Webster Nyakabwi v Agricultural Bank of Zimbabwe t/a Agribank

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO, LC-H-850-14
HARARE ON 28th NOVEMBER, 2014
CASE NO. LC/H/90/14
AND 9 JANUARY, 2015
JUDGMENT NO. LC/H/850/14
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IN THE LABOUR COURT OF ZIMBABWE	    	       JUDGEMENT NO, LC-H-850-14

HARARE ON 28th NOVEMBER, 2014		                      CASE NO. LC/H/90/14

AND 9th JANUARY, 2015

In the matter between

WEBSTER NYAKABWI	       			–	Appellant

And

AGRICULTURAL BANK OF ZIMBABWE

t/a AGRIBANK					–	Respondent

Before The Honourable B.S. Chidziva, J.

For Appellant   :	Ms Z. Chirombe (Trade Unionist)

For Respondent :	Mr J. Dondo (Legal Practitioner)

CHIDZIVA, J.

This is an Appeal against the decision of the NEC Appeals Board dated 4th October 2013. The Board in brief made the following decision;

“Having said this, the NEC Chairman noted that though Respondent was wrong in giving short notice of eight (8) days for the Appellant to leave, there was no material prejudice that the Appellant had suffered and ultimately it was the bank’s prerogative to transfer employees -----. The decision is that the Appellant’s grievances is dismissed.”

The brief history of this matter is that Appellant who was employed by the Respondent as a Central Cash Clerk was transferred from Harare to Murambinda branch. He was to assume a new role with effect from 1st August 2013. He was given 8 days within which to relocate and he raised 4 complaints to the Grievance Hearing Committee. The Committee then dismissed the complaint on 7th August 2014. On the 29th of August the Grievance and Disciplinary Committee dismissed the Appeal. The National Hearing Committee also dismissed the Appeal on 4th October 2013 hence the present appeal.

The grounds of appeal are as follows:

The NEC Appeals Board failed to appreciate and correctly assess the facts of the matter and in the end arrived at a wrong decision based on wrong facts.

The NEC Appeals Board erred in using a wrong test in the determining of this matter. In dismissing the matter on the basis that there was no direct nexus between the victimization allegation and the transfer.

The NEC Appeals Board ignored the fact that all the employees who had raised successful complaints against the Respondent had been transferred in similar fashion at the same time together with their worker representative.

Had the NEC Appeals Board correctly evaluated these facts, it would have correctly conducted that the transfers were a form of reprisals for raising the genuine grievance through legal processes. Such actions by the Respondent were unlawful and should have been declared as such.”

It is on these grounds that the Appellant prayed that the decision of the NEC Appeals Board be set aside and that the Respondent should be ordered to reverse the transfers.

The Respondent in response prayed for the dismissal of the Appeal on the following grounds:

That the NEC Appeals Board competently and correctly assessed all the relevant facts.

The claim of victimization remains unsubstantiated.

Transfers were made in relation to the constant environmental changes and Appellant was not the only person who was transferred.

It is common cause that prior to the transfer the Appellant had raised a grievance challenges that B1 grades in the company. In February 2013 the Appellant’s grade was changed from grade B1 to B3. Appellant was then transferred to the Murambinda Branch on the 19th of July 2013.

What is to be decided is whether:

Respondent was victimizing the Appellant by transferring her to Murambinda

In the case of Guruva v Traffic Safety Council of Zimbabwe 2009 (1) ZLR the Supreme Court held that;

“An employee who undertakers to work for an employer whose business is carried out at different places takes the risk of being sent to perform services for the employer wherever such services are required, unless the employment contract stipulates that he is to be employed and remain at a specific place only. The right to transfer an employer from one place to another is the prerogative of the employer. It is the employer who knows better whether the services of an employee are required. The employer’s discretion in determining which employee should be transferred and to which point of the employer’s operations is not to be readily interfered with except for good cause shown. Good cause while not easy to define, would include such matters as unfounded allegations, victimization of the employee and any action taken to disadvantage the employee.”

The Appellant did not dispute that his contract of employment provided that he was subject to transfer to any of the Respondent’s work stations. He also failed to disprove that the Respondent had the prerogative to transfer him from one station to another.

In the case of Taylor v Minister of Higher Education and Anor 1996 (2) ZLR 772 it was also held that;

An employee should be heard before transfer

The employee does not have to consent to the transfer for it to be effective.

In this case the Appellant was consulted before transfer. He indicated that he had health issues which required physiotherapy every week and that a transfer outside Harare would adversely affect his health. Appellant however failed to submit any proof to corroborate his submissions. A vacancy suited to him had been identified at Murambinda hence the transfer.

This Court agrees with the NEC Appeals Board that;

it was the Respondent’s prerogative to transfer the Appellant, and

there was no material prejudice that the Appellant suffered.

In view of the foregoing therefore this Court finds that there was no material prejudice that Appellant suffered due to the transfer. Furthermore it is the Respondent’s prerogative to transfer employees.

Accordingly, IT IS HEREBY ORDERED THAT;

The Appeal be and is hereby dismissed for lack of merit

The Appellant is to bear costs.

J. Dondo and Partners – Respondent’s legal practitioners