HomeOpinion & AnalysisColumnists‘Mobility clauses’ should be applied reasonably

‘Mobility clauses’ should be applied reasonably

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There are many reasons why decisions are made to transfer employees from one location to another.

An organisation could be restructuring and this may entail relocation of employees on a massive scale.

One division or branch of a company in one city may close down necessitating the transfer of affected employees to other branches in a different city. It could be that an employee has committed certain acts of misconduct, for instance sexual harassment or assault, and as a disciplinary penalty, the employee may be transferred to another workstation.

A long-serving employee with an otherwise good employment record may suddenly start performing poorly because of problems with a new supervisor and transfer of such employee may be appropriate.

A transfer may well be a remedy in instances where there is a clash of personalities between two employees and separation of such employees would allow the employment relationship to continue undisturbed.

As a way of grooming future managers, some organisations deliberately move their people to different units of their business to allow them to see the “bigger picture” before they can assume positions of higher responsibility.

In common law terms, the transfer of an employee is considered a managerial prerogative. “Mobility clauses” inserted in most contracts of employment empower employers to change the employees’ location of work.

These clauses state that employees are subject to transfer during their period of service with the employer. However, a transfer has to be carried out in a manner that causes little or no inconvenience to the employee.

More often than not, a transfer causes disruption to the personal life of the employee and as such, the employee’s views should be taken into account before the decision to transfer is finally taken.

Courts have generally declined to interfere with decisions to transfer employees where such decisions are based on sound operational reasons. Interdepartmental transfers or transfers within the same city usually pass without incident. However, when transfers involve movement from one city to another, say from Harare to Bulawayo, disputes usually arise.

For us to get a better understanding of pertinent issues affecting the transfer of employees in the eyes of the law, let’s look at two cases that have been decided by Zimbabwean courts. The first one was decided by the High Court in favour of an employee.

The second one was handled by the Supreme Court where judgment was made in favour of the employer. In both cases, it is important to take note of what each court said in reaching its decision.

Jane Kanonhuwa v Cotton Company of Zimbabwe (COTTCO) (Case No. HH10/98).

Jane Kanonhuwa was employed by Cottco as a clerk at its Sanyati depot. She asked for and was granted a transfer to Harare to join her husband who worked there.

Later, management decided to transfer her again, this time to Manoti depot in Gokwe. Kanonhuwa challenged the transfer and sought relief from the High Court. In her court application, Kanonhuwa alleged that her transfer was a disciplinary measure disguised as an administrative decision (apparently, management was not happy with her performance and other issues).

The High Court invoked the common law doctrine of legitimate expectation which provides that an employee has a right to be given a fair hearing before any employment decision adverse to his or her interests is taken.

The court decided that the manner in which Cottco intended to transfer Kanonhuwa “did not seem to accord with fairness” and that “the views, wishes and personal circumstances of the applicant were relevant and ought to have been taken into consideration before the decision to transfer was made”. The following statement by the court also set a clear precedent on how courts view the issue of transfers: “For the avoidance of doubt, this judgment should not be construed as directing that no further transfers may be processed without the consent of the employee.

The respondent is a big organisation with various branches in various parts of the country. There will, no doubt, be cases when respondent has to consider transfer of some of its employees to enhance operational efficiency.

But in the particular circumstances of this case, and in the particular the fact that applicant had been transferred to Harare on account of her personal circumstances, the decision to transfer applicant to a depot about four hundred kilometres away without reference to her cannot stand”.

The High Court set aside Kanonhuwa’s transfer and ordered Cottco to meet the costs of her court application.

Danai Guruva v Traffic Safety Council of Zimbabwe (Case Number SC30/08).

Guruva was a regional manager based in Gweru. A decision was made to transfer him to the council’s Masvingo office with effect from January 1 2004. Guruva had personal reasons against the transfer which he raised with his superiors. Having considered Guruva’s objections, the council maintained its earlier decision to transfer him.

Aggrieved, Guruva sought relief from the courts. The matter went all the way up to the Supreme Court which ruled in favour of the Traffic Safety Council of Zimbabwe.

Said judge Justice Cheda who presided over the matter: “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 employer’s operations 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.”

In this instance, the Traffic Safety Council convinced the court that it had genuine business reasons to relocate Guruva and that he (Guruva) had exercised his right to be heard before the final decision to transfer him was taken. The court ruled in the council’s favour.

What do we learn from these two court judgments? I believe the following three aspects stick out:
.If the business of your employer is conducted at different locations, the risk of being relocated to wherever such services are required is real, unless your employment contract stipulates clearly that you will remain permanently at a specific place.

.The employee has a right to be heard (the audi alteram partem rule), and to make representations against a proposed transfer.

However, the final decision still lies with the employer. All the employer needs to show is that it has valid reasons for transferring the employee and that the employee was given a pre-transfer hearing. When such is proved, the courts will not interfere with the employer’s decision.

On another note, however, in Taylor v Minister of Higher Education & Another (1996), the Supreme Court pointed out that in some cases an employer can still transfer an employee without giving him or her a hearing, depending on the special circumstances of the case and that it would be impractical if every employee were to be consulted before a transfer or decision is made.

.Courts are reluctant to accept the transfer of employees for ulterior reasons. In a South African case of Theron v Minister of Correctional Services & Another (2008), the court squashed the decision to transfer a prison doctor as it was apparent that the decision emanated from his criticism of the prison’s healthcare facilities.

The court held that although the department had a right to transfer employees for valid reasons, this one was motivated by bad faith. It was a violation of the common law obligation which requires that an employer should act in good faith when dealing with an employee.

By and large, transfers should be used sparingly and only in cases where they can serve a useful purpose. The employee must be consulted and preferably, where possible, his or her consent obtained. In the interests of industrial harmony, a win-win situation should be the ultimate goal.

.Isaac Mazanhi is a labour analyst. He writes in his own capacity. He can be contacted on e-mail: imazanhi@hotmail.com or cell: 0773 063 653

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