SAGANDIRA v MAKONI RURAL DISTRICT COUNCIL 2014 (2) ZLR 356 (S)

Flynote

Employment — employee — transfer of — when employer entitled to transfer c employee — transfer as a punitive measure — only lawful if employee found guilty of misconduct following proper disciplinary proceedings

Headnote

The appellant was employed by a rural district council, and was stationed in the town of Rusape, where her family also had a business. She was married and had dependent children. There had been a history of absenteeism on her part, and eventually the council told her that she was to be transferred to a small mining village some 50 km away. Her duties there were not specified. She did not go, and was charged with disobedience to a lawful order and dismissed. Her appeals to an arbitrator E and to the Labour Court failed. On appeal to the Supreme Court, she argued that the order to transfer was punitive and therefore not lawful; that she was not consulted before the decision to transfer her was made; and that the council's chief executive officer was an interested party: he was the complainant, charged the appellant, set the matter down, prosecuted and chaired the meeting before finding the appellant guilty of misconduct, in violation of the nemo judex principle.

Held, that at common law, an employer has the right to unilaterally vary the terms of employment, such as the duties being done by the employee and the location of work or department. This may be necessary, inter alia, to re-organise the operations of the employer or to facilitate disciplinaryinvestigations, provided always that such variation is not substantially different from the contract job description or does not result in the substantial downgrading of the status and dignity of the employee or is in breach of a legitimate expectation of the employee. However, an employer, whatever the circumstances, has no right to invoke a transfer as a punitive measure outside of the disciplinary framework, although a transfer can be ordered as part of the penalty imposed on an employee found guilty of misconduct. Once the respondent had formed the opinion that the appellant was misconducting herself, a disciplinary hearing should have been held to determine whether she was in fact guilty. Whilst the appellant admitted being absent on the occasions cited in the correspondence, she never admitted at any stage that she did not have a lawful excuse. If it was found that the appellant had no lawful excuse to be absent, she could have, as part of the penalty, been transferred to any other department of the appellant. In proceeding to transfer the appellant in the manner it did, the respondent fell foul of the audi alteram partem principle. It found the appellant culpable without holding any disciplinary proceedings and in the result imposed, as a penalty, an order that the appellant transfers to a place some fifty kilometres away where transport was difficult. The inference that this transfer was punitive, or intended to be a punishment, was inescapable.

Held, further, that whilst transfers effected in the ordinary course of operations are appropriate, transfers that are punitive, based purely on perceived misconduct on the part of the employee, are not acceptable as they are unlawful. A punitive measure can only be predicated on a proper finding of culpability following proper disciplinary proceedings.