Court name
Supreme Court of Zimbabwe
Case number
SC 15 of 2005
Civil Appeal 162 of 2004

City of Gweru v Munyari (62/04) (SC 15 of 2005, Civil Appeal 162 of 2004) [2005] ZWSC 15 (01 June 2005);

Law report citations
Media neutral citation
[2005] ZWSC 15



















Judgment
No. SC 15/05


Civil
Appeal No. 162/04












CITY OF GWERU v
JOSEPHAT MUNYARI








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA


HARARE,
FEBRUARY 1 & JUNE 2, 2005








A
M Gijima
, for the
appellant





The
Respondent in person








ZIYAMBI
JA: In accordance with its internal procedures the appellant
advertised for the post of Deputy Chief Security Officer.

Interviews were conducted on 6 September 1994, the respondent and one
Mashavare being among the interviewees. It is common cause
that the
respondent scored the highest points during the interview and he was
recommended by the panel for the post. Mashavare
scored the second
highest number of points.





In
keeping with the appellant’s procedures the recommendations and
results of the interviews were forwarded to the manager or
immediate
superior of the department concerned for final decision as to which
of the candidates should be appointed to the post.
The immediate
superior selected Mashavare. He was appointed to the post of Deputy
Chief Security Officer.





The
respondent was aggrieved by the appointment. He took the view that
having scored the highest points at the interview and having
been
recommended for the post by the panel, he was unfairly treated when
the appellant appointed a person less qualified for the
post than he
was. He lodged a complaint with his head of department and a
grievance panel was convened on 30 November 1994. The
panel ruled
against him. He appealed to the Management Committee which also
ruled against him on 1 February 1995. Not satisfied
with the
result, the respondent appealed to the General Purpose Community and
Services Manpower Committee on 25 April more than two
months later.
That committee upheld the previous decisions.





The
respondent approached the Minister of Local Government Rural and
Urban Development on 8 December 1995. He wrote a letter of
complaint. That Ministry, by letter dated 28 February 1997,
referred the matter to the Ministry of Public Service Labour and
Social
Welfare for adjudication.





The
Labour Relations Officer gave a determination on 4 March 1999. He
found that the dispute was prescribed since it arose in
1994 and
should have been reported within 180 days. (See s 94 (1) (b) of the
Labour Relations Act [Chapter 28:01] (now the Labour
Act)). He
dismissed the application. The respondent appealed to the Senior
Labour Relations Officer who confirmed the determination
of the
Labour Relations Officer in the following words:-





“The
glaring truth about this matter is that it is as a matter of fact
prescribed. Accordingly the Labour Relations Officer was correct
in
dismissing the matter on those grounds. In the circumstance, I find
no convincing arguments from Appellant’s grounds of appeal
that
could lead to a different decision.






Even
if the matter was to be entertained and determined on its merits it
is highly improbable that the decision would be in his favour
for the
following reasons.





Firstly,
the matter is one where the Labour Relations Officer has no
jurisdiction over. Who to promote and who not to promote is
entirely the discretion of the employer. Apart from oral interview
results the employer has many other factors to consider before
promoting anyone, working relationships being one of them.






Secondly, therefore, the matter
does not need the intervention of a third part, (
sic)
it is purely an in house matter, which was adequately dealt with, by
the grievance panel on 30 November 1994, the Management Committee
on
1 February 1995, the General Purpose Community and Services Manpower
Committee on 25 April 1995 and the Ministry of Local Government.






Apparently,
irrespective of volumes of documents attached to this matter, none of
them carries appellant’s prayer. It is not known
how he wants the
matter redressed apart from saying that he wants the matter solved by
City of Gweru. While on the other hand,
City of Gweru argues that
the matter was dealt with and concluded on 25 April 1995.






It is unfortunate that appellant
lost at all stages but feels that, simply because the matter was not
decided in his favour, justice
was not done to it (
sic).






In
any case, however, because of prescription the matter cannot be
entertained by a Labour Relations Officer or a Senior Labour
Relations
Officer. In the circumstances the matter is hereby
dismissed. Accordingly the determination of the Labour Relations
Officer is
hereby confirmed”.






Undaunted by this the respondent
appealed to the Labour Relations Tribunal (now the Labour Court).
This time he met with some measure
of success. The Labour Court
ignored the issue of prescription, and found that the appellant had
acted unfairly in preferring Mashavare
over the respondent. The
Labour Court set aside the promotion of Mashavare and remitted the
matter back to the council for setting
up a fresh and independent
panel to conduct interviews for the post. The judgment was given on
29 April 2004 close to 10 years
after the event.





It
is against this judgment that the appellant appeals.






The main contention advanced by
Mr
Gijima for
the appellant is that the learned President of the Labour Court erred
in adjudicating upon an alleged unfair labour practice or
dispute
which had prescribed in terms of s 94 of the then Labour Relations
Act. The alleged unfair labour practice having occurred
in 1994 was
only referred to the Labour Relations Officer in 1998 long after the
180 days prescribed by s 94 of the Act had lapsed.





The
appellant’s contention is of course correct. S 94 of the Act
before its amendment by the s 31 of the Labour Relations Act
No. 17
of 2002 provided as follows:





Prescription
of disputes



(1) Subject to subsection (2),
after the 1
st
January, 1993, no labour relations officer shall entertain any
dispute or unfair labour practice which-







(a) arose before 1st
January, 1993, unless it is referred to a labour relations officer
within one hundred and eighty days from 1
st
January, 1993, and any debts arising therefrom have not been
prescribed in terms of the Prescription Act [
Chapter
8:11
];







(b) arises after 1st
January, 1993, unless it is referred to a labour relations officer
within one hundred and eighty days from the date when such dispute
or
unfair labour practice first arose.






(2) Subsection (1) shall not
apply to an unfair labour practice which is continuing at the time it
is referred to or comes to the
attention of a labour relations
officer.





(3) For
the purpose of paragraph (h) of subsection (1), a dispute or unfair
labour practice shall be deemed to have first arisen on
the date
when-






(a) the acts or omissions forming
the subject of the dispute or unfair labour practice first occurred;
or





(b) the
party wishing to refer the dispute or unfair labour practice to the
labour relations officer first became aware of the acts
or omissions
referred to in paragraph (a), if such party cannot reasonably be
expected to have known of such acts or omissions at
the date when
they first occurred.







The Labour Court got it wrong.
It had no jurisdiction to entertain the matter which had long
prescribed. On this ground the appeal
succeeds.






The alternative contention
advanced by Mr
Gijima
was that the learned President of the Labour Court erred in finding
that the appellant’s conduct amounted to an unfair labour practice.





It
is common cause that the decision not to promote the respondent was
reviewed and upheld at various times by the Grievance Panel
convened
by the respondent’s head of department, the Management Committee
and the General Purpose Community and Services Manpower
Committee.
There is no allegation or evidence that any of these bodies acted
partially or improperly. The sole contention advanced
by the
appellant was that he was entitled to the promotion because he scored
the highest points at the interview and was recommended
for the post
by the panel who placed Mashavare in the second place.





As the
Senior Labour Relations Officer found, the decision to promote or not
to promote lies within the discretion of the employer.
Indeed
clause 7 of the Conditions of Service of the appellant which is
applicable to all its employees, provides that:-






“No
person may claim appointment to the fixed establishment as a right by
reason of fulfilment of the qualifying conditions”.









In terms of these conditions the
respondent has no right to claim a promotion or appointment.
Promotion is the province of the employer
who is not obliged to
promote the most suitable person for the job and failure to promote
the respondent was not an unfair labour
practice.





The
respondent argued that his appointment was not made by the Management
Team but by a Head of Department in violation of the Conditions
of
Service. However although clause 3 states that :





“An
appointment, transfer or promotion to a post within grade 11 to 7
shall be made by the Management Team”.








Clause
4 contains the proviso that:








“… The
employer reserves the right to add to, subtract or in any other way
amend the delegation conferred in clauses 3 and 4".








The
appellant was empowered by this clause to delegate that task to any
person of its choice. Accordingly, no valid ground of complaint
arises from the fact that the Head of Department and not the
Management Team made the promotion.





For
the above reasons the appeal is allowed with costs.





CHIDYAUSIKU
CJ: I agree.





MALABA
JA: I agree.





Danziger
& Partners
,
appellant's legal practitioners