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favour.
Council appealed to the Labour Court arguing that the arbitrator’s award to promote Mr Terrence Mumvuri to a non-existent vacant post was so unreasonable and irrational.
It further argued that the issue of promotion was the prerogative of the employer, who can even promote a person with lower qualifications.
Labour Court president, Ms Loice Matanda-Moyo, said Section 5 of the Labour Act (Chapter 28:01) provides for protection of employees against any form of discrimination.
Section 5 (4) gives the employee who has been discriminated against the right to sue for damages or for an order directing the employer to redress the contravention, including an order to employ such employee in any capacity.
Ms Matanda-Moyo said: “It shall not be a defence to the employer that the vacancy has already been filled and in such circumstances the employer would have to dismiss or terminate the services of any other employee who would have been engaged.
“From the above Section, it is clear that before promoting any employee who has been discriminated against during the promotion procedure, the post need not be vacant.
“A court can still promote such an employee to a filled vacancy and it would be up to the employer to deal with any other employee in that position.”
Council argued that there was no evidence that Mr Mumvuri was discriminated against. It said he was short listed for interviews and failed to get the posts as they required experience, which Mr Mumvuri did not have.
The local authority pointed out that acquiring a Master of Business Administration degree in itself was not a pre-requisite for promotion. During the arbitration process, the arbitrator requested council to submit the advertisements and details of successful candidates in all interviews, but it failed to produce such documents. The arbitrator wanted to satisfy himself that Mr Mumvuri was not discriminated against but failed to meet the set criteria.
Ms Matanda-Moyo said the arbitrator had every right to proceed to make a determination without such information.
“Appellant (City of Harare) was given a chance to present the evidence in rebuttal of respondent’s claim, but chose not to exercise such right. The arbitrator’s ruling cannot be faulted.
“It is clear that upon attainment of higher qualifications, an employee could be advanced to a higher grade. Such a provision encourages employees to continue to further their education,” said Ms Matanda-Moyo.
She said council had failed to show that the post was non-existent and dismissed its appeal with costs.
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