The legality of unilateral transfer of employees from one city to another.

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The Legality of Unilateral Transfer of Employees,?by Ashton Mufari,

Introduction

While I was in my office on one of the busy days, I received a phone call from one of my longtime friends, an employee who had been unilaterally and without being given an opportunity to present his case and explain his circumstances, transferred from Harare to Beitbridge. He was enquiring on whether the unilateral decision taken by his employer was in line with the dictates of the Zimbabwe labour law. I dashed into my library and came up with a quick opinion which I sent him. A week later, I received an inquiry from a colleague who had also been consulted on a similar issue, albeit by a different individual/client. I asked myself why this area had become an issue of concern in the labour circles. I then made a decision to come up with this short simplified piece which I thought I could share.

The facts

The facts in a matter in which I was consulted and in which a colleague of mine was also consulted revolved around a scenario where an employer decided to expand operations by opening a new branch in a different city. Both employers picked employees from the company based on their experience and capability of the employees and decided that those employees were going to be transferred to go and open new branches. The managing directors then wrote letters to the employees informing them that they had been transferred to new branches with effect from the following month. Employees in both incidents were never consulted before these decisions were taken. It was at that moment that they decided to seek legal advice.

The legal issues

Upon receipt of instructions, what first came to my mind was to pick the legal issues arising. In picking the legal issues, I came up with the following issues:

a)????Can an employer transfer an employee from one location to a different location without the employees’ consent?

b)????What are the steps which should be taken before a decision to transfer an employee is made?

Unlike in other pieces where I usually answer to issues under determination separately, I have chosen to answer these two issues under one heading titled, ‘the legal position.’ I proceed to provide the legal position herein.

The Legal Position

The task of this piece is to explain whether an employer can transfer an employee from one location to a different location before consulting the employee concerned and before giving the employee an opportunity to respond to the intention to transfer.

The starting point to note is that at common law, an employer has the right to unilaterally vary the terms of employment such as the duties being done by the worker, the location of work or department etc., provided that such variation is not substantially different from the contract job description or does not result in substantial downgrading of the status and dignity of the employee or is in breach of a legitimate expectation of the employee or is not unlawful discrimination.

However, the employer must make a decision to transfer an employee after giving such an employee an opportunity to state their side of the story. Where an employer unilaterally act and transfer an employee without giving them an opportunity to respond to the intention to transfer, such transfer is unlawful.

Zimbabwean courts have already pronounced on unilateral transfer. In the case of?Taylor versus Minister of Higher Education & Another,?1996 Volume 2, Zimbabwe Law Reports at page 772?(Supreme Court Judgment), the Supreme court reversed the dismissal of a college lecturer who had refused to be transferred from Bulawayo to Harare without being given notice or right to make representations. The court held that the employee had a legitimate expectation to be heard before being transferred.

In yet another case called?Guruva v Traffic Safety Council of Zimbabwe,?Supreme Court Judgment Number 30 of 2008,?the Supreme Court stated and held that an employee had the right to be heard before transfer because of the?audi alteram partem?rule. In that case the employee had been told to transfer before being given a chance to be heard or to explain his circumstances.

The?audi alteram partem?rule is a rule of natural justice. It encompasses the fact that a party or parties involved in a matter in which their rights are likely to be affected must or should be given an opportunity to present their cases before decisions affecting their rights are made. However, just like any other principles of natural justice, the?audi alteram partem?rule is not a rigid, fixed and invariable rule. However, this is not to suggest that the rule should be ignored.

Accordingly, relying on these two cases, there is good precedent to the effect that an employer must first consult an employee before making a decision to transfer the employee to a different location.

I however hasten to state that transferring an employee from a different location and transferring an employee to a different department are two different things. An employer need not to consult an employee before changing the employee from one department to another, provided that there is no substantial material variation of duties and responsibilities. This is especially so where the employer considers it ‘necessary’ to transfer the employee. Thus in the case of?Chimenya v Associated Textiles Private Limited, Supreme Court Judgment Number 201 of 94, the court upheld the right of an employer to transfer an employee from one department to another to facilitate misconduct investigations.

Where an employer transfers an employee to a different department and it is evident that there is substantial variation of the job description of the employee, my considered opinion, guided by precedent, is that the employee has the right to refuse the transfer. I submit so, guided by the case of?Mutsaka v Mutare Board & Papers Mills LC/MC/07/03, where an ‘issuing clerk’ in one department whose job description included ‘general clerical work, selling of scrap, orderly packing of stock and any other work as delegated by the Stores Controller’, was transferred to another department, with a new title of ‘Yard Clerk’, whose duties included to ‘accompany driver on deliveries and collections.’ He refused to sign the new job description or to take the transfer, stating that this amounted to demotion, as it would make him more of a messenger than a clerk. He was dismissed for insubordination. The court reversed the dismissal as substantial ‘unilateral variation of the contract’ was evident. Employers must therefore ensure that employees are given notices of any decision to be taken and must give them sufficient time to respond to any proposed course of action.

However, my position that an employee has the right to refuse the transfer must not be taken as the right to refuse anything else that the employer has decided. In some cases, the employer will be within their right to transfer an employee especially from one department to another, or even change the job description provided that the change is not a material departure from the initial job description. For example, bus instructors may be transferred from the instructing department to being drivers. They cannot refuse in those circumstances. Thus in?ZUPCO v Mabande & Anor 1998 (2) ZLR 150 (Supreme Court Judgment), the court upheld the dismissal of driving instructors who had defied an instruction by the employer to drive buses in replacement of striking bus drivers, on the ground that this was reasonably within the scope of their job descriptions. In?Masawi v Silver Ranch (Pvt) Ltd LC/H/38/2004, the Court upheld the dismissal of a headwaiter who had refused to serve delayed refreshments to guests in the absence of ordinary waiters, on the ground that this reduced his status in the eyes of his subordinates and guests. See also?Chimenya v Associated Textiles (Pvt) Ltd, Supreme Court Judgment 201 of 1994,?the court upheld the right of the employer to transfer an employee from one department to another to facilitate misconduct investigations.

The question that comes out is how long should an employee take before responding. The legal position is that the period should be ‘reasonable’. This is somehow problematic because there is no universal notation of reasonableness. The legal position however is that all that is required is that an employee must be given reasonable notice. Reasonableness of the amount of notice given in any particular case will depend upon factors such as the nature of transfer, business needs, among others. – see?Rwodzi v Chegutu Municipality 2003(1) ZLR 601 (H).?An employee should be given an opportunity to consult his or her legal representatives if he or she so wishes.

The last question which I seek to answer is whether or not after hearing the employee, the employer can then still proceed to transfer the employee. Usually, what happens is that the employer should heed the reasons why an employee cannot transfer and then make a determination. Where the reasons for refusing to transfer are substantially material, an employer should not force an employee to transfer. At law, an employee who does not wish to be transferred must give ‘good and sufficient cause.’ While not easy to define, good and sufficient cause would include such matters as unfounded allegations, victimization of the employee and any action taken to disadvantage the employee.

In conclusion, it is my opinion that employers should consult employees first before taking a decision to transfer them. Even if the employer thinks that there will be no substantial and material variation of duties in the new department, it is advisable to consult the employee first because what may not be substantial variation to the employer may be regarded as a substantial variation by the employee and confirmed by the courts. When it comes to transferring employees from one location to the other, employees must be consulted. They must be given an opportunity to explain what they think to the intention to be transferred. If an employee does not provide ‘good and sufficient cause’ why they should not be transferred, the employer can still decide to transfer that employee provided that the employee has been heard first.

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Ashton MufariLegal Practitioner, Conveyancer & Notary Public

LLB (Hons) UZ, LLM, LLM (SA), Cert RM, Cert IP, MBA Cand (UZ)

[email protected],?[email protected], 0778173205.