adminServcor Private Limited dismissed Tarisai Muchenjeri following a hearing into misconduct charges.
Muchenjeri had been asked to transfer to Selous from Harare after he had spend about two months at Servcor headquarters awaiting an opening for him at one of the company’s outlets.
Before an in-depth analysis of the law and the facts pertaining to this case, it is pertinent to bear in mind the following facts:
Firstly, it is important to note that the letters requiring Muchenjeri to transfer to Selous gave him no more than three days notice prior for him to comply with the order. This is so because a letter delivered to him dated February 8, 2011 indicated that with effect from February 14, 2011 he had to be based at Selous.
Even the subsequent letter dated February 10 still maintained that Muchenjeri had to report to Selous by February 14.
On February 17, another letter on the same subject was written to Muchenjeri, this time indicating that he has to report to Selous without fail by February 21, 2011. All these letters intimated that transport for his person, meals and accommodation were going to be met by Servcor.
What is critical about the time frame is whether it can be construed that Muchenjeri willfully disobeyed a lawful order given in the circumstances which have been explained.
It is clear judging from the chronology of the letters to Muchenjeri that the only notice period of transfer that he received was a paltry three days.
Servcor did not concede that Muchenjeri was a family man with kids going to school who were based in Harare. It, however, argued that he was lucky to have a job in the current state of the economy where unemployment was rampant. This meant that Muchenjeri’s personal circumstances were secondary to the dictates or his employer’s concerns.
While it is acceptable that indeed duty comes first, it would be socially unjust and legally undesirable if employers were to wantonly disregard personal considerations attendant to their employees.
To fail to give due regard to such would be a receipt for chaos and disaster if that were to be left unchecked.
On the same note, it would also be improper for workers to hold employers at ransom when occasions arose for them to give of what was required of them by employment contracts they enter into.
In this case, Servcor argued that the transfer was warranted because no production was being realised from Muchenjeri being idle at the head office doing nothing.
Surely, his reassignment where there was need, cannot be said to have been blemished.
Being that as it may, the question still remains whether it was reasonable for Servcor to expect him to relocate to Selous within three days.
Such an expectation was grossly unreasonable especially if one looks it from Servcor’s own admission that it would cater for his needs as an individual only.
It is thus clear that for the company to turn a blind eye to the fact that Muchenjeri had a family for who he had to make arrangements before relocation was not fair.
If Servcor genuinely needed to transfer him, it was imperative to give Muchenjeri adequate notice to put his personal and family matters in order before relocation.
The fact that when he appealed he did not specifically raise the issue of time does not absolve the company from dealing with the transfer in a diligent and fair manner. If then after meeting all required standards of notice Muchenjeri refused to go, only then would the consequences of disciplinary action have become unavoidable.
The fact that the right to transfer an employee rests with the employer is without question. Even the cases quoted by both parties put that position clearly.
Of particular note is the case of Danai Guruva versus Traffic Safety Council of Zimbabwe SC 30/08, which also quoted the case of Taylor versus Minister of Higher Education 1996 (2) ZLR 272 extensively.
The following quotes by Cheda JA in the judgment are pertinent for the conclusion of the instant case.
“ . . . 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 operation 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, victimisation of the employee and any action taken to disadvantage the employee.”
On the fact at hand, it is clear that Servcor had a genuine need for Muchenjeri’s services given the fact that he was now just idle and getting paid for no work.
The Selous posting was indeed within the company’s powers as it was where it felt that his services were needed. Such a transfer was not in conflict with the contract of Muchenjeri’s employment.
The Guruva case says such discretion should not be readily interfered with. It also gives examples of when interference may be warranted. In the instant case, the notice period of three days can disadvantage the employee.
As a result therefore, it is satisfactory that Servcor did not exercise its discretion properly when it sought to have Muchenjeri transfer to Selous within three days.
Since the transfer was done irregularly, Muchenjeri’s appeal to the Labour Court should be allowed and Servcor ordered to effect the transfer in the legally and procedurally correct manner.
In the result, Labour Court president Ms Lilian Kudya ruled that this therefore meant that Muchenjeri reverted to his position while Servcor regularised his transfer.
If then he did not comply after the company had done it regularly, then the consequences of misconduct charges and possible dismissal would then follow suit.
Ms Kudya said that if Servco was no longer keen on having Muchenjeri back, it could pay him damages in lieu of reinstatement to assuage his premature loss of employment.
Online Reporter