University of Zimbabwe v John Bowora and Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/264/2013
HELD AT HARARE ON 04 FEBRUARY, 2013
JUDGMENT NO. LC/H/264/2013
---------




IN THE LABOUR COURT OF ZIMBABWE     		JUDGMENT NO. LC/H/264/2013

HELD AT HARARE ON 04 FEBRUARY, 2013		CASENO./LC/H/303/2012

In the matter between:-

UNIVERSITY OF ZIMBABWE					-	Appellant

And

JOHN BOWORA AND ANOTHER				-   	 Respondents

Before The Honourable L. Hove: President

For Appellant 	-	Advocate L. Uriri (Legal Practitioner)

For Respondents -	G. Matsoka (Legal Practitioner) for 1st Respondent

T. Katsururu(Legal Practitioner) for 2nd Respondent

HOVE L.:

The Respondents were employed by the University of Zimbabwe as full time lectures in the University’s Department of Rural and Urban Planning.

They were employed in terms of the University of Zimbabwe Act and in terms of that Act, they were employed for a probationary period of three years after which they could be granted tenure that is if they met certain outlined requirements.

The University terminated the contracts of employment after the 3 year probationary period and it is that termination which resulted in these proceedings.

The Respondents successfully challenged the decision to deny them tenure before an arbitrator.  The University was not happy with the award and appealed to this court.

The grounds of appeal were that;

The Honourable Arbitrator erred in finding that;

The Respondents’ were unlawfully denied tenure by Appellant when it was clear that they had failed to meet the requirements of granting of tenure; and

Respondents ought to be reinstated when Appellant had not unfairly dismissed them as their contracts of employment had merely not been confirmed upon expiry of the probation period.

The university  argue that the Arbitrator was wrong in his finding that the denial of tenure was wrongful and therefore unlawful.

This argument by the university is premised on the fact that the Appellants had failed to satisfy one of the requirements for the granting of tenure which was;

“Satisfactory Research”

The university in heads of arguments filed in its behalf submitted thus;

“The Appellants submission throughout these proceedings was that the Respondent failed to meet all the conditions.  The specific condition that Respondent failed to meet was 8.5.2, that of ‘satisfactory research’ “

The letter to the Respondents however does not give this as the reason for the failure to grant tenure.  The letter that terminated the employment reads in the relevant part as follows;

“I write to advise that at its meeting held on 6 September 2011, the Academic Appointments Board for Lectureship posts in the faculty of Social Studies noted that you do not have a foundation and background to teach on the Rural and Urban  Planning Programmes.  The Academic Appointments Board agreed that you should not therefore be granted tenure as per section 8.7.2 of the Academic Staff Grading, Tenure and Promotions, Ordinance No.28.

-------- on behalf of the Council of the University of Zimbabwe, to notify you that your contract of employment with the university will terminate on 20 December 2011.”  My emphasis.

The sole reason therefore given for the refusal to grant tenure was that the Respondents had no foundation background to teach in the relevant department.

The Respondents argue that the assessment of the quantity of research output in terms of Section 7.3.3 of the ordinance is only applicable in cases where the council is considering promotions and not for purposes of granting tenure where the criteria is given simply as

“satisfactory research”

The relevant ordinance were not placed before the court to disprove the Respondent’s claims.

The court finds that this requirement most likely did not apply in cases were the council was considering tenure and not promotions.  I say so because the council could not have failed to state this reason as the reason for refusing to grant tenure.  The reasonable inference from the reason given by the council is that research considerations had together with the other considerations been considered and the Respondents have been found to have been satisfactory.

There can be no other reason why the council failed to specifically allege that the reason for failing to grant tenure was unsatisfactory research.  The Departmental Government Ordinance 1982 (Ordinance No.25) clearly stipulates in Section 8.5 that;

“The criteria of granting tenure on completion of the probationary period shall be:

8.5.1 Satisfactory teaching

8.5.2 Satisfactory Research

8.5.3 Satisfactory University Service”

After sitting down to consider the Respondent’s performance at the end of the probation, the council does not state that the Respondents had been found wanting in their teaching, research or university service.   One can only conclude that they had met the requirements of 8.5.1, 8.5.2 and 8.5.3.

The giving of a reason outside the set criteria shows that the council had acted outside the set provisions by taking unnecessary considerations and acting ultra vires the provisions of ordinance No. 25.  Their actions were in this regard unlawful.

The criteria set out does not also provide that a certain number of papers had to be published.  The university is trying to sanitize its wrong Act by importing more stringent requirements which were not set out in Section 8.5 of Ordinance No.25.

I accept therefore that on a balance of probabilities, Section 8.5 governed the criteria for the granting of tenure and not Section 7 of Ordinance No.25 and even if I am wrong in this regard the university council itself never gave as reason for failing to grant tenure a breach of Section 7.3.3 but their sole reason for refusing to grant tenure was lack of a foundation and background to teach on the Rural and Urban Planning Programmes.

It is not denied that the consideration to be taken into account when deciding to either grant or refuse tenure did not include the fact that one had no foundation background.

It was therefore wrongful and unlawful to refuse to grant tenure for that reason.  Having found thus, it follows that the refusal to grant tenure was unlawful.

Much has been said and argued about the fact that the Respondents had not satisfied some other consideration but that was not the reason given by the university council in refusing to grant tenure.

The university realizes that it acted wrongfully and now seeks to correct its acts by giving a reason which did not exist or at least which it did not consider relevant when it decided to refuse to grant tenure.  The reason now given was not the reason originally given and the university council’s actions can only be judged in the light of their official communication.

The second ground of appeal is basically that the Respondent’s contracts were probationary as such the contracts were akin to contracts of a fixed term and such contracts expire at the expiry of the probation period or with effluxion of time.

This ground was not seriously pursued or argued.  It was not argued at all in the heads of arguments submitted by the university.  The reasonable interference is that the university abandoned that ground of appeal.

Even if they had not abandoned that ground, it is unlikely that the university would have succeeded on it for the sole reason that the university probationary contract is different from general probation contract in that it is regulated and governed by statute which does not provide that the probation period will expire with the effluxion of time.

Statute make it mandatory that certain outlined considerations be considered and if the Applicant met those conditions then tenure is to be granted.  It follows also that if they are not satisfied, then tenure is to be denied.  In this regard the university’s probation contracts of employment can be distinguished from the average probation contracts and different considerations come into to play.

The arbitrator’s conclusion of fact that the Respondents satisfied the laid out requirements is a conclusion of fact arrived at by the Arbitrator after considering the evidence placed before her and is therefore not appealable to this court by virtue of the operation of the provision of Section 98(10) of the Labour Act [Chapter28:01] (the Act) which provides that appeals to the Labour Court from decisions of Arbitrators are only on points of law.

It is therefore outside the court’s authority to interfere with factual findings by the Arbitrator unless it can be shown that the factual conclusions are so grossly unreasonable that no reasonable person applying their mind thereto could have arrived at such a conclusion.  There has been no such allegation in casu.

The first ground of appeal is clearly challenging the Arbitrator’s conclusions of facts and does not allege that there was gross unreasonableness on the part of the Arbitrator.

The second ground of appeal also challenges the fact that the Arbitrator found that there had been unfair dismissal which is in essence factual and not appealable to this court.

It is therefore for three reasons that this appeal cannot succeed.

The grounds of appeal do not challenge or raise any point of law neither do they allege gross unreasonableness in the factual conclusions by the Arbitrator,

The reasons for refusing to grant tenure, that the Respondents had no foundational background, were not part of the criterion for granting tenure in terms of the Departmental Government Ordinance 1982(Ordinance No.25), and

Reasons for refusing to grant tenure cannot be crafted after the effect.  The reason given was not unsatisfactory research but absence of foundational background.

In the result, the appeal must be dismissed and I make the following order;

The appeal be and is hereby dismissed.

The award by the Arbitrator be and is hereby confirmed.

That there be no order as to costs

Ziumbe and Partners– Appellant’s Legal Practitioners

Wintertons– 1st Respondent’s Legal Practitioners

Zimbabwe Legal Centre- 2nd Respondent’s Legal Practitioners