No. SC 15/05
Appeal No. 162/04
CITY OF GWERU v
COURT OF ZIMBABWE
CJ, ZIYAMBI JA & MALABA JA
FEBRUARY 1 & JUNE 2, 2005
M Gijima, for the
Respondent in person
JA: In accordance with its internal procedures the appellant
advertised for the post of Deputy Chief Security Officer.
Interviews were conducted on 6 September 1994, the respondent and one
Mashavare being among the interviewees. It is common cause
respondent scored the highest points during the interview and he was
recommended by the panel for the post. Mashavare
scored the second
highest number of points.
keeping with the appellants procedures the recommendations and
results of the interviews were forwarded to the manager or
superior of the department concerned for final decision as to which
of the candidates should be appointed to the post.
superior selected Mashavare. He was appointed to the post of Deputy
Chief Security Officer.
respondent was aggrieved by the appointment. He took the view that
having scored the highest points at the interview and having
recommended for the post by the panel, he was unfairly treated when
the appellant appointed a person less qualified for the
post than he
was. He lodged a complaint with his head of department and a
grievance panel was convened on 30 November 1994. The
against him. He appealed to the Management Committee which also
ruled against him on 1 February 1995. Not satisfied
result, the respondent appealed to the General Purpose Community and
Services Manpower Committee on 25 April more than two
That committee upheld the previous decisions.
respondent approached the Minister of Local Government Rural and
Urban Development on 8 December 1995. He wrote a letter of
complaint. That Ministry, by letter dated 28 February 1997,
referred the matter to the Ministry of Public Service Labour and
Welfare for adjudication.
Labour Relations Officer gave a determination on 4 March 1999. He
found that the dispute was prescribed since it arose in
should have been reported within 180 days. (See s 94 (1) (b) of the
Labour Relations Act [Chapter 28:01] (now the Labour
dismissed the application. The respondent appealed to the Senior
Labour Relations Officer who confirmed the determination
Labour Relations Officer in the following words:-
glaring truth about this matter is that it is as a matter of fact
prescribed. Accordingly the Labour Relations Officer was correct
dismissing the matter on those grounds. In the circumstance, I find
no convincing arguments from Appellants grounds of appeal
could lead to a different decision.
if the matter was to be entertained and determined on its merits it
is highly improbable that the decision would be in his favour
the matter is one where the Labour Relations Officer has no
jurisdiction over. Who to promote and who not to promote is
entirely the discretion of the employer. Apart from oral interview
results the employer has many other factors to consider before
promoting anyone, working relationships being one of them.
Secondly, therefore, the matter
does not need the intervention of a third part, (sic)
it is purely an in house matter, which was adequately dealt with, by
the grievance panel on 30 November 1994, the Management Committee
1 February 1995, the General Purpose Community and Services Manpower
Committee on 25 April 1995 and the Ministry of Local Government.
irrespective of volumes of documents attached to this matter, none of
them carries appellants prayer. It is not known
how he wants the
matter redressed apart from saying that he wants the matter solved by
City of Gweru. While on the other hand,
City of Gweru argues that
the matter was dealt with and concluded on 25 April 1995.
It is unfortunate that appellant
lost at all stages but feels that, simply because the matter was not
decided in his favour, justice
was not done to it (sic).
any case, however, because of prescription the matter cannot be
entertained by a Labour Relations Officer or a Senior Labour
Officer. In the circumstances the matter is hereby
dismissed. Accordingly the determination of the Labour Relations
Undaunted by this the respondent
appealed to the Labour Relations Tribunal (now the Labour Court).
This time he met with some measure
of success. The Labour Court
ignored the issue of prescription, and found that the appellant had
acted unfairly in preferring Mashavare
over the respondent. The
Labour Court set aside the promotion of Mashavare and remitted the
matter back to the council for setting
up a fresh and independent
panel to conduct interviews for the post. The judgment was given on
29 April 2004 close to 10 years
after the event.
is against this judgment that the appellant appeals.
The main contention advanced by
Mr Gijima for
the appellant is that the learned President of the Labour Court erred
in adjudicating upon an alleged unfair labour practice or
which had prescribed in terms of s 94 of the then Labour Relations
Act. The alleged unfair labour practice having occurred
in 1994 was
only referred to the Labour Relations Officer in 1998 long after the
180 days prescribed by s 94 of the Act had lapsed.
appellants contention is of course correct. S 94 of the Act
before its amendment by the s 31 of the Labour Relations Act
of 2002 provided as follows:
(1) Subject to subsection (2),
after the 1st
January, 1993, no labour relations officer shall entertain any
dispute or unfair labour practice which-
(a) arose before 1st
January, 1993, unless it is referred to a labour relations officer
within one hundred and eighty days from 1st
January, 1993, and any debts arising therefrom have not been
prescribed in terms of the Prescription Act [Chapter
(b) arises after 1st
January, 1993, unless it is referred to a labour relations officer
within one hundred and eighty days from the date when such dispute
unfair labour practice first arose.
(2) Subsection (1) shall not
apply to an unfair labour practice which is continuing at the time it
is referred to or comes to the
attention of a labour relations
the purpose of paragraph (h) of subsection (1), a dispute or unfair
labour practice shall be deemed to have first arisen on
(a) the acts or omissions forming
the subject of the dispute or unfair labour practice first occurred;
party wishing to refer the dispute or unfair labour practice to the
labour relations officer first became aware of the acts
referred to in paragraph (a), if such party cannot reasonably be
expected to have known of such acts or omissions at
the date when
they first occurred.
The Labour Court got it wrong.
It had no jurisdiction to entertain the matter which had long
prescribed. On this ground the appeal
The alternative contention
advanced by Mr Gijima
was that the learned President of the Labour Court erred in finding
that the appellants conduct amounted to an unfair labour practice.
is common cause that the decision not to promote the respondent was
reviewed and upheld at various times by the Grievance Panel
by the respondents head of department, the Management Committee
and the General Purpose Community and Services Manpower
There is no allegation or evidence that any of these bodies acted
partially or improperly. The sole contention advanced
appellant was that he was entitled to the promotion because he scored
the highest points at the interview and was recommended
for the post
by the panel who placed Mashavare in the second place.
Senior Labour Relations Officer found, the decision to promote or not
to promote lies within the discretion of the employer.
clause 7 of the Conditions of Service of the appellant which is
applicable to all its employees, provides that:-
person may claim appointment to the fixed establishment as a right by
reason of fulfilment of the qualifying conditions.
In terms of these conditions the
respondent has no right to claim a promotion or appointment.
Promotion is the province of the employer
who is not obliged to
promote the most suitable person for the job and failure to promote
the respondent was not an unfair labour
respondent argued that his appointment was not made by the Management
Team but by a Head of Department in violation of the Conditions
Service. However although clause 3 states that :
appointment, transfer or promotion to a post within grade 11 to 7
shall be made by the Management Team.
4 contains the proviso that:
employer reserves the right to add to, subtract or in any other way
amend the delegation conferred in clauses 3 and 4".
appellant was empowered by this clause to delegate that task to any
person of its choice. Accordingly, no valid ground of complaint
arises from the fact that the Head of Department and not the
Management Team made the promotion.
the above reasons the appeal is allowed with costs.
CJ: I agree.
JA: I agree.
appellant's legal practitioners