The Sunday News
Vincent Gono, Features Editor
THE Civil Service Commission (CSC) has lost a legal battle against the headmaster of Tshelanyemba High School in Kezi at the Labour Court who was challenging his transfer and ultimate discharge from service alleging the move was unlawful, unjustified and inspired by the desire to victimise him.
The court set aside his transfer from Tshelanyemba as well as his discharge from the service and ordered the CSC to pay the costs of the application.
The headmaster, Mr Ezekiel Hleza through his lawyer Mr Eddie Matika of Munyaradzi Gwisai and Partners Legal Practitioners won the case against his employer at the Labour Court last week.
Labour Court judge, Justice Mercy Moya-Matshanga ruled that the CSC failed to take full cognisance of Section 13 of the PSC regulations, 2000 S.I 1 of 2000 that provides that, a member may at any time be transferred by the commission or a delegated authority from the post which he occupies to any other post in the Public Service whether post is inside or outside Zimbabwe.
Subsection 3 (a) of section 13 states that the transfer should be planned to minimise discomfort on the part of the member concerned and his family and (b) should be notified timeously to the member concerned who shall be provided with all necessary information relating to the transfer.
The judge said it was clear that section 13 (3) was not complied with and yet it was couched in peremptory terms.
“The member was notified on the 22nd of January 2018 to report to another school in another district the following day. The reason for the transfer is not disclosed. The discomfort he would suffer together with his family was not considered.
“In short the transfer was not planned at all. It would appear there was an element of urgency and secretiveness because first of all somebody was brought to replace the applicant unbeknown to the applicant and he was given 24 hours to uproot himself, his family and property at his expense to a far flung district.
“Further, section 13 (4) provides that no transfer shall be used as a punitive measure except pursuant to the disciplinary procedures provided in part VIII,” reads part of the judgment number LC/MT148/18.
The judgment set aside the decision by the CSC to transfer Mr Hleza to Siyoka Secondary School in Beitbridge.
“It is hereby ordered that the application for review be and is hereby granted and that the decision by the respondent to transfer the applicant to Siyoka Secondary School be and is hereby set aside.
“The notice of discharge of applicant from service by the respondent be and is hereby set aside,” reads the judgment by Justice Moya-Matshanga.
Mr Hleza was challenging his discharge from service that was prompted by his refusal to be transferred from Tshelanyemba High School to Siyoka Secondary School in Beitbridge arguing that his employers were not acting in good faith.
The transfer which he was challenging was followed by a cessation of salary notice and finally the discharge letter which stated that he had failed to assume duty at the new station after 30 days of him being given notice.
The letter stated that the transfer was supposed to be with immediate effect and he was to assume duty at the new station the following day on 23 January.
His lawyers said they were surprised that a few days before his transfer, on 15 January 2018 a new head, Mr Ngoneni Moyo was placed at the school to replace him.
“As if that was not enough on 02 February 2018 our client was served with a notice of cessation of salary and threats of disciplinary action being taken against him. The cessation of salary was to take effect by 05 February 2018.
“We write to categorically challenge this kind of transfer as it amounts to victimisation, unjustified and unprecedented unfair labour practice in a democratic society,” reads part of the letter written by the lawyers to CSC.
They argued that no transfer should be done to take immediate effect in respect of Section 13(3) and 13(4) of the Public Service Regulations SI 1 of 2000.
The ministry, through the acting provincial education director for Matabeleland South Mr Lifias Masukume, said the transfer was in line with the Public Service Regulation as stated in the SI 1 of 2000 as amended.
“According to the Public Service Regulation 13(1) a member may at any time without his consent be transferred by the Commission or delegated authority from the post he occupies to any other post in the Public Service whether the post is inside or outside Zimbabwe,” quoted Mr Masukume in his letter.