Runyararo Magadzire v Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/592/16
HELD AT HARARE 27TH JANUARY 2016
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/592/16

HELD AT HARARE 27TH JANUARY 2016			CASE NO LC/H/REV/59/15

& 23 SEPTEMBER 2016

In the matter between:

RUNYARARO MAGADZIRE				Applicant

And

PUBLIC SERVICE COMMISSION			Respondent

Before The Honourable E Makamure, Judge

For Appellant			Mr W Magaya (Legal Practitioner)

For Respondent		L Mutambiri (Civil Division)

MAKAMURE J:

This is an application for review of a decision made by the respondent.

The applicant is employed by the Civil Service Commission (previously Public Service Commission) as a Principal Lecturer III. She is based at Harare Polytechnic.  She was appointed to that grade on 22 October 1992.

On 22 May 2006 she was appointed to the position of 2nd vice Principal by the then Principal of the Polytechnic, a Mr Raza. This was through a memorandum which was circulated to all Heads of Department of the institution.  It reads (p 27 of the record).

“Re: Appointment of Mrs Magadzire as Second Vice Principal (Training).

Please be advised that Mrs Magadzire has been appointed Second Vice Principal responsible for training with immediate effect.   This has been done to ensure that there is close monitoring to improve quality of our product.

There has been a lot of laxity on monitoring of students and lecturers in their attendance of lectures.

The Vice Principal, Training will be responsible for appraising HODs and monitoring their performance in class and will report to the Principal.

I hope everyone will give Mrs Magadzire maximum support in her tenure of duty as Second Vice Principal.”

Unfortunately the Principal Mr Raza is now deceased.  A new principal took over to head the institution.  This resulted in the applicant’s duties being restricted or reverting only to her duties as a lecturer.  This appears to be the applicant’s formal and correct designation.

The new principal introduced his own system.  For example at page 28 of the record there is a copy of a memorandum which reads:

“Please be advised that from 1 April; 2013 Mrs Ruziwe took over the post of Acting Vice Principal from Mr Chisita.  Her term in office will run till the end of May 2013.”

Mrs Ruziwe will be operating from the same office which was used by Mr Chisita.

May we all offer her all the necessary support she deserves.  Your cooperation will be greatly appreciated.”

When applicant was relieved of duties as 2nd Vice Principal she was aggrieved asserting that she had been demoted.  She duly engaged her employer, the Civil Service Commission and not the Principal of the institution through the appropriate grievance procedure.  Her employer considered her grievance and responded as follows:

“The above matter refers

Please be advised that the Commission turned down your request to be reinstated as “Second Vice Principal” and Training Manager since there is no such post on the Ministry’s establishment.”

What is interesting though is that the applicant was prepared to be addressed as lecturer and not 2nd Vice Principal depending on the circumstances.  In support of this observation, on 7 February 2011, the applicant required some recommendation to attend the 45th Annual International Association of Teachers of English as a Foreign Language in the United Kingdom.  The then Principal, Mr Raza wrote in part:

“I write to inform you that Ms Magadzire Runyararo is employed in the Ministry of Higher and Tertiary Education and she is currently deployed at   Harare Polytechnic in the capacity of Principal Lecturer.   She has been in the service from January 1981 for a continuous period of thirty one years now.” (My emphasis)

By the time that the above letter was written, the appellant was already at the Polytechnic and working as “Second Vice Principal.  The recommendation above did not address her as Second Vice Principal.  What this shows is that officially, the applicant was Principal Lecturer but internally and for reasons given in the memorandum dated 22 May 2006, she was a 2nd Vice Principal or a Training Manager.  There was no indication from the applicant that when she needed recommendation she protested for being addressed as a Principal Lecturer.

What this means it that where and when necessary the person in charge can put in place measures to ensure that the institution is seen efficiently.  I think this is a prudent administrative strategy to ensure the smooth running of entity.

The applicant as part of the institution was given a post which she was no doubt happy with.  But as the above shows, this was to enable the smooth running of the institution.  This was in no way a promotion.  Had this been so there would have been clear correspondence from the respondent to that effect.  It is trite that promotion is the prerogative of an employer (See City of Gweru v Josephat Munyari SC 15/05)

When one considers that for official communication outside the institution, the applicant was contend to be referred to as Principal Lecturer, it is my view that the response from the Commission sufficiently answered her grievance.  There was no official post of second vice principal at the Polytechnic.  Her post was created internally for the smooth running of the institution.

Section 92 EE of the Labour Act [Chapter 28:01] (as amended by Act 5/15)

Provides as follows:

“(1)	Subject to this Act and any other law, the grounds on which any proceedings

or decision conducted or made may … be brought on review before the Labour Court shall be –

absence of jurisdiction on the part of the arbitrator or the adjudicating authority concerned;

interest in the cause, bias, malice or corruption on the part of the arbitrator or adjudicating authority concerned;

gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.”

There are four grounds for review in the application.  However Mr Magaya only addressed on one of the four which is that

The determination made by the respondent is unreasoned and is on that score in breach of law.”

I take it he has abandoned the other three grounds.  That ground does not

appear fall under the grounds provided by the Act.  However authorities do show that any decision taken against a party must have reasons (See Fox & Varney (Pvt) Ltd v Sibindi 1989 (2) ZLR 173).  The respondent’s reasons or explanation to applicants grievance was that applicant was not demoted and there was no post of vice principal in its establishment. This in my view constitutes sufficient reasons for the decision.  It cannot be argued or suggested that the respondent did not explain its reason for taking the stance that the applicant was not demoted.

It is in view of the foregoing that I find that there is no merit in this application.

Accordingly it is ordered that the application for review be and is hereby dismissed with costs.

Coglan, Welsh & Guest, applicant’s legal practitioners

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