Tinevimbo Gatawa v Civil Service Commission

### Preamble
Judgment No. SC 81/20
1
Civil Appeal No. SC 517/18
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REPORTABLE	(71)

TINEVIMBO     GATAWA

v

CIVIL     SERVICE     COMMISSION

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, GARWE JA & BHUNU JA

HARARE, NOVEMBER 26, 2019 & JUNE 18, 2020

T. Zhuwarara, for the appellant

J. Bhudha, for the respondent

GWAUNZA DCJ

[1]	This is an appeal against the whole judgement of the Labour Court handed down on the 26 January 2018. At the end of the hearing in this matter we issued an order in these terms, and indicated that full reasons thereof would follow in due course: -

“1.	The appeal is allowed with costs.

2.	The judgement of the court a quo is set aside and substituted with the following: -

(i) 	The application for review be and is hereby granted with costs.

(ii)	The decision of the respondent placing the applicant on retirement is set aside.

(iii)      The applicant be and is hereby reinstated to his former position 	 without loss of salary and benefits from the date of the 		purported retirement.

(iv)	 In the event that reinstatement is no longer possible, the 			respondent is to pay damages in lieu of reinstatement as may be 		agreed 	upon by the parties failing which either party may 			approach this court for quantification of such damages.”

These are the reasons for the order.

BACKGROUND FACTS

[2]	The appellant was employed by the respondent as a Legal Advisor under the Ministry of the Public Service from the 10 September 2012. On 7 November 2013, he was transferred to the Ministry of Industry and Commerce without loss of salary or salary scale. Upon transfer, the appellant’s monthly allocations of fuel and airtime were reduced. Aggrieved by this development, the appellant noted a grievance with the Director of Finance Administration and Human Resources. In a letter dated 11 November 2013, the respondent confirmed the amounts of fuel and airtime due to the appellant. However, this confirmation was reversed by the Director of Human Resources who stated that the letter was unauthorized and therefore not binding on the respondent. The Secretary for the Ministry of Industry and Commerce further emphasized that the allowances that the appellant sought were way beyond the means of that Ministry. Thereafter, the appellant was informed that his grievance was to be referred to the respondent for consideration.

[3]	Following this communication, the appellant was advised to go on an indefinite but paid leave. The respondent thereafter communicated its intention to retire the appellant stating that this was the consequence of a re-structuring and re-organisation exercise of the Civil Service Commission. The appellant in response, took issue with several irregularities surrounding his retirement. He argued that the notice to retire him was defective, not having been made by the head of the relevant department and that it was improper for the respondent to be both judge and jury in his case. The appellant contended that no satisfactory reasons had been proffered for retiring him. He also stated that the post that he occupied was still available and an advertisement had been flighted in order to have the same post filled. After considering the appellant’s representations, the respondent on 1 December 2014, retired the appellant from his employment.

Disgruntled at the respondent’s decision, the appellant lodged an application for review with the court a quo.

[4]	The appellant averred that it was gravely irregular for the respondent to insist on his early retirement while it was still seized with an unresolved grievance. He argued that his grievance ought to have been dealt with in terms of the grievance procedure laid out in s 55 of the Public Service Regulations, 2000 (‘the Regulations’). The appellant also submitted that the respondent had unilaterally varied his employment conditions of service pursuant to the lateral transfer. He further stated that the wrong authority was used to communicate the intention to retire him. Further, that there was partiality in the manner the respondent handled his grievance without regard to the dictates of the principles of natural justice.

[5]	In response, the respondent argued that the appellant had not been unfairly dismissed. It stated that the re-organisation was done in line with the provisions of the Constitution of Zimbabwe and the relevant regulations. The respondent claimed that although the appellant’s grievance was raised while the process of reorganisation was underway, it had been fully addressed. It further denied having unilaterally varied the appellant’s conditions of service stating that different ministries offered different benefits to its employees depending on the means of each ministry. The respondent also disputed the allegations of malice and bias stating that there were other employees similarly circumstanced. Finally, the respondent stated that it had the authority, at law, to institute the notice of intention to retire the appellant.

[6]	The court a quo dismissed the application and found that it was improper for the appellant to seek the respondent’s compliance with a provision that he himself flouted when he raised his grievance. The court accepted the respondent’s contention that an employee’s entitlements differ from Ministry to Ministry. It indicated that the letter of transfer made specific mention of salary and not allowances. Further, the court indicated that allowances were discretionary and were paid on the basis of a directive from the respondent and proof of entitlement. However, the appellant had not produced his telephone bills from the service provider to warrant a refund of that expense. The court also noted that the appellant had failed to show that the respondent had adequate resources to issue him with a personal issue vehicle. Further to that, the court highlighted the fact that the appellant had suffered no prejudice pursuant to the notice of retirement emanating from the Civil Service Commission instead of the head of the Ministry since the two could not be detached from each other. It also pronounced that the principles of justice were observed as the appellant was given time to make written representations. Finally, the court found that the appellant’s grievance had been fully addressed by the respondent.

[7]	Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds: -

1.	That the court a quo grossly erred and misdirected itself in failing to find as it                         ought to have done that the forced retirement of the appellant was premised on a disguised restructuring and reorganisation program of the Ministry of Industry and Commerce.

2.	The court a quo grossly erred and misdirected itself by failing to find as it ought to have done that the forced retirement of the appellant at the instance of the respondent was based on malice and bias stemming from a lawful grievance, the court grossly misdirected itself such misdirection amounting to an error of law.

3.	The court a quo erred and grossly misdirected itself when it failed to find as it ought to have done, that the retirement of the appellant at the instance of the respondent amounted to an unlawful labour practice especially when regard is had to the fact that the post which the appellant used to occupy still subsisted and had since been filled.

4.	The court a quo erred in finding that there were no unilateral variations of the conditions of employment for the respondent when he joined the Ministry of Industry and Commerce, when in effect there was a letter that confirmed this.

5.	The court a quo erred at law and grossly misdirected itself when it held that the appellant’s grievance had been dealt with and resolved, when the evidence on record and by the court’s own finding, the grievance had not been dealt with in terms of the applicable statutory i.e. s 55 of the Public Service Regulations, 2000.

The appellant’s grounds of appeal, in my view, raise the following issues for determination: -

Whether or not the appellant’s conditions of employment were unilaterally varied.

Whether or not the retirement of the appellant was lawful.

WHETHER OR NOT THE APPELLANT’S CONDITIONS OF EMPLOYMENT WERE UNILATERALLY VARIED.

[8]	The appellant avers that the respondent unilaterally varied his conditions of employment following his transfer to the Ministry of Industry and Commerce. The record shows an undertaking and unconditional promise by the respondent to maintain the appellant’s existing salary and salary scale. While the letter conveying his transfer made no specific reference to the appellant maintaining his existing benefits, the appellant argues that he nevertheless entertained a legitimate expectation of that being the case. It was on this basis that he formally protested at the unilateral variation of the terms of his employment, through a reduction in fuel and telephone benefits. He argued that since he had been laterally transferred from one Ministry to the other, he was entitled to receive exactly the same salary and benefits that he enjoyed while still in the former Ministry. He contended that a lateral transfer, by nature, does not envisage prejudice being visited upon the transferred employee. Further, that while the letter of transfer made no specific reference to the fact that he would receive the same benefits that he was already enjoying, it also did not indicate that the transfer would result in him forfeiting part of the benefits that he was already receiving.

[9] 	That the appellant was not to receive the same benefits in the Ministry of Industry and Commerce that he was receiving in the Ministry of Public Service, is not disputed. This is implicit in the following excerpt from the letter of 18 November 2013, signed by the Ministry’s Permanent Secretary: -

“As may have been explained to you by the Finance Director, I, as the Accounting Officer, am not able to guarantee you the $150,00 monthly airtime allowance and 500 litres monthly fuel allowance given lack of adequate disbursements from Treasury. Your request, which is what you were enjoying in your previous ministry, is way beyond our means in this Ministry.”

As is evident from the letter cited, the reduced benefits that the appellant was to receive were said to emanate from an alleged lack of adequate resources from Treasury. The respondent contended further that there were several reasons for it not to allude, in the appellant’s transfer letter, to the nature and level of allowances that would be paid to him upon transfer to the Ministry of Trade and Commerce. These were that: -

benefits paid to staff differed from Ministry to Ministry

different Ministries had separate votes under Treasury and benefits differed according to what a particular Ministry could offer

the type of allowances that the appellant sought were determined with the concurrence of the Minister of Finance and could be modified or withdrawn at the discretion of the accounting officers of respective Ministries

with respect to fuel, Circular No. 1/2012 on personal issue vehicles provided that monthly allocations for official and personal use were determined by Heads of Ministries.

The respondent, in view of these circumstances, accordingly denied that the appellant’s conditions of service were unilaterally varied. It submitted that the variation was occasioned by factors determined not by it, but through various Government policies, circulars and the exercise of discretion by the heads of different Ministries as outlined.

[10]	The court a quo was persuaded by the respondent’s 	submissions and stated as follows:

“The Public Service Regulations SI 1/2000 specify the following allowances: -

Travel expenses

Official travel using own vehicle

Subsistence

Acting and Responsibility

…

Allowances other than those specified in the regulations are discretionary. Applicant has not averred that there is a directive from the Civil Service Commission specifying the allowances he is claiming. He did not produce any proof of entitlement except that he was getting them in one Ministry. In my view Applicant would have had a basis for complaint if his salary was reduced”

I do not find any fault with the reasoning of the court a quo as outlined. While the law is settled that an employer cannot unilaterally alter the terms and conditions of an employee’s employment, the circumstances of this case are distinguishable (See Stewart & Ors v The Vice-Chancellor of the University of Zimbabwe & Anor). In casu the appellant stated that at the time of his transfer from the Ministry of the Public Service he was receiving an allocation of 500 litres of fuel and $150 worth of airtime per month, and expected to receive the same allocations “if not better,” on transfer to the Ministry of Trade and Commerce.

[11]	As already stated these benefits were not guaranteed at those levels, even in the Ministry of the Public Service itself, since in terms of the relevant Government regulations, policies or circulars, they were subject to variation at the discretion of the Head of any particular Ministry. The appellant himself, by alluding to the fact that the Ministry of Industry and Commerce could even in this respect allocate to him more than he was receiving in the Ministry of the Public Service, seems to acknowledge that the levels of the benefits that he sought, were not fixed. His grievance related to the quantum and not his entitlement to the benefits in question. He was not denied the latter, and to the extent that the entitlement itself may have been part of his conditions of employment, it was not varied, unilaterally or at all. On the other hand, the quantum of the benefits was not fixed, but was subject to factors such as availability of resources and variation at the discretion of the relevant heads of Ministries. To that extent it cannot in my view be contended, as the appellant does, that the variance in the levels of the benefits in question constituted a variation, unilateral or otherwise, of his conditions of employment.

[12]	The appellant’s fourth ground of appeal is accordingly devoid of merit and is hereby dismissed.

This finding in my view renders moot, the question of whether or not the appellant’s grievance with respect to the benefits in question, was properly determined by the respondent. The appellant, as is evident from the evidence before the court, did not challenge the various regulations, policies and circulars that regulated the calculation and implementation of the levels of benefits awarded to various grades of government employees.

WHETHER OR NOT THE RETIREMENT OF THE APPELLANT WAS 	LAWFUL.

[13]	The appellant’s main argument on appeal is that the respondent’s decision to retire him was motivated by malice and bias. He sets out in chronological order the events surrounding and leading up to his retirement and contends as follows in his heads of argument: -

“In light of the above humble submission, it is respectfully submitted that the conduct of the respondent was actuated by nothing other than malice itself. The action taken by the respondent, i.e. not to determine the grievance but proceeding to place the appellant on leave and ultimately decide to invoke provisions relating to early retirement of the appellant from its employment, shows that respondent was acting maliciously towards the appellant or malice can be inferred on the part of the respondent.” (my emphasis)

[14]	A closer look at the sequence of events in the process leading to the retirement of the appellant is pertinent. The appellant sets out the sequence as follows, starting from the time he assumed duty after transfer to the Ministry of Industry and Commerce: -

Having realised that the respondent was no longer paying out his salary and benefits upon transfer, the appellant wrote to the respondent (actually to the Ministry of Industry and Trade and Commerce) asserting his rights on 11 November 2013

The respondent (actually, the Ministry of Public Service, Labour and Social Welfare) replied to appellant’s correspondence dated 11 November 2013 wherein it confirmed that appellant was entitled to receive the benefits he was claiming;

Pursuant to the above, appellant then formally placed his grievance to the respondent on 14 November 2013.

On 15 November 2013, respondent then wrote to the Secretary of Industry and Commerce retracting the comments of the letter dated 11 November 2013, wherein respondent had confirmed that appellant was entitled to the benefits or allowances he was claiming.

On 18 November 2013 the respondent (sic) wrote to the appellant advising him that his grievance letter had been noted and that the grievance was being referred to the respondent.

Respondent wrote to the Secretary for Industry and Commerce acknowledging receipt of the appellant’s grievance and advised that they were now waiting for the outcome of the matter (in other words a determination on the grievance)

Instead of determining the appellant’s grievance, the respondent proceeded to place the appellant on indefinite leave. The decision to place appellant on leave was communicated via a letter dated 2 December 2013.

Appellant proceeded to complain about the decision to place him on unsolicited leave via his letter dated 9 January 2014.

In reaction to the grievance lodged and the complaint regarding the placement of the appellant on indefinite leave, the respondent proceeded to give appellant notice of its intention to put him into early forced retirement.  In that same letter dated 27 March 2014, the respondent invited the appellant to make his representations insofar as it related to the matter of his intended retirement….

Applicant complied with the invitation given to him by the respondent and he proceeded to submit cogent reasons why the respondent should not retire him ….

[15]	I find that there is substantial merit in the appellant’s submissions. The letter received by him from the Secretary to the Civil Service Commission dated 2 December 2013 read as follows: -

“CONDITIONS OF SERVICE FOLLOWING LATERAL TRANSFER; MR T. GATAWA: EC NO….: LEGAL ADVISOR: MINISTRY OF INDUSTRY AD COMMERCE

Reference is made to your memorandum dated 14 November 2013 and the subsequent minute from the Head of Ministry for Industry and Commerce referenced … dated 15 (should be 18) November 2013 in respect of the above subject matter.

You are hereby advised to proceed on paid leave with immediate effect until further notice. Whilst on paid leave, you will be entitled to airtime and fuel equivalent to levels being given to other Directors in the Ministry of Industry and Commerce.” (my emphasis)

[16]	As the letter indicates, the appellant was placed on forced leave after the grievance that he had raised with the Ministry of Industry and Commerce was referred to the respondent. The letter specifically referred to the memorandum by the appellant (raising the grievance concerning his benefits) and also to the subsequent minute on the same subject, from the Secretary of Industry and Commerce. However, without commenting on the grievances in question, the letter advised the appellant to proceed on leave, with full pay and benefits applicable to the Ministry to which he was transferred, ‘with immediate effect.’

The appellant therefore correctly notes that this letter proffered no reasons for his being placed on what was essentially forced leave.

[17]	According to the evidence on record the appellant is correct in his assertion that his written objection to being sent on forced leave with no explanation, elicited a response from the respondent, giving him notice that he was being retired from the Civil Service in terms of s 18(4)(e)(ii) of the Public Service Regulations 2000.  As indicated, he complied with the invitation in the same notice, to make written representations for the respondent’s consideration before it could make a final decision on the matter of his retirement.

[18]	Section 18(4) (e) (ii) of the Regulations provides that the respondent may retire an employee before he or she reaches retirement age:

“(e) owing to -

(i)  	the abolition of his post; or

(ii)	the reduction in or adjustment of the organization of a Ministry 			or other division of the Public Service”

[19]	Section 199(3) of the Constitution of Zimbabwe, 2013, also envisages the reorganisation of the respondent in the following manner: -

“an Act of Parliament must provide for the organisation, structure, regulation, discipline of members of the Civil Service.”

In addition to the circumstances that prompted the notice to the appellant of his impending retirement, which he contends were a further demonstration of the respondent’s bias and malice towards him, the appellant disputes that the requirements of para (ii) of s 18(4) (e) of the regulations were satisfied. He contends in this respect that no reduction in or adjustment of the organization of the Ministry of Commerce and Industry took place before his retirement. He further submits in relation to any alleged reduction in the Ministry that contrary to the respondent’s assertion, the position of Legal Officer that he occupied in the Ministry was never abolished. Instead, it was filled by another lawyer, a circumstance that the appellant submits was admitted by the respondent in its submissions before the court a quo.

[20]	It being a well-established principle of our law that he who alleges must prove, the appellant bore the onus of proving through evidence that there was no reduction or reorganisation of the Ministry of Commerce and Industry that necessitated his being retired from Government service. In his view the alleged reorganisation exercise was used as a smokescreen by the respondent to cover its unmerited retirement of him from employment. The appellant makes reference to the following submission made on behalf of the respondent in the court a quo, to support his assertion that the respondent effectively made an admission to the effect that his post was never abolished: -

“Same record is also on point on the reduction of Ministries from 33 to 24. By that time found it necessary not to have a Legal Officer in the Ministry of Industry and Commerce. Respondent had time to advertise the post against which Applicant was free to apply for (sic). Applicant is stating that position he was retired from, someone (was) appointed (sic). Applicant eligible to apply. Chose not to.”

While the assertion relating to the reduction in the number of Ministries as indicated may have been true, the part that makes reference to the re-advertisement of the post of Legal Advisor, previously held by the appellant, in my view corroborates the appellant’s position that the post from which he was retired was never abolished. It is trite that a formal admission made in pleadings, unless withdrawn is conclusive of the issue or facts admitted and is binding on the court (see Mining Industry Pension Fund v Dab Marketing (Private) Ltd).  The admission by the respondent that the post of legal officer occupied by the appellant before he was retired was not abolished in my view raises the suspicion that the decision to retire the appellant was not bona fide. The appellant contends that it was an afterthought on the part of the respondent, to aver that the post was only resuscitated after a realisation that the services of a legal officer were essential in the Ministry of Industry and Commerce. The appellant in my view, could very well be correct in this respect.

[21]	I am persuaded that, when all the circumstances surrounding and leading to, the appellant’s retirement from Government employment are considered together, a reasonable inference of bias, even malice on the part of the respondent, may properly be drawn.  It strikes one as curious that after the appellant registered his grievance with the respondent, he was immediately and with no explanation given, ordered to proceed on leave, albeit on full pay and some benefits. When the appellant protested against being sent on forced leave, the respondent’s response was to notify him that he was to be retired from service. To compound it all, the reason cited for retiring him, in particular, an alleged reduction in the organisation of the Ministry of Trade and Commerce, was not borne out by evidence on the ground. The appellant attached to his papers, a document compiled and signed on behalf the Ministry of Industry and Commerce by a person designated as ‘Legal Advisor’, the same post that he occupied before his retirement.  While all this process was playing out, the appellant received no assurance that the grievances that he had consistently raised, would be addressed. He was, instead, called upon to make written representations relating to his proposed retirement, for consideration by the respondent before a final decision on the matter was made. The final determination was then made to retire him with effect from 19 November 2014.

[22]	In Associated Newspapers of Zimbabwe (Pvt)Ltd & Anor v Diamond Insurance Co (Pvt) Ltd the court quoted with approval the case of City and Suburban Transport (Pty) Ltd v Local Board Road Transportation, Johannesburg 1932 WLD 100 at 106 where the test for determining the existence of bias was explained as follows:-

“The test appears to be whether the person challenged has so associated himself with one of the two opposing views that there is a real likelihood of bias or that a reasonable person would believe that he would be biased.”

[23]	This Court in the recent case of Refias Masuna v The State SC 98/19- stated as follows:

“The test for bias is settled under our law. All the authorities are agreed that the test is not a subjective one.  It is an objective test based on impressions of reasonable right-thinking people. In Leopard Rock Hotel Co (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S), 297 A KORSAH JA had occasion to remark thus: -

“A common theme which runs through the authorities is, therefore, that the test to be applied is an objective one.  One does not inquire into the mind of the person challenged to determine whether or not he was or would be actually biased.  Thus the character, professionalism, experience or ability as to make it unlikely, despite the existence of circumstances suggesting a probability of bias arising out of some conflict of interest, that he would yield to infamy, do not fall for consideration.”

[24]	Malice has been described in, “A Dictionary of Law” by the learned author Henry 	Campbell Black as: -

“a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken or “to seek or desire to injure”.”

[25]   Applying these tests to the circumstances of this case, I find that the whole process surrounding and leading to the appellant’s retirement from the Civil Service, smacked of a relentless resolve by the respondent, and with no good reason apparent from the record, to have the appellant removed from its service. If anything, the evidence seems to suggest that the appellant was treated in the manner that he was, for the simple but untenable reason that he dared to question what he perceived to have been an unfair reduction to his allowances. The apparent disregard, at every level of the process, of the appellant’s entitlement to an explanation for the prejudicial actions being taken against him in my view constituted a negation of the principles of transparency and fair play. The respondent itself submits in its heads of argument, that these principles connote openness, frankness, honesty and absence of bias, collusion, favouritism or any such unfavourable traits.

[26]	The respondent could not have failed to appreciate the fact that prejudice would be visited on the appellant consequent upon the loss of his employment. The post from which he was retired continued to exist, having subsequently been filled by another lawyer. One would not expect a Ministry or a division therein to be reduced in scope, through retiring officers and then replacing them with other people. It follows from this that the alleged reduction in the organisation of the Ministry of Commerce and Industry, did not constitute a valid basis for retiring the appellant from his employment.

The balance of probabilities, when all is said, clearly tilts in favour of the appellant. His application for a review of the respondent’s decision to retire him from the Civil Service ought to have been granted by the court a quo.

DISPOSITION

[27]	Despite the finding that his conditions of employment were not unilaterally varied by the respondent, the appellant has succeeded in the main part of his appeal. He has demonstrated that the decision by the respondent to retire him from employment was one from which a reasonable inference of bias or malice against him, could be drawn.

It was for the reasons outlined herein that the order referenced at the beginning of this judgment, was issued.

GARWE JA:			I agree

BHUNU JA:			I agree

Chambati Mataka & Makonese Attorneys at Law, appellant’s legal practitioners

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