Court name
Supreme Court of Zimbabwe
Case number
SC 30 of 2008
Civil Appeal 73 of 2007

Gurava v Traffic Safety Council of Zimbabwe (SC 30 of 2008, Civil Appeal 73 of 2007) [2009] ZWSC 30 (26 January 2009);

Law report citations
Media neutral citation
[2009] ZWSC 30




REPORTABLE ZLR (24)











Judgment
No. SC 30/08


Civil
Appeal No. 73/07








DANAI
GURUVA v TRAFFIC SAFETY COUNCIL OF ZIMBABWE








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, CHEDA JA & GWAUNZA JA


HARARE,
JANUARY 21, 2008 & JANUARY 27, 2009









The appellant in person



J Muchada, for the respondent









CHEDA JA: The appellant is employed by the Traffic Safety
Council of Zimbabwe as a Regional Manager. He was based at their

Gweru Office from where he was transferred to the Masvingo Office.







The dispute which led to this case arose from his lateral transfer
from Gweru to Masvingo. On 14 November 2003 the respondent’s

Deputy Director, Finance and Administration, wrote a memorandum to
the appellant advising him that he is transferred to Masvingo
on a
lateral transfer with effect from 1January 2004 as result
of a meeting which had been held by the Directorate of the respondent
on 10 November 2003.







Reasons for the transfer were given in the memorandum as follows:




  1. Training of managers through job rotation and enrichment.



  2. That the Masvingo Office was performing better than the Gweru Office
    though the Masvingo Office was apparently smaller.



  3. That the transfer had been necessitated by a thorough consideration
    of the likely impact on production and consequent benefits
    thereto.








The appellant wrote back to the Director of Finance making his
submissions against the transfer. The reasons that he gave were

personal. He requested that the transfer to Masvingo be put on hold
but did not say for how long.







It is common cause that after the appellant had made his submissions
a meeting of the Directorate was held on Wednesday 19 November
2003
to deliberate on the representations made by the appellant.







On 20 November 2003 the Deputy Director wrote to the appellant
advising, among other things as follows:



“The directorate held a meeting at 11.00 hrs to deliberate on the
issues on Wednesday 19 November 2003. We sympathise with the

personal circumstances in which you are. Also we note that you are
doing some publications concerning Traffic Safety work which
could be
made easier in Gweru. Nevertheless, the directorate realizes that
each of us, forty seven (47) employees in all have
different personal
circumstances, some of them could be much more taxing than yours.
The directorate considers each case on its
own merits but guided by
the fact that the individual needs and goals are subordinate to those
of Traffic safety Council.”







The letter ended with the following statement:



“Having made a thorough consideration of your submissions, the
directorate resolves that the earlier decision to transfer you
to
Masvingo with effect from 1 January 2004 still stands.”







On 27 November 2003 the appellant wrote a long letter to the
respondent appealing against the decision to transfer him to Masvingo

and asking that it be reversed. He did not succeed. He took the
matter to the Labour Relations Office alleging victimization
and
unfair transfer.







The Labour Officer referred the matter to Arbitration. The
arbitrator held that the respondent had not observed the dictates
of
the audi alteram partem rule and declared that the transfer
was unlawful and should be reversed.







The Traffic Safety Council of Zimbabwe appealed against that
decision at the Labour Court. The Labour Court upheld the appeal
and
confirmed the decision to transfer the appellant.







The appellant now appeals against the decision of the Labour Court.
The appellant’s grounds of appeal are as follows:




  1. The Labour Court made a total error of law in its interpretation of
    clause 8.5 of the Traffic Safety Council of Zimbabwe’s
    conditions
    of service as regards the transfer of employees.



  2. The Labour Court incorrectly interpreted the audi alteram partem
    principle and therefore wrongly applied the doctrine on finding that
    it was observed by the respondent.



  3. The Labour Court erred in law on finding that my legitimate
    expectation to be heard was fulfilled by the respondent.








The appellant does not dispute the contents of the letter addressed
to him on 20 November 2003. His contention is that the original

decision of 10 November 2003 should never have been made without him
being granted a hearing. He referred this Court to the respondent’s

conditions of service, and to the case of Taylor v Minister of
Higher Education & Anor
1996(2) ZLR 772(s).







It is conceded and rightly so, by the respondent, that the appellant
should have been granted a hearing before the decision to
transfer
him was made. Indeed, that is the principle laid down in Taylor’s
case
.







The appellant’s attitude in his submissions is that once that
decision was unlawful it should be set aside. If the matter had

ended there with that decision made in that manner I would have no
hesitation in holding that it was improper, to handle the transfer
in
that manner although declaring it unlawful would remain an arguable
issue depending on the circumstances of the case.







However, that is not the position in this case. To begin with, the
appellant made submissions, detailed submissions, in writing,
against
the transfer. As a result, the respondent’s directorate held a
meeting to deliberate on his submissions. It is not
as if, the
respondent refused to hear him.







Can it be said that once the appellant made representations the
employer should necessarily have made a different decision? I
do not
believe that to be the position and the appellant cannot say that is
the position either.







Secondly it has not been shown that the respondent made its original
decision on the basis of grounds which have since been proved
to be
incorrect. It was still open to the respondent to arrive at the same
decision even after hearing the appellant.







It must be accepted that the right to transfer an employee from one
place to another is the prerogative of the employer. It is
the
employer who knows better where the services of an employee are
required. The employer’s discretion in determining which
employee
should be transferred and to which point of the employer’s
operations is not to be readily interfered with except for
good cause
shown.







Good cause in the circumstances, while not easy to define, would
include such matters as unfounded allegations, victimization of
the
employee and any action taken to disadvantage the employee.







The reasons for transferring the appellant were given in its very
first correspondence. It is not as if the reasons were made
to
counter the appellant’s objections. Even if the reasons had not
been given in the first correspondence to him, the reasons
would
still be valid as long as they are genuine.







The employee who undertakes to work for an employer whose business is
carried out at different places takes the risk of being sent
to
perform services for the employer where ever such services are
required unless the employment contract stipulates that he is
to be
employed and remain at a specific place only. See Ngema Chule v
Minister of Justice:Kwazulu & Anor
1992(4) SA 349.







While the respondent may have erred in not giving the appellant a
hearing in the very first place, I am satisfied that since the

respondent did not compel the appellant to go on transfer before he
was heard, but deliberated on the issue before re-affirming
its
previous decision the requirement of the audi alteram partem
rule was complied with.







There is nothing in the Labour Court’s judgment which points at a
wrong interpretation of clause 8:5 to 8:5.3. of the appellant’s

conditions of service. That clause deals with transfer costs and it
is not the appellant’s case that he was denied such costs.
That
ground of appeal is baseless.







Taylor’s case which appellant relied on in most of his
submissions, while emphasizing the need for an officer to be heard
before transfer, cannot
be said to set the precedent that a decision
made after the officer has complained must necessarily be different.
Further to that,
in Taylor’s case there was an allegation of
victimization, and there was no indication that after he had
complained there was any further consideration
of the matter. He had
also asked for reasons for the transfer and they were never supplied.



The court a quo in Taylor’s case had interpreted the
phrase “without his consent” in the Regulations as meaning that
the employee had no right to be heard,







In the case before this Court it is my view that although the
employee has a right to be heard, and to make representation against

the transfer, the final decision still lies with the employer.







Once it is shown that the employer gave consideration to the need to
transfer an employee and gave that employee a hearing, the
employer’s
decision cannot be held to be improper.







In Taylor’s case the appeal court went further and pointed
out that in some cases an employer can still transfer an employee
without giving him
or her a hearing, depending on the special
circumstances of the case and that it would be unworkable if every
employee were to
be consulted before a transfer or decision is made.







In conclusion, I am satisfied that even if the appellant in this case
had not been given a hearing when the decision to transfer
him was
first made, once he complained and the directorate met and
deliberated on the matter, his legitimate expectation to be
heard was
met, the audi alteram partem rule was complied with and the
decision to transfer him, cannot be set aside.







In the result, the appeal is dismissed with costs.



















SANDURA JA: I agree



















GWAUNZA JA: I agree















Dube, Manikai & Hwacha, respondent’s legal practitioners