Allied Timbers (Pvt) Ltd v R. Chikwena + 10 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MC/14/2014
HARARE, 29 JANUARY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE     JUDGMENT NO. LC/MC/14/2014

HARARE, 29 JANUARY 2014 &            		     CASE NO. LC/MC/11/13

14 MARCH 2014

In the matter between:-

ALLIED TIMBERS (PVT) LTD					Appellant

And

R. CHIKWENA + 10 OTHERS					Respondents

Before Honourable E Muchawa, Judge

For Appellant		-	Mr. T. Mukwindidza (Legal Practitioner)

For Respondents		-	Mr. I. Makosho ri (Trade Unionist)

MUCHAWA J:

This is an appeal against an arbitral award whose operative part reads.

“On the basis of the foregoing findings I award that the transfer was unfair (unfavourable conditions) and the respondent must reinstate the applicants and follow what is required at law.”

Respondents are former employees of the Applicant.  As a result of low productivity, appellant had initially laterally transferred the respondents to Mtao – Lumber.  This decision was reversed following a complaint by respondents through the 	NEC (Lumber) regarding the places of transfer.  Further lateral transfers were then made to urban centres and respondents were advised in writing of the details including transport arrangements.  Respondents refused to comply with the latter transfers and were charged with failure to comply with the transfer instructions.  Despite receiving notification of the disciplinary hearings, the respondents did not attend.  The hearings proceeded in their absence and they were dismissed.  A complaint was registered by the respondents at the Labour Office.

There was no settlement at conciliation and a referral to arbitration was made.  It is the resultant arbitral award which is the subject of this appeal.

The grounds of appeal are summarized below:

The arbitrator grossly erred at law in failing to recognize that the Appellant had acted in terms of a registered Code of Conduct.

The arbitrator grossly erred in making an award on an issue which did not constitute part of his terms of reference.

The arbitrator failed to appreciate that Appellant observed the audi alteram partem rule.

The arbitrator grossly misdirected himself by failing to consider the evidence placed before him.

The arbitrator grossly misdirected himself by accepting the Respondents’ unsubstantiated evidence.

The arbitrator grossly erred in ordering the reversal of the transfers in spite of the low productivity at the relevant station.

The arbitrator failed to appreciate that the Respondents were not entitled to a transfer package.

The arbitrator failed to note that the transfer was maintaining the same conditions of service.

The respondents did not file any response to the appeal despite the registrar’s notices reminding them to file a response.  These were given on the 27th February 2013 and the 14th June 2013.  Reminders were also given on the 12th June with an application for interim relief and 15th June before an arbitrator for quantification and on the 25th June 2013 when an urgent chamber application was filed.  The response finally came in on the 27th January 2014, almost a year later and even then did not deal with any of the grounds of appeal raised.  It just addressed a preliminary point raised.  I proceed to deal with the appeal as unopposed in considering the merits as I already disposed of the preliminary point in a ruling.

Failure to Acknowledge that Appellant Acted in Terms of a Registered Code of Conduct.

In submissions before me, appellant clarified that the relevant document in respect to transfers is The Allied Timbers Zimbabwe Conditions of Service Manual.  In section 5 thereof it states

“Allied Timbers Zimbabwe shall have the discretion to transfer any employee anywhere in Zimbabwe on temporary or permanent basis.”

In his analysis of evidence, the arbitrator does recognize appellant’s right to transfer its employees but does not make reference to the section above even though he was referred to it.  In this he erred as he failed to note that the transfers were done in terms of appellant’s policy and this led to further mistaken conclusions.

Did the arbitrator go beyond his terms of reference?

The arbitrator spells his terms of reference as follows:

“I was asked by the conciliator who appointed me to only and I quote, “Determine whether there was unfair transfer (unfavourable conditions) and the remedy thereof.”

In the award the arbitrator does make a finding that the transfer was unfair.  This is within the prescribed terms of reference.  The remedy offered is reinstatement.  In this the arbitrator is delving into the issue of unfair dismissal and I find he misdirected himself.

The facts of the matter were that the respondents had subsequently been dismissed for disobeying a lawful order to report to their new workstations.  That was a separate matter which had overtaken the issue placed for arbitration before him.  The arbitrator was not tasked with determining whether or not the Respondents had been correctly dismissed for obeying a lawful order.  By ordering reinstatement, he exceeded his mandate.  There is no need for me to consider the circumstances of the dismissals.

Had Appellant observed the audi alteram partem rule?

The arbitrator makes the finding that the respondents were not consulted.  Though this is a question of fact which I should not concern myself with, on appeal, I note that respondents were engaged in consultations through Works Council Meetings on the possibility of transfers and when they registered a complaint on the initial transfer through their Union representative.

There is a policy dealing with transfers already which has been cited above.  It was therefore not necessary for the consultations to deal with the transfer conditions as they are already provided for.

The acceptance of unsubstantiated evidence by the arbitrator and failure to consider the evidence before him.

The arbitrator accepted the evidence that the transferred employees were accommodated in a hall.  On the contrary it was alleged by appellant that the respondents never took up the transfers nor reported for work at the new stations.  I find therefore that the arbitrator erred in failing to analyse and consider the evidence before him.

Did the arbitral err in reversing the transfers?

I was referred to the case of Danai Guruva v Traffic Safety Council of Zimbabwe 5 August 2008.  The Supreme Court held as follows:

“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 the 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.”

In casu it was common cause that the transfers were necessitated by low productivity at the relevant station.

In ordering reversal without establishing good cause for such, the arbitrator erred.

Were the respondents entitled to a transfer package?

I have already shown that the arbitrator erred by not making reference to the relevant policy to guide him in ascertaining the proper transfer conditions.  This led to the erroneous conclusion that the transfer conditions were unfavourable.  He should have distinguished between temporary and permanent transfers and if he had, he would have found that the demands by respondents were outside what the policy provided for.  Respondents were therefore not entitled to the transfer package claimed.

Was the transfer maintaining the same conditions of service?

It is common cause that the transfers in question were lateral transfers in question were lateral and were to be done in terms of the conditions of service manual.  Appellant made a written undertaking that they would not lower the transferred employees’ salary, grade and benefits in line with the NEC conditions of service.  In this respect the transfers could therefore not be taken to have been unfair.

After considering all the grounds of appeal I find that the appeal is with merit and it succeeds and order as follows:

“The arbitral award by Honourable Arbitrator T.R. Viriri of the 28th November 2012 be and is hereby set aside in its entirety.  It is substituted as follows:

‘The transfers were fair’”

Bere Brothers, Appellants legal practitioners