Musafare Ruswa & 8 Others v Interfresh Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/687/13
HELD AT HARARE 26TH NOVEMBER 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/687/13

HELD AT HARARE 26TH NOVEMBER 2013	      CASE NO LC/H/209/12

AND 6TH DECEMBER 2013

MUSAFARE RUSWA					Appellants

& 8 OTHERS

INTERFRESH LIMITED					Respondent

Before The Honourable G Musariri, Judge

For Appellants			Mr B Katsuro, Attorney

For Respondent			Ms D Kandwe, Attorney

MUSARIRI, G:

Appellants appealed against their dismissal from employment by Respondent.  Their grounds of appeal were two-fold namely,

“1.  The Appeals Committee grossly erred in failing to appreciate that

the order/instruction by the Respondent, which the Appellants were dismissed for disobeying was an unlawful unilateral variation of the contract of employment by the Respondent through an illegal transfer.

2.  The Appeals Committee grossly erred in failing to consider that the

purported transfer of the Appellants by Respondent was an act of victimisation of the former by the latter, for bringing an action of unfair labour practice prompted by the unilateral imposition of compulsory leave and short time work.”

Respondent opposed the appeal.  The key portion of its Response read thus,

“2.	Respondent advised fifteen of its employees that it was transferring them from Wholesale Fruiterers to Marlon Trading with effect from 31st January 2013 through an official letter which Appellants received but refused to sign, acknowledging receipt.  This was done in terms of section 3.18.1 of Respondent’s Human Resources Manual of 2005.  The transfer was meant to avoid job losses since Wholesale Fruiterers could no longer sustain its operational costs including wages.  See copies of letters of transfer attached hereto and marked A1 to A9.  According to the letters, the transfer was not going to affect the Appellants’ salaries or wages, grade and their industry remuneration trend.  Further the transfer did not entail change of location for the Appellants’ as they were to continue working at the same place in Granite side.  Five of the employees complied with the order and the Appellants refused to comply.

3.	Appellants were then charged with contravening section 3.1 of the Respondent’s code of conduct in that they disobeyed a lawful order...”

Appellants relied on the case of ZCTU v Makonese 2005 (1) ZLR 430 (S)

The case set out the requirements for a lawful order as

It is given by the employer;

It is capable of being carried out;

It is for the advancement of the employer’s business;

It is closely connected to the duties of the employee; and

It is not a wrongful act.

Appellants specifically relied on the requirement (b) and (e).

As for the requirement (b) I have no hesitation in ruling against them.  Appellants were given 2 days’ notice of a change of work-station from point A to point B in Graniteside, Harare.  This was a shift within the same neighbourhood so to speak.  The instruction was certainly capable of being carried out.

Appellants argued that the transfer was wrongful and unlawful in that they were not consulted beforehand and that it contravened Respondent’s transfer policy.  The transfer policy required that a minimum of 2 days’ notice be given.  That was complied with.  It further required that “... when such transfer becomes necessary, cognisance should be taken of the employee’s personal circumstances before such a decision is finalised.”  Respondent argued that there was not going to be any material change to Appellants’ circumstances.  No new  accommodation or relocation expanses arose because they were to transfer to a workstation within the same neighbourhood.  Appellants maintained that they should have been consulted beforehand. That would have enable them to air their concerns.  Respondent did not specifically invite submissions from Appellants.  However the 2 days’ notice certainly gave Appellants the opportunity to raise their concerns.

Transfer of employees is a prerogative of the employer. Appellants conceded as much. However in carrying out transfer, the employer is required to take into account the employee’s personal circumstances.  He is not required to secure the employee’s consent. Different considerations apply in different cases. In this matter the transfer entailed no material change in Appellants’

personal circumstances.  Appellants had an opportunity to air their concerns before the transfers took effect.  Apparently they did not submit any concerns.  This only served to show that there were none such concerns.  The claim of victimisation was not proved.  In any event some employees complied and it is those who did not comply who were charged with misconduct.  That seems to dispel the allegation of victimisation.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

J U D G E