John Madziya v Nyatsime College & Anor

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/228/24
HARARE 18 MARCH ,2024
CASE NO. LC/H/385/21-1
AND 20 MAY, 2024
In the matter between: -
Jonh Madziya
Applicant
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HARARE 18 MARCH, 2024
AND 20 MAY, 2024

In the matter between: -

John Madziya
Applicant
Versus
Nyatsime College
1st Respondent
Maone
2nd Respondent
Before the Honourable L. Hove, Judge:
For Applicant : In default
For 1st Respondent : Mr. W. Magaya
For 2nd Respondent : Mr. B. Magogo

HOVE J:

The applicant issued a draft ruling in a matter involving the first respondent and the second respondent. He now seeks that his application be confirmed as a ruling of this court.

Background facts

The first respondent sought to recruit a principal at its college. The first respondent flighted an advertisement to that effect. The second respondent was interested in the post and he was one of those who responded to the advertisement. The second respondent was shortlisted and he went through the selection process. He was eventually offered the position and he accepted to work as a principal with the respondent’s college. The first respondent wrote to the second respondent in the following terms.

“RE: The transfer from Gutu district to Nyatsime College; Mr Veremu Maone :EC no
0710507: Head Masvingo Province

Following the interview held on 28th of October 2011, at Nyatsime College, the board, with the concurrence of the provincial education director is pleased to inform you that you were found suitable to take up the post of the principal at Nyatsime College with effect from the date of assumption of duty.

In order to facilitate your release, you are advised to make necessary transfer arrangements with the provincial education director Masvingo province …”


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The $2^{nd}$ respondent then took up the position on 31 August 2019. The relationship subsisted until the $1^{st}$ respondent wrote to the $2^{nd}$ respondent advising him, that he was being surrendered back to the Ministry of Primary and Secondary Education.

A dispute then arose concerning the manner the first respondent surrendered back the $2^{nd}$ respondent to the Ministry of Primary and Secondary Education. The $2^{nd}$ respondent was aggrieved and filed a claim with the applicant. He argued that the surrendering was both procedurally and substantively unfair. This was because there existed an employer/employee relationship which could not be terminated in the manner the $1^{st}$ responded had terminated their relationship.

The $1^{st}$ respondent on the other hand argued that there was never an employer/employee relationship between itself and the $2^{nd}$ respondent. It was argued that the $2^{nd}$ respondent was employed by the Ministry of Primary and Secondary Education and as such he had never been an employee of the 1st respondent. He had merely been transferred to the $1^{st}$ respondent but was an employee of the Ministry of Primary and Secondary Education.

The issue for determination

The issue that comes up for determination is whether or not there was an employer/employee relationship between the respondents.

The $2^{nd}$ respondent’s argument

$2^{nd}$ respondent argues that he was employed by the $1^{st}$ respond. This was so because he went through all the recruitment and selection process from the moment the advertisement was flighted through to his application and the subsequent interviews and ultimately to the offer of a job.

The $1^{st}$ respondent’s argument

The $1^{st}$ respondent argues that the $2^{nd}$ respondent was an employee of the Ministry of Primary and Secondary Education. He was merely transferred to work at Nyatsime. The $1^{st}$ respondent argued that it never employed the $2^{nd}$ respondent who was employed by the Ministry of Primary and Secondary Education. That was why the Ministry continued to pay the $2^{nd}$ respondent’s salary. The $1^{st}$ respondent only paid a retention allowance.

Analysis

It is evident to me that right from the beginning of their relationship the respondent’s talked about a transfer and never an employment. After the interviews, the $2^{nd}$ respondent was eventually offered the post of principal. It was necessary for transfer arrangements to be made with the Ministry’s provisional education director. There was never any talk of resignation from the Ministry. It was a transfer. The Ministry was to facilitate his release. When he accepted the position the second respondent made the necessary arrangement with his employer to enable him to take up the position. The ministry was involved in facilitating the transfer. The ministry continued to pay his salary.

The relationship between the parties was not just between the $1^{st}$ and $2^{nd}$ respondents. The ministry was part of the arrangement. The record shows that the $1^{st}$ respondent conceded and expressed itself in correspondence within to the appellant. The letter is titled;

“Transfer from Gutu District Office to Nyatsime College.”
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 The correspondence also acknowledged the ministries involvement in the need for the Ministry to facilitate the 2nd respondent’s release and the fact that there were necessary transfer arrangements with the provincial education Director Masvingo province.

The ministry was also aware that there was to be a lateral translate and that the 2nd respondent actually applied for the lateral transfer which was granted.

This arrangement is permissible in terms of section 14 of the Public Service Regulations SI 1/2000. There was thus a secondment. The Public Service remained the employer and continued to pay its employee’s salary. The 1st respondent did not take up the responsibility of paying the 2nd respondent’s salary but simply paid a retention allowance which was not taxed as would have been the case if the payment was a salary.

The Labour Act [chapter 28:01] (the Act) provides that an employee is a person who provides work for another for a remuneration.

In casu the 2nd respondent never received any salary from the 1st respondent but his remuneration continued to come from his employer, the Public Service Commission under the Ministry of Primary and Secondary Education.

There was therefore no employer/employee relationship between the respondents. The 2nd respondent was merely transferred or seconded by his employer to the 1st respondent.

The claims made in relation to an alleged unlawful termination cannot succeed since there was no employer/employee relationship. The draft ruling which determined that there was an employer/employee relationship was therefore a misdirection in that it completely ignored the involvement of the Ministry and the fact that the engagement was a transfer. In the result the following order is made,

**Order**

1. The application for the confirmation of the draft ruling be and is hereby dismissed.
2. Each party bears its own costs.


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