Netsai Chizema v Zimbabwe Red Cross Society

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/696/14
HARARE, ON 9th SEPTEMBER , 2014
CASE NO. LC/H/1055/12
AND 24 OCTOBER, 2014
JUDGMENT NO. LC/H/696/14
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IN THE LABOUR COURT OF ZIMBABWE                              JUDGMENT NO. LC/H/696/14

HARARE, ON 9th SEPTEMBER , 2014			             CASE NO. LC/H/1055/12

AND 24th OCTOBER, 2014

In the matter between

NETSAI CHIZEMA				–	APPELLANT

And

ZIMBABWE RED CROSS SOCIETY 	-	RESPONDENT

Before The Honourable E. Muchawa, J

For Appellant   :	Mr A. Chambati (Legal Practitioner)

with Mr Mafias Mahlonga (Legal Practitioner)

For Respondent:	Mr W. Magaya (Legal Practitioner)

MUCHAWA J,

This is an appeal against the decision of the Zimbabwe Red Cross  Society Managerial Disciplinary and Grievance Committee (the Committee). The Committee dismissed Appellant from Respondent’s employment with effect from 26th August 2013.

Appellant was employed as a Human Resources and Administration Manager by Respondent until the 17th September 2012 when she was advised, in writing of a management reshuffle and transfer through which she was to become the Director of Nursing Services with effect from the 1st of October 2012. In the new post she would be based at 98 Cameron Street in Harare as opposed to being stationed in Avondale, as she had been. The Appellant’s grade and salary would not be affected by reassignment.

It was explained that the transfer was as a result of the board’s resolution of the 25th day of June 2012. Appellant was one of the three top managers affected by this directive. It seems that a meeting was held on the 4th of September, wherein the two affected managers were advised of the Board’s decision through the Board Honorary Treasurer and a Technical Advisor.

A long exchange of letters seems to have ensued thereafter. On the 24th September, Appellant requested details pertaining to the new post to enable her to respond to the letter of the 17th September. She was not favoured with a response but was requested to do a handover and takeover report on the 26th September. This was to be done by the 28th September. The record shows that Appellant refused to do this requested report until discussions were exhausted. On the same day she received a letter which outlined the following as part of her duties;

Setting up Nursing Services Structure i.e. Advisory Committee in consultation with the office of Secretary General and the Board.

Establishing ambulance services beginning with Harare and later move to provinces.

Establishing and periodically review syllabus for nursing services in line with Ministry of Health and Child Welfare Policy and Standards

Co-ordinating Nursing Services

Networking with other agencies providing nursing services.

On the 1st of October Respondent wrote to Appellant urging her to take up the new post by the 2nd of October. When Appellant did not comply with this directive, she proceeded to lodge a grievance on the 8th October 2012. Included therein was the complaint of a unilateral charge of the terms and conditions of her employment which she alleged, was a repudiation of her contract of employment. This was done in terms of Respondent’s Code of Conduct. When this was ignored she escalated her grievance to the Disciplinary Grievance and Management Committee on the 12th October 2012.

Before the Disciplinary Grievance and Management Committee could meet as planned on the 25th October 2012, Applicant lodged an application with this Court on the 24th October 2012. Respondent then cancelled the Grievance hearing meeting on the basis that it was then before the Labour Court. She was suspended from work with pay on the 31st October 2012 until the decision of the Labour Court was available. Appellant proceeded to withdraw her application before the Labour Court.

Thereafter on 15th November 2013, Appellant was charged, in terms of the Respondent’s Code of Conduct Group D Offences. Count one related to wilful disobedience  of a lawful order or instruction given by an immediate superior. It related to Appellant’s refusal to perform the new duties of Director of Nursing Services for a period of 30 days from 1st October to 31 October 2012.

The second count was of absence from work for five or more consecutive working days without prior permission. The facts giving rise to this count were that, following some conciliation proceedings, Respondent’s representatives wrote to Appellant’s representatives advising that her suspension had been lifted and she was to report for work on 26th August 2013 at the head office. Appellant had not reported for work by the 15th November 2013.

The Managerial Disciplinary Grievances Committee found Appellant guilty and dismissed her, hence the present appeal.

The grounds of appeal are questioning the propriety of the convictions on both counts and whether Respondent acted properly in dismissing Appellant before dealing with the grievance she had lodged. I deal with these issues below.

Whether or not the dismissal of appellant for the offence of disobedience of a lawful order was fair.

Appellant argues that she did not take up the post of Director of Nursing Services because it was a unilateral and material variation of her employment contract. She alleges that she was not consulted in this process and the new post is viewed as a demotion and downgrading of her status and affected her dignity. Appellant claims her salary and benefits were not paid after the purported transfer, so Respondent was creating a non-conducive environment for continued employment.

The order that is alleged not to have been complied with, is said to be unlawful as it violated the spirit of the Labour Act [Cap 28:01], Section 2A(1)(e) which states the purpose of the Act as promoting the participation by employees in decisions affecting their interests at the work place.

Appellant claims to have been punished for challenging the unilateral variation of her contract. The suspension letter states:

“… the suspension has been necessitated by your conduct in intentionally refusing to obey and adhere to a board directive that you be transferred.”

The above action is said to be a violation of Section 6(1)(e) of the Act which states that an employer should not hinder or obstruct or prevent an employee from or penalize him for seeking access to any lawful proceedings that may be available to him to enable him to advance or protect his rights or interests as an employee.

Appellant directed me to the two job descriptions to demonstrate the material variation in the contract. The old job included;

strategic planning in the human resources function for the whole organization

recruitment and selection

industrial relations

human resources information management

performance management and job evaluation

manpower development

management of organizational assets

This is said to be different from what is outlined above in respect to the new post. in particular, she claims she would be unable to perform the function of establishing and reviewing the syllabus for nursing services as she is not a nurse.

I was referred to case law too in support of Appellant’s case. The case of Taylor v Minister of Higher Education and Another 1996 (2) ZLR 772 (SC) was cited for the proposition below;

“the maxim audi alteram partem expresses a flexible tenet of natural justice that has resounded through the ages. The audi principle applies both where a person’s existing rights are adversely affected and where he has a legitimate expectation that he will be heard from before  a decision is taken that affects some substantive benefit, advantage, or priviledge that he expects to acquire, retain and which would be unfair to deprive him of without consulting him.”

Appellant claims she was not heard as envisaged in the Taylor case supra. She was simply advised that she had to comply with a Board directive. The Danai Guruva v Traffic Safety Council of Zimbabwe SC 30/08 was further cited in support of this contention.

The matter of Colcom Foods Ltd v Kabasa SC 70/02 was cited in support of the fact that it is not an act of misconduct  for an employee to refuse to accept a change in his conditions of service and that in such a case disciplinary proceedings should not precede a termination.  In that case an employee who was employed as a Human Resources Manager who was allowed to sit as a member of the Board of Directors of Colcom refused to accept  a variation that withdrew his status as a Director.

The Respondent contends that as the employer it has the prerogative to transfer an employee from one place to another as it knows better where the services of such employee will be utilized. Such exercise of an employer’s discretion should not be interfered except where good cause is shown. For this, reliance was placed on the Taylor and Guruva cases supra. It is stated too that since Appellant would continue to be stationed in Harare, no prejudice would be suffered.

A further argument advanced is that there is no material change to Appellant’s terms and conditions of employment. The old job description is said to have related mainly to Human Resources management, recruitment and general administration. The new job is said

to include co-ordination of nursing services, recruiting and training and monitoring of nurses and patients, marketing and payment processing. It is contended that she would continue to receive the same salary and benefits and retain the same grade.

Respondent argues too that an employer has a common law right to vary the duties of an employee and that this is all that happened in casu.

The audi alteram partem principle is said to have been fulfilled as a meeting was held on 4th September 2012, with Appellant to advise her of the decision to transfer following the Board resolution. Reference is also made to the written correspondence between the parties as evidence of consultation.

It is denied that Appellant was demoted by virtue of the transfer. Such transfer is said not to amount to a reduction to a lower rank or class as Appellant would still report to the Secretary General.

The transfer is also said not to be any form of victimization as it is alleged to have affected all the three top managers.

I wish to start with whether there was consultation of Appellant as envisaged by the Taylor case supra. My perusal of the record shows that the meeting in question was one where the Board representatives were simply communicating a resolution that the Board had already made. As a senior member of management, Appellant had a legitimate expectation to be heard from before the Board made a resolution that would take away some advantage or benefit. In the Danai Guruva case supra, the employer is even given an opportunity to correct a decision by hearing an employee before re-affirming a transfer. In casu, to date Appellant’s grievance has still not been heard. There has been no attempt to hear and consider Appellant’s position on the matter.

The reference to the correspondence between the parties and the grievance form does not help Respondent. It reiterates that there were no responses to the questions raised regarding the unilateral variation of the contract.

It is my finding therefore that the Labour Act was not complied with and the audi alteram partem rule was violated regarding the hearing of Appellant on this issue.

On the issue of the unilateral variation of the contract, one has to go no further than comparing the duties in the old and new post. I find that Appellant who had previously occupied a strategic position in Respondent’s organization was now being pushed into a co-ordinating role for a unit for which she was not qualified. I note too that even though re-organisation was alleged, an acting person for her old post, one E. Khosa was immediately appointed on the pretext that the position was vacant.

There is no doubt that Appellant was demoted. she was removed from managing the organisation’s Human Resources totaling around 159 together with assets spread across the country and the incidental administration role, to co-ordinating just a unit for which she was ill-equipped in terms of her qualifications for some of the roles expected.

I therefore find that Appellant should not have been suspended and dismissed for the challenge to the unilateral variation of her contract. I find too that the order that she was alleged to have disobeyed was therefore not lawful as it contravened both statute and case law. It was not an act of misconduct for Appellant to refuse to accept the change in her conditions of service.

Whether or not the dismissal of Appellant for alleged absence from work for 5 or more days without reasonable excuse was fair?

It is Appellant’s case that at the conciliation before the Ministry of Labour, Respondent conceded that the suspension of the 31st October 2012 was unlawful. Respondent’s lawyers then wrote to the Appellant on 20th August 2013 advising her to report for work on the 23rd August 2013. Appellant absented herself from work after communication that she needed a letter from the Secretary General lifting the suspension as he was the one who had suspended her. One Bernard Mupandira and Morris Muchawira are said to have represented the Respondent in confirming that such a letter would be delivered.

The letter purporting to lift the suspension came from Respondent’s lawyers. Appellant through her lawyers requested that such a letter should come from the Respondent itself and not the lawyers. There was no response to that and a subsequent letter of the 30th August 2013. Thereafter Appellant was served with a notice to attend a disciplinary hearing.

In the circumstances, Appellant believes the dismissal on abseentism grounds was unfair as the Respondent by choosing to ignore the Appellant’s letter and not lifting the suspension, as requested is said to have induced the alleged misconduct.

A perusal of the disciplinary hearing minutes shows that Respondent’s representative was not aware that his legal representatives had not responded to the letter in question. He concedes that the employer was supposed to lift the letter of suspension.

I was referred to the case of Mhowa v Beverley Building Society 1998 (1) ZLR 546 (S) for the contention that even if Appellant had no lawful excuse for absenting herself from work, she still had a reasonable excuse as she was acting on the basis of legal advice from her lawyers. Such advice was said not to be so bizarre that no reasonable person would have entertained it.

Respondent argues that Appellant refused to resume duties even though she was obliged to obey instructions from her employer. Hiding behind the advice of her lawyers is said to be a lame excuse because the lawyers are said to be agents of their client, the Respondent.

I was referred to the case of Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (S) for the submission that as a person under suspension, Appellant had an obligation to hold herself available to perform her duties, if called upon to do so.

I find that the above case is distinguishable as it relates to a suspended employee who proceeded to take up alternative employment whilst on suspension. In casu Appellant is saying, “I am available for work but please lift the suspension yourself and not through your lawyers.” I have to decide whether that was a reasonable excuse in the circumstances.

I find that there was nothing bizarre in Appellant believing the advice of lawyers as contained in the letter that;

“We advice (sic) with all due respect that, our client was suspended in writing by your client and that therefore it is your client which should write to our client lifting the suspension and not yourselves. You can only write attaching the letter lifting the suspension by your client but as you are not our client’s employer you cannot revoke or set aside the suspension.”

A perusal of the record did not yield any signed certificate of settlement and I was not pointed to any.

In the circumstances the conviction and dismissal of Appellant on the second count was unfair.

There is no basis to deal with the last issue raised by the notice of appeal, for which both parties did not make submissions.

Consequently I order as follows:

The appeal succeeds with costs.

The dismissal of Appellant by the Managerial Disciplinary and Grievances Committee of the Zimbabwe Red Cross Society is set aside and substituted as follows;

“The Appellant be and is hereby reinstated to her position without loss of pay and benefits from the date of her unlawful dismissal. Alternatively, if reinstatement is untenable, Appellant should be paid damages in lieu of reinstatement. Such damages will be negotiated by the parties, failing which either party can approach the Court for quantification.”

Chambati, Mataka and Makonese – Appellant’s legal practitioners

Coghlan, Welsh and Guest – Respondent’s legal practitioners