REPORTABLE ZLR (24)

Judgment No. SC 30/08

Civil Appeal No. 73/07

DANAI GURUVA v TRAFFIC SAFETY COUNCIL OF ZIMBABWE

SUPREME COURT OF ZIMBABWE

SANDURA JA, CHEDA JA & GWAUNZA JA

HARARE, JANUARY 21, 2008 & JANUARY 27, 2009

The appellant in person

J Muchada, for the respondent

CHEDA JA: The appellant is employed by the Traffic Safety Council of Zimbabwe as a Regional Manager. He was based at their Gweru Office from where he was transferred to the Masvingo Office.

The dispute which led to this case arose from his lateral transfer from Gweru to Masvingo. On 14 November 2003 the respondent’s Deputy Director, Finance and Administration, wrote a memorandum to the appellant advising him that he is transferred to Masvingo on a lateral transfer with effect from 1 January 2004 as result of a meeting which had been held by the Directorate of the respondent on 10 November 2003.

Reasons for the transfer were given in the memorandum as follows:

1. Training of managers through job rotation and enrichment.

2. That the Masvingo Office was performing better than the Gweru Office though the Masvingo Office was apparently smaller.

3. That the transfer had been necessitated by a thorough consideration of the likely impact on production and consequent benefits thereto.

The appellant wrote back to the Director of Finance making his submissions against the transfer. The reasons that he gave were personal. He requested that the transfer to Masvingo be put on hold but did not say for how long.

It is common cause that after the appellant had made his submissions a meeting of the Directorate was held on Wednesday 19 November 2003 to deliberate on the representations made by the appellant.

On 20 November 2003 the Deputy Director wrote to the appellant advising, among other things as follows:

“The directorate held a meeting at 11.00 hrs to deliberate on the issues on Wednesday 19 November 2003. We sympathise with the personal circumstances in which you are. Also we note that you are doing some publications concerning Traffic Safety work which could be made easier in Gweru. Nevertheless, the directorate realizes that each of us, forty seven (47) employees in all have different personal circumstances, some of them could be much more taxing than yours. The directorate considers each case on its own merits but guided by the fact that the individual needs and goals are subordinate to those of Traffic safety Council.”

The letter ended with the following statement:

“Having made a thorough consideration of your submissions, the directorate resolves that the earlier decision to transfer you to Masvingo with effect from 1 January 2004 still stands.”

On 27 November 2003 the appellant wrote a long letter to the respondent appealing against the decision to transfer him to Masvingo and asking that it be reversed. He did not succeed. He took the matter to the Labour Relations Office alleging victimization and unfair transfer.

The Labour Officer referred the matter to Arbitration. The arbitrator held that the respondent had not observed the dictates of the audi alteram partem rule and declared that the transfer was unlawful and should be reversed.

The Traffic Safety Council of Zimbabwe appealed against that decision at the Labour Court. The Labour Court upheld the appeal and confirmed the decision to transfer the appellant.

The appellant now appeals against the decision of the Labour Court. The appellant’s grounds of appeal are as follows:

1. The Labour Court made a total error of law in its interpretation of clause 8.5 of the Traffic Safety Council of Zimbabwe’s conditions of service as regards the transfer of employees.

2. The Labour Court incorrectly interpreted the audi alteram partem principle and therefore wrongly applied the doctrine on finding that it was observed by the respondent.

3. The Labour Court erred in law on finding that my legitimate expectation to be heard was fulfilled by the respondent.

The appellant does not dispute the contents of the letter addressed to him on 20 November 2003. His contention is that the original decision of 10 November 2003 should never have been made without him being granted a hearing. He referred this Court to the respondent’s conditions of service, and to the case of Taylor v Minister of Higher Education & Anor 1996(2) ZLR 772(s).

It is conceded and rightly so, by the respondent, that the appellant should have been granted a hearing before the decision to transfer him was made. Indeed, that is the principle laid down in Taylor’s case.

The appellant’s attitude in his submissions is that once that decision was unlawful it should be set aside. If the matter had ended there with that decision made in that manner I would have no hesitation in holding that it was improper, to handle the transfer in that manner although declaring it unlawful would remain an arguable issue depending on the circumstances of the case.

However, that is not the position in this case. To begin with, the appellant made submissions, detailed submissions, in writing, against the transfer. As a result, the respondent’s directorate held a meeting to deliberate on his submissions. It is not as if, the respondent refused to hear him.

Can it be said that once the appellant made representations the employer should necessarily have made a different decision? I do not believe that to be the position and the appellant cannot say that is the position either.

Secondly it has not been shown that the respondent made its original decision on the basis of grounds which have since been proved to be incorrect. It was still open to the respondent to arrive at the same decision even after hearing the appellant.

It must be accepted that the right to transfer an employee from one place to another is the prerogative of the employer. It is the employer who knows better where 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 in the circumstances, 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 reasons for transferring the appellant were given in its very first correspondence. It is not as if the reasons were made to counter the appellant’s objections. Even if the reasons had not been given in the first correspondence to him, the reasons would still be valid as long as they are genuine.

The employee who undertakes 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 where ever such services are required unless the employment contract stipulates that he is to be employed and remain at a specific place only. See Ngema Chule v Minister of Justice:Kwazulu & Anor 1992(4) SA 349.

While the respondent may have erred in not giving the appellant a hearing in the very first place, I am satisfied that since the respondent did not compel the appellant to go on transfer before he was heard, but deliberated on the issue before re-affirming its previous decision the requirement of the audi alteram partem rule was complied with.

There is nothing in the Labour Court’s judgment which points at a wrong interpretation of clause 8:5 to 8:5.3. of the appellant’s conditions of service. That clause deals with transfer costs and it is not the appellant’s case that he was denied such costs. That ground of appeal is baseless.

Taylor’s case which appellant relied on in most of his submissions, while emphasizing the need for an officer to be heard before transfer, cannot be said to set the precedent that a decision made after the officer has complained must necessarily be different. Further to that, in Taylor’s case there was an allegation of victimization, and there was no indication that after he had complained there was any further consideration of the matter. He had also asked for reasons for the transfer and they were never supplied.

The court a quo in Taylor’s case had interpreted the phrase “without his consent” in the Regulations as meaning that the employee had no right to be heard,

In the case before this Court it is my view that although the employee has a right to be heard, and to make representation against the transfer, the final decision still lies with the employer.

Once it is shown that the employer gave consideration to the need to transfer an employee and gave that employee a hearing, the employer’s decision cannot be held to be improper.

In Taylor’s case the appeal court went further and pointed out that in some cases an employer can still transfer an employee without giving him or her a hearing, depending on the special circumstances of the case and that it would be unworkable if every employee were to be consulted before a transfer or decision is made.

In conclusion, I am satisfied that even if the appellant in this case had not been given a hearing when the decision to transfer him was first made, once he complained and the directorate met and deliberated on the matter, his legitimate expectation to be heard was met, the audi alteram partem rule was complied with and the decision to transfer him, cannot be set aside.

In the result, the appeal is dismissed with costs.

SANDURA JA: I agree

GWAUNZA JA: I agree

Dube, Manikai & Hwacha, respondent’s legal practitioners