Anderson Chizanga v Agribank

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/820/14
HELD AT HARARE ON 22nd SEPTEMBER, 2014
CASE NO. LC/H/92/14
AND 19TH DECEMBER, 2014
JUDGMENT NO. LC/H/820/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/820/14

HELD AT HARARE ON 22nd SEPTEMBER, 2014   CASE NO. LC/H/92/14

AND 19TH DECEMBER, 2014

In the matter between:-

ANDERSON CHIZANGA							Appellant

And

AGRIBANK									Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: 	Mr. T. Marimo (ZIBAWU)

For Respondent: 	Mr. J. Dondo  (Legal Practitioner)

MHURI J.:

Appellant was aggrieved by the National Employment Council Appeals Board’s decision upholding Respondent’s decision to transfer him from Harare to Hwange and has approached this Court seeking a reversal of the transfer.

The brief background which forms the basis of the attack of the Appeal Board’s decision was that:

Appellant and two other work colleagues raised a grievance over their grades.  The grievance ended up at the Ministry of Public Service, Labour and Social Welfare for conciliation and later compulsory arbitration in 2012.

In February, 2013 Respondent resolved that grievance by changing the grades as per the Appellant’s case (B1 to B3) and resultantly withdrew the matter from the Arbitrator.

Despite changing the grades, Respondent did not effect the back pay due which led to Appellant and colleagues raising another grievance in May, 2013.

In June 2013 the issue was referred to the National Employment Council for the Banking Industry Appeal Board.

Whilst the matter was still pending at the National Employment Council Appeals Board, Appellant and the other colleagues were on the 19th June 2013, served with letters of transfer from Harare to other of Respondent’s branches.  Appellant was transferred to Hwange and the other two to Murambinda and Jerera respectively.

It was Appellant’s argument that the transfer was a way of penalizing him for having raised the two grievances which issue the Appeal Board failed to consider.  He based his argument on the fact that he was not consulted before the transfer was effected.  He was only given eight (8) days notice to move from Harare to Hwange which is about 780 km away.  He was not given the reason for the transfer until after he had raised a grievance challenging the transfer.

Appellant submitted that the Appeal Board misdirected itself in finding that there was no nexus between the prior events and the transfer.

It was not in contention that upon his engagement Appellant signed a contract of employment in which one of the clauses provided that an employee could be transferred to any of Respondent’s branches at any time.

It is also not in contention that the prerogative to transfer an employee vests solely with the employer.

GURUVA V TRAFFIC SAFETY COUNCIL OF ZIMBABWE 2009 (1) ZLR 58

From the record, Appellant was not averse to the transfer.  During the hearing of his appeal by the Hearing Officer, he stated at page 31 of the record:

“Í am not refusing to be transferred but I feel I am being victimized because of a pending issue.

Management should take into account that I am a family person.

There are other branches nearer than Hwange.

If the transfer was to CCD Bulawayo there was no problem.”

From a close look at the events that happened before the transfer was effected I am persuaded to come to the conclusion that there was a link between the transfer and the raising of the grievances.  The proximity and coincidence between the two events certainly raises eye brows.

The second fact which was not disputed by Respondent that those who raised the grievances together with their worker representative were transferred at the very same time, also goes to further persuade me that there was a link.

The third factor is that of the time period within which to move to Hwange.  Appellant was only given eight (8) days.  To say that he could seek an extension of time to me is neither here nor there.

The fourth factor is that prior to the transfer, Appellant was not given an opportunity to be heard.  He was not consulted but was just served with a letter of transfer advising him to move to Hwange in 8 days time.  The fact that later there was a meeting and an appeal hearing is also neither here nor there in my view.

The fact still remains that Appellant was not heard before the decision to transfer him was made.

See:

HEALTH PROFESSIONS COUNCIL V McGOWN 1994(2) ZLR 333

in which it was stated-

“Once a decision has been reached in violation of natural justice, even if it has not been implemented a subsequent hearing will be no meaningful substitute.”

The fifth factor is that no reason was given for the transfer.

The sixth factor is the manner Appellant was asked to hand-over the keys and move out of the office.

In view of all these factors, I find that the Appeals Board erred in concluding that there was no nexus between the transfer and the raising of the grievances.

The Supreme Court in the case of –

DIRECTOR OF WORKS AND ANOTHER V.NYASULU AND OTHERS

SC 27/2002

found as unacceptable the employer’s actions in effecting punitive transfers in the guise of administrative actions authorized in terms of regulations governing its operations.  This is what happened in casu, and it cannot be allowed.

Section 6 of the Labour Act [Chapter 28:01] protects employee’s rights to fair labour standards.

“(1)	No employer shall –

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…

…

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hinder, obstruct ………… penalize him for seeking access to any lawful proceedings that may be available to him to enable him lawfully to advance or protect his rights or interests as an employee.”

What Respondent did in casu, fell foul of this particular provision.

To that end therefore the transfer was unlawful and the appeal must be allowed.

Accordingly it is ordered that the appeal be and is hereby allowed.  The transfer be and is hereby set aside.

ZIBAWU–Appellant’s Legal Practitioners

Dondo and Partners–Respondent’s Legal Practitioners