Dealing with worker transfers

as an internal sales person. Zimtile was bought by PG Industries and Nyawanza was transferred from Zimtile Harare to PG Building Suppliers Telford through a letter dated October 7, 2009.
Nyawanza refused to report to PG and as a result was charged with violating Section 5 of Zimtile Code of Conduct. The charge was willful disobedience to a lawful order given by the superior or employer.
The Code also states that this amount to insubordination or disrespect for a person in authority shown by action or words or demeanour. Nyawanza was also charged with failure to comply with standing instructions or to follow established procedures.
He appeared before a disciplinary hearing on October 30, 2009, but walked out of the hearing, which continued without him. Nyawanza was found guilty as charged and given a final written warning.
The hearing ordered him to take up the post at PG Telford Branch. On November 5, 2009, the managing director wrote to Nyawanza instructing him to report to the Telford branch as per the disciplinary hearing verdict.
Nyawanza appealed to the MD who upheld findings of the disciplinary committee. After the verdict, Nyawanza insisted that he was not going to PG.
On December 8, 2009, a letter was written to Nyawanza to show cause why disciplinary proceedings should not be taken against him when he failed to report to PG.
He was again charged with wilful disobedience to a lawful order. A hearing on December 16, 2009 found him guilty and imposed a dismissal penalty.
Nyawanza then sought recourse through the Labour Court. He argued that Zimtile erred in denying him a right to representation and the right to be heard.
He further argued that Zimtile erred in proceeding with a second hearing on a matter, which was the subject of appeal at the Ministry of Labour.
Nyawanza submitted that Zimtile preferred misconduct charges where there was no contract.
He said the company made an offer of employment, which he did not take. It was Nyawanza’s contention that his lateral transfer from Zimtile to PG Building Suppliers fell outside his contract of employment.
Therefore, Zimtile had no right to forcibly transfer him to PG whilst on the other hand calling for early retirements and voluntary retrenchments.
Nyawanza lamented that Zimtile had withheld his November and December salaries when he was reporting for duty. Finally, he prayed for reinstatement without loss of salary or benefits.
However, facts on the ground were that Nyawanza brought a legal practitioner from the Legal Aid Directorate on the date of hearing. The chairman ruled that legal practitioners were not allowed in disciplinary hearings, according to the Zimtile Code of Conduct.
It is clear that in terms of the Code legal practitioners may only advise. They are not allowed to make representations during hearing. In terms of Section 8 of the Code, either worker’s committee member or fellow employee could represent an employee.
“The Code recognise that it is the right of every employee charged . . . to seek advice from whoever he wishes.
“However, during the actual hearing legal practitioners or any outside representation will not be allowed to be present,” reads the Code.  
Had Nyawanza gone through the Code, he could have realised this. Such exclusion is permissible in the law as the committee is made up of non-lawyers.
The idea is to keep proceedings as simple as possible because lawyers tend to complicate matters.
It was clear that Nyawanza had erroneously referred the matter to a Labour Officer. In his papers, he had conceded that he had adopted a wrong procedure.
Zimtile was within its right in preferring charges on Nyawanza and proceeding to hear such charges.
It was clear the Zimtile had offered him a certain post, which offer he turned down.
No sanction exists from such refusal. On the other hand, Zimtile admitted that Nyawanza was called in for an interview, was successful and offered the post.
However, he turned down the offer and was later transferred to PG Industries, which transfer was totally different from the initial offer.
Once Nyawanza was so transferred, he had to move to that department.
From the above scenario, it is clear that initially Nyawanza attended promotional interviews and was successful. When he was offered the post, he turned it down and was later transferred.
Nyawanza believed that he had a contract with Zimtile, which contract did not provide for transfer to any other company.
The question is: Did Nyawanza have a right in law to refuse such a transfer? It was common cause that Zimtile employed him in 1996.
It is also common cause that Zimtile was bought by PG Industries, and became its subsidiary.
Section 16 of the Labour Act deals with the rights of employees on transfer of undertaking.
It provides: “Subject to this section, whenever any undertaking in which any persons are employed is alienated or transferred in any way . . . the employment of such persons shall be deemed to be transferred to the transferee of the undertaking.
“This is on terms and conditions which are not less favourable than those which applied immediately before the transfer.”
It is no doubt that Nyawanza became an employee of the new owners of Zimtile, which is PG Industries.
He became obliged to follow any lawful instructions from such employer. Once Nyawanza was ordered to report for duty at PG Industries, he became obliged to comply.
However, he failed to comply even after disciplinary measures had been brought against him.
The instruction for Nyawanza to report to PG Industries was a lawful instruction.
It is not in dispute that such instruction was not complied with by Nyawanza.
In the result, Labour Court president Ms Loice Matanda-Moyo found no merit in Nyawanza’s appeal and dismissed it.