adopted by the Arbitrator when he made his order.  This cannot be a ground of appeal but review.  That ground is not properly before me.

Having stated the above, an appeal court can only interfere with a decision of lower court where that court has not properly exercised its discretion.  In Bambe v Bambe SC 91/02 the Supreme Court stated that:

“unless a decision is clearly wrong it cannot be interfered with.”

I cannot say that the Arbitrator’s decision is clearly wrong.  There is therefore no reason for me to interfere with it.

In view of the foregoing I find that there is no merit in the appeal.  The appeal fails.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

Mbidzo Muchadehama & Makoni, Appellant’s legal practitioners

Hamukwadi, Nyandoro & Ngwerume, Respondent’s legal practitioners