John Madziya (Labour Officer) N.O v TM Pick 'n' Pay & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 29TH APRIL 2023 AND 5TH JULY 2023
JUDGMENT NO. LC/H/192/23
CASE NO. LC/H/763/22
JOHN MADZIYA (LABOUR OFFICER) N.O Applicant
And
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IN THE LABOUR COURT OF
ZIMBABWE HARARE, 29TH, APRIL,
2023 AND 5TH, JULY, 2023

JOHN MADZIYA (LABOUR OFFICER) N.O
And
TM PICK ‘N’ PAY
RICKY TAPFUMANEI
FARAI BHONDAYI

Applicant
1st Respondent
2nd Respondent
3rd Respondent

Before the Honourable Kachambwa, Judge;

For the Applicant: No appearance
For the 1st Respondent: Lisa Sibanda
For the 2nd & 3rd Respondent: Blessmore Maenzanise

KACHAMBWA, J:

The Application

1. This is an application by a Labour officer for the confirmation of his draft ruling. It is in terms of section 93(5a)(a)(b) of the Labour Act Chapter [28:01] (hereafter the Act). It is supported by second and third respondents and opposed by the first respondent.


The Background For The Draft Ruling

2. The second and third respondents were employed by the first respondent on a permanent basis i.e contract without limit of time. They were employed as section managers at one time. They were moved to the head office into the office of buying clerks. The post of buying clerk is a higher post than that of section manager. It is a post with new responsibilities. There was an increase of ZWL90-00 in salary. There was no paperwork to effect the movement to the new post. There were no other benefits that were paid. The two respondents claimed that in actual fact their post was that of field manager and not a buying clerk. They therefore called upon the first respondent to regularise the promotion and pay the requisite benefits for a field manager which benefits included-

1. Higher salary;
2. Vehicle allowance;
3. Cell phone allowance;
4. Email/internet access; and
5. Disturbance allowance.

3. The first respondent denied that the two respondents had been promoted to the position of field managers. It also gave the two respondents the option to remain in the position of buying clerk or go back to their former position or be retransferred to that position anyway. They insisted with the claim for “regularisation of the transfer into a promotion to the post of field officer. They transferred back to the post of section manager. They filed a claim of unfair labour practice in that the first respondent was refusing to formalise their promotion to field managers.


The Ruling

4. The labour officer’s ruling was based on the organogram of the first respondent.

He reasoned that the position of Buying Clerk/Assistant was higher than that of field manager and was at par with Regional Manager, General Manager and Buyer. The labour officer ruled that the employees had been promoted to the post of field manager in the circumstances. He therefore ordered that the employer formally acknowledges this and effects the promotion within 14 days of his ruling. The promotion was to be from the 18th November 2014. The employer was also ordered to pay arrear salaries and benefits as may be agreed between the parties and failing such agreement either party could approach the labour officer for quantification.

Responses to the application

5. The first respondent opposed the confirmation of the draft ruling. Firstly it argued that this was not a case of right but one of interest. Consequently the labour officer lacked jurisdiction. It said that promotion is not a right but interest. The employer promotes at its discretion. Secondly it argued that there was no evidence to support the ruling. The said organogram was not produced in evidence. The job descriptions of the posts were not produced. Consequently there was no evidence to show the similarities. There was no documentary evidence of the promotions. These were lateral transfers only and at the same level.

6. The second and third respondents supported the application and filed identical supporting affidavits. They claimed that the applicant had jurisdiction to hear the matter. They berated the first respondent for not cooperating in that it did not attend the arbitration and did not communicate. They admitted that there was no agreement to go to arbitration but they blamed it on the first respondent who they said was not cooperative. They insisted that the transfer was on promotion and should be formalised as per the draft ruling. The promotion was in the transfer.

Is this a matter of interest or right?

7. To the extent that the employees are saying that they are already transferred and what they are seeking is formalisation it is not a matter of interest. They are claiming recognition of a right. They are saying that the right to be paid a higher salary has already accrued. They are not negotiating an increase. They are arguing that they are already transferred, promoted and corollary benefits must follow as a right. Therefore that is not a question of interest. It is a correct argument. To that end the labour officer had jurisdiction.

Was there a transfer To The Position of Field Managers?

8. The applicant admits that after transfer the second and third respondents were classified as Buying Clerks or Buying Assistants. They had reporting structure different from that of the field managers. The only reason for saying that they were promoted to the field manager position is the organogram. However there was no organogram in the submissions before the applicant. Even the second and third respondents had to attach it in the current proceedings. But more important is the point that the positive paperwork says that the transfer was to the positions of Buying Clerks. The salaries are not for field managers. It was not the intention of the employer to place the employees in those field manager’s position. When the employees claimed those positions the employer was even prepared to return them to their previous posts. It is not for the applicant to promote them or to re-grade them. After all they are not asking for a regrading of their post. They are claiming that their transfer was to the post of field manager and not buying clerk. The transfer is done by the
 4 employer and not the employee or the applicant. What the employee can claim is a re-grading of his position if it is his opinion that it is infact of a higher grade.

That is not for the court to do. The court should neither re-grade the posts nor promote them. For those reasons the application for confirmation may not succeed.

9. The law is clear that promotion is the prerogative of the employer. So if the employer says that he has not transferred to X position that is it. If an employee thinks that the post deserves a different grade that is another issue which the parties may negotiate. The prerogative is pronounced in **City of Harare v Makedenge [2014] ZWLC 23** as was held in **Muwenga v PTC 1997 (2)**

**ZLR 483(S);**

“Indeed it could be contended that with some persuasion that the promotion of an employee is a priviledge left to the discretion of the employer. It is not a right an employee is entitled to claim, unless his contract so provides”.

Therefore in this case the employee either accepts the transfer or he does not. He is free to negotiate a re-grading of the post but there is no right that has accrued. The employer cannot be forced to place the employee in a position that the employee was not considered for. That would be contradictory to the employer’s right to promote.

**Costs**

10. The issue of costs is a bit problematic in that the applicant is acting “nomino officio”. It is a duty imposed on him by the law. It would therefore not be fair to award costs against him. Those costs would otherwise be bourne by the state. That was not the intention. That would be inimical to the process.


5


Disposition

In view of the above observations the draft ruling cannot be confirmed. It is accordingly ordered as follows;

1. The application for confirmation of the draft ruling be and is hereby dismissed.
2. Each party bears its costs.
--- END OCR FALLBACK ---