Clopas Rukuni v Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/64/16
HELD AT HARARE 10TH NOVEMBER 2015
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/64/16

HELD AT HARARE 10TH NOVEMBER 2015			CASE NO LC/H/REV/76/13

& 19 FEBRUARY 2016

In the matter between:

CLOPAS RUKUNI					Appellant

And

PUBLIC SERVICE COMMISSION			Respondent

Before The Honourable L Hove, Judge

For Appellant			G Sithole (Legal Practitioner)

For Respondent		L Mutambisi (Attorney General’s Office)

E Mapara

HOVE, J:

This is an appeal against the respondent’s decision to down grade the appellant.  The appellant alleges that the decision to demote him is grossly unreasonable, so grossly irrational that the matter becomes reviewable by this court.

The background facts of the matter are that the appellant was employed by the respondent as a Research Technician in 1982.  Applicant’s qualifications are that he holds a National Diploma in Agriculture from Chibero College, he also holds a Diploma in Agricultural machinery from Germany and a post Graduate Diploma in Agricultural Engineering from Granfield Institute of technology.

He rose through the ranks to the position of Acting head station which position he assumed from 2009 to 31 July 2013, the appellant was downgraded from the position which he then held of principle engineer E2 to Chief Research Technical E1 grade.

The circumstances of his downgrading can best be understood by looking at his employment history.

When he was employed in 2009, he was employed as a research technician.  He was not the holder of a degree so he was not in the engineering grades.  He submitted a project to the Zimbabwe Institute of Engineers and went through the qualifying process.  After this process in 2006, he was admitted as an associate member of the Zimbabwe Institute of Engineers.  He also was registered with the Engineering Council of Zimbabwe as a professional engineer.

He obtained a post graduate diploma, the institute which he obtained the diploma from, indicated that the diploma was equivalent to a degree in engineering.  He was then able to register with the Zimbabwe Institute of Engineers as a professional engineer.  His employer, the respondent, also regarded him into the engineering grades as a senior engineer.  He rose to the position of principal engineer.

In January 2012, the post of head of institute had become vacant and the appellant applied for that position of head of institute.  He pointed out that he is registered with the Zimbabwe Institute of Engineers and is recognised as a professional engineer in terms of the Engineering Council Act [Chapter 27:22].

Following this application, the respondent downgraded him arguing that he was not an engineer as he did not hold a degree as an engineer.  He was downgraded out of the engineering grades to a chief research technician grade E1.  This was with effect from 1 August 2013.

The appellant was dissatisfied and applied to this court to have the respondent’s decision reviewed.

The respondent’s argument is that as an employer, it is constitutionally mandated to appoint people to posts and grades in the public service.  It fixes the grades and the requisite qualifications for such grades.

In this case, the respondents set the grade for engineers and the other non-engineering grades.  For one to be considered an engineer the basic qualification is an engineering degree.  The applicant is said not to have this degree.  The respondent stated that he was erroneously regarded to a post he did not have the required qualification for.  The applicant was therefore not demoted but correctly placed to a post which suits his qualifications.  The fact that applicant was recognised by different institutions does not confer upon him a degree or qualification that the respondent has considered to be basic minimum qualification for that grade.

The appellant on the other hand does not argue with the fact that he is not a holder of a basic engineering degree but insists that he has the requirements for an engineering grade as stipulated by the respondent itself.  The respondent has set the qualifications as a degree holder or equivalent.

In the appointment performance advancement, regarding, transfer, promotion and training procedures for engineers Reference B/C/33/2006/38 dated 27 September 2006, the entry qualifications into the engineering grades are stated as follows;

“The entry qualifications shall be an engineering degree or Zimbabwe Institute of Engineers or equivalent.”

The appellant argues that he is the holder of a qualification that is equivalent to an engineering degree and therefore qualifies to be graded as an engineer.

He submitted that the respondent itself had recognised that he met the qualification criteria when in December of 2006 it regarded him from a research technician grade to senior engineer after he showed them a letter from the college he obtained his diploma from which stated that the qualification was equivalent to a degree in engineering.  Page 45 of the record shows that  the respondent himself had regraded the appellant after satisfying itself that he met the qualification criteria set and that he had the requisite qualifications equivalent to a degree.

The evidence placed before the court showed that the college stated that its qualifications were equivalent to an engineering degree.  The respondent has not denied that the entry point is not only the degree in engineering but also equivalent qualifications.  The evidence showed that the respondent had regraded the appellant into the engineering grades on consideration of his equivalent qualifications and the fact that he was recognised as a professional engineer.

It is my view that the evidence shows that the appellant qualifies for the engineering grade as he is the holder of equivalent qualifications.  This is why the respondent in the first place appointed him into the engineering grade.

The respondent sought to argue that there is a process which is undertaken, to show what is and what is not equivalent to a degree.  That process was not done.  It was incumbent upon the employer to show that what it had previously accepted as an equivalent was not an equivalent, before reversing a decision it made in 2006 and which decision conferred upon the appellant rights he had enjoyed ever since, i.e. for about 6 years.  The appellant had not acted fraudulently in anyway.  He showed the respondent the qualifications and the claim from his college that the qualifications were equivalent to an engineering degree and the respondent accepted this out of its own volition.

There was nothing placed before the court to show or prove that the appellant was not the holder of equivalent qualifications.

In the circumstances of this case, the onus was surely on the respondent to show that the appellant had

No engineering degree, or

No  qualifications equivalent to a degree.

It is an accepted principle of law that he  who alleges must prove.  The respondent’s

decision  was based on the allegation that he did not have the basic qualifications.  It had the onus to prove that applicant did not have those qualifications.  It was not for the applicant to prove that his qualifications were equivalent to an engineering degree once he had produced a letter from his college stating that his qualification was equivalent to an engineering degree.

See in this regard case of Astra Industries Ltd v Peter Chamburuka SC 27/12 where OMERJEE AJA remarked at pages 2 to 3 as follows;

“The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation.  This position has been affirmed by this court in Book v Davidson 1998 (1) ZLR 365 (S) at 384 B – F, DUMBUCHENA CJ noted with approval the words of POTGIETER AJA in Mobil Southern Africa (Pvt) Ltd v Machin 1`965 (2) SA 706 AD at 711 E – G.

‘The general principle governing the determination of the incidence of the onus is the one stated in the Corpus juris simper necessitas probunlii ncum bitilli

In other words he who seeks a remedy must prove the grounds thereof.’ ”

Further, the respondent having conferred the status of an engineer by appointing him to an engineering grade, was estopped from withdrawing the resultant rights and privileges in the manner that it did.

The respondents concentrated on the fact that the appellant had no engineering  degree and did not address the issue that their own criteria allows those with qualifications equivalent to a degree to qualify.  They did nothing to show that what appellant had was not equivalent to a degree.  They just withdrew the status.

Also the circumstances of this case show that the employer waived its rights to insist on an engineering degree when it appointed the appellant to the engineering grade in 2006.

The principle of waiver is simply thus that if one party by his conduct leads another to believe that the strict rights arising under the contract will not be insisted on, intending that the other should not act on that belief, and he does act on it then the first party will not afterwards be allowed to insist on the strict legal rights when it would be inequitable for him to do so.

See in this regard the cases of

Usakos Recreation Club  v Slaney 1950 (3) SA 121

Sterling Products Int Ltd v Jean Zule SC 182/88

Barlclays Bank of Zimbabwe v Binga Products P/L 1984 92) ZLR 76

So, in the event that the respondent intended for the entry point to be strictly an

engineering degree, it led the appellant to believe that other equivalent  qualifications could suffice and further confirmed that belief in the applicant’s mind when in 2006 it upgraded him on the basis of his equivalent qualifications.  The appellant acted on that belief and it is inequitable to try and reverse decisions taken about 9 years ago.  If the appellant meant to insist on a degree, they waived their right to so insist in casu and are estopped from enforcing that intended position against the appellant in the circumstances of this case.

Having found thus, the appeal must succeed, I make the following order;

The appeal succeeds, the decision to down grade the appellant is set aside

The appellant is to be reinstated into his former grade with no loss of salary or benefits.

Each party will bear its own costs.

Mawire & Associates, applicant’s legal practitioners

Attorney General’s Office, respondent’s legal practitioners