Kaguri Nyarai & 6 Ors v The Minister, Primary & Secondary Education & 4 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/493/2016
HARARE, 21 JULY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/493/2016

HARARE, 21 JULY 2016				        CASE NO. LC/H/APP/39/15

AND, 19 AUGUST 2016

In the matter between:-

KAGURI NYARAI							1st Applicant

And

MASAKURE FOGI							2nd Applicant

And

TAKAWIRA RUWADZANO					3rd Applicant

And

RUWISI PEGGY								4th Applicant

And

CHIDEME MORLEY						5th Applicant

And

TANYANYIWA GRACE						6th Applicant

And

KANOVHETI TATENDA						7th Applicant

And

THE MINISTER, PRIMARY & 					1st Respondent

SECONDARY EDUCATION

And

THE PERMANENT SECRETARY FOR				2nd Respondent

PRIMARY & SECONDARY EDUCATION

And

THE SECRETARY FOR PUBLIC 					3rd Respondent

SERVICE COMMISSION

And

THE PROVINCIAL EDUCATION DIRECTOR			4th Respondent

HARARE METROPOLITAN PROVINCE

And

THE DISTRICT EDUCATION OFFICER			5th Respondent

HATFIELD DISTRICT

Before Honourable Murasi, J

For Applicants		Ms N.R. Ngavi (Trade Union Representative)

For Respondents		Ms K. Warinda (Legal Officer)

MURASI J,

This is an application for review.  The applicants are teachers at various schools in Harare.  At the beginning of 2016, in January, applicants received letters requiring them to transfer to respective schools within Harare Province.  The letters informed the applicants that these transfers were with immediate effect.

Applicants aver that there was no legitimate reason given for the orders to transfer except to state that there was overstaffing at the schools concerned.  It was further alleged that these transfers were not planned as provided in section 13 (3) of the Public Service Regulations, Statutory Instrument 1 of 2000.  Applicants alleged that this was in violation of the audi alteram partem principle which requires that applicants should have been afforded the opportunity to be heard before the decision was made.  It was applicants’ further point that the actions taken by the respondents were unlawful discriminatory, arbitrary and unfair.

Respondents did not file any response Ms Warinda stated that she did not have any instructions from the respondents and therefore could not have filed any response.  She  further indicated that correspondence had been addressed to the respondents to give the Civil Division of the Attorney General’s Office instructions but no response was forthcoming.  Ms Warinda further stated that the Notice to Respond sent out to the respondents had not been forwarded to their office.  A reading of the record shows a different picture.  The record shows that the application itself was served on 2nd and 3rd respondents as well as the Civil Division on 18 January 2016.  The Form LC2 from the Registrar was served on the 2nd and 3rd respondents as well as the Civil Division on the 18 January 2016.  That the respondents did not give instructions to Ms Warinda’s office is another matter.  The Notice to respond was served on the Civil Division.  There was proper service of the documents and no response was filed with this Court.  The matter is therefore unopposed.

Ms Ngavi, for the applicants stressed the issue that the transfers were unfair and inconsistent with the audi alteram partem principle. She further argued that in a previous hearing, respondents had entered into a Deed of Consent where respondents had undertaken not to effect transfers in the future without following the laid down procedure.  Ms Ngavi stated that this had been done before Justice Maxwell in Case No. LC/H/46/13 and that the respondents had reneged on this undertaking.

Precedent shows that such matters have been deliberated upon and the courts have generally stated, that employees have a legitimate expectation to be heard where such transfers are concerned.  In terms of the common law an employer has the right to vary the duties or location of work or department as long as it is not substantially different from the initial job description.  However, where such transfer is necessary the employee is entitled to be informed of the reasons for such transfer before it is carried out.  Section 13 of the Public Service Regulations emphasized the fact that this should be planned in order to minimize discomfort on the part of the members concerned and his/her family.  Such a safeguard can only be achieved where the employee concerned has been consulted.  DIDCOTT J had occasion to emphasize on the audi alteram principle in Hlongwa vs Minister of Justice, Kwazulu 1993 (2) SA 269 at 273 thus:

“So one can well conceive of a situation in which anyone like the respondent could be faulted for going ahead with a proposed transfer, despite the personal inconvenience, even hardship perhaps, to the transferee, provided however the transferee has had the opportunity to have his or her say in the matter, so that what there is to be said the other way may be fairly taken into account together with the pressing needs of the department concerned.  There is no doubt in my mind that a person in the applicant’s position, and I say nothing about people who are in position different from hers, does enjoy at present a benefit or advantage or privilege of being where she is which she could reasonably have expected to retain and which it would have been unfair to deny to her without prior consultation, and the opportunity to make representations.”

The record shows that applicants have served in various capacities for different periods of time.  Ms Ngavi gave an example of 2nd applicant who has been at the same school for twenty three (23) years.  It was stated that many teachers joined the school after her and no reason was given for her transfer apart from “overstaffing”.  The gravamen of the complaint was that it would have been proper to have consulted her and heard her side of the story.  The other issue raised by the applicants was that the respondents had undertaken, before this Court, that any future transfers would be procedurally undertaken.  It is clear that the respondents reneged on this undertaking.

Did the applicants have a legitimate expectation of being heard?  Applicants had been at their respective stations for varying periods of time.  The affidavits show that they faced different transport challenges if transferred in this haphazard manner.  Some of the applicants enjoyed certain benefits at their respective stations.  In my view what was required was not a full-fledged inquiry but that the applicants be given an opportunity to make written submissions.  In casu, the record shows that most applicants were approached on the date they resumed duty for the 2016 educational year and were confronted with the letters of transfer.  These letters enjoined the applicants to transfer immediately to the new stations.  This is hardly the situation envisaged in the provisions of section 13 (3) of the Public Service |Regulations which provide that minimum discomfort should be occasioned to a member of the Service.

I associate myself with the sentiments of GARWE J (as he then was) in Kanonhuwa vs Cotton Company of Zimbabwe 1998 (1) ZLR 68 (H) where he had this to say at 75B:

“The underlying principle is fairness.  Even where a contract of employment is silent on the entitlement of an employee to be heard before transfer, this does not mean that such transfer should be processed without the employee being heard.”

It is my firm view that the respondents should have, observed the audi alteram partem principle.  The application ought  to succeed.

The Court makes the following order:

The application for review, being with merit, be and is hereby granted.

The decision of the respondents to transfer the applicants to the respective schools be and hereby set aside.

Each party to meet its own costs.

Civil Division of the Attorney General’s Office, respondents’ legal practitioners.