Felex Share Harare Bureau
The government is not obliged to consult anyone when taking measures on civil servants’ conditions of service and has discretion to withdraw vacation leave and reset it for another day. Any civil servant aggrieved by lawful directives should follow the “grievance procedure” as provided for by the Public Service Commission regulations, the government said.
This emerged in a case in which the Zimbabwe Teachers’ Association took the government to court challenging the deferment of vacation leave for all teachers.
The union, together with two of its members Samson Chinowoneka and Axilia Musekiwa, made an urgent chamber application at the Labour Court seeking to stop their recall from vacation leave this school term.
The educators argued that the move by the government was an unfair labour practice and unlawful as it violated labour rights enshrined in Section 65 of the Constitution.
They cited the Minister of Primary and Secondary Education, the Ministry’s permanent secretary, the Civil Service Commission and the Minister of Public Service, Labour and Social Welfare as respondents.
Labour Court judge Justice Bridget Chivizhe this week declared the matter was not urgent and should be set on the ordinary roll.
In its response to the court papers filed by the union, the government, through the Public Service Commission, said the decision to scrap vacation leave for teachers was justified and it was guided by Section 58 of the PSC regulations which allowed for the heads of Ministry to suspend the operations of a working rule.
In any case, the PSC argued, there was no provision that made it mandatory for them to consult members before deferring the vacation leave.
The Commission said the teachers were not denied their leave, but had “simply” been recalled until a proper policy had been adopted.
“Section 20 (2) of the Public Service Act clearly states that conditions of service fixed shall not be invalid solely on the ground that there were no consultations done prior to the fixing of such,” read the PSC response.
“There is no provision that stipulates that the respondents must give the applicant an opportunity to be heard before the decision could be taken. There has not been any violation of labour rights. The applicants failed to realise that in as much as leave is a right, the employer reserves the right to call one from leave in times of a crisis like in this case.”
In their application, the teachers said they would suffer “material economic harm” of reporting to work urgently against their plans and those of their families, including travelling expenses.
They argued that they would suffer irreparably as their vacation leave had a school term’s duration which could only be applied for after seven years’ service of accrual of such leave days.
Responded the PSC: “There is no reasonable economic harm that can be suffered by the applicant in the matter. In any event, most members have reported for duty and its business as usual without any prejudice suffered.
“Vacation days for the applicants have not been forfeited and could be used after a sustainable policy has been passed. The vacation days have no limit on accrual, but only that there is a maximum cap on the number of days one takes for their vacation leave. In essence, the members’ days will continue to accrue beyond 132 days.”
The PSC said the decision to delay commencement of vacation leave was a measure adopted to address current fiscal constraints.
This school term, 2,000 teachers wanted to go on vacation leave and it meant government engaging a similar number of relief educators at a cost of $2.5 million for the three months substantive teachers would be away.
The relief teachers draw full salaries and allowances, a habit which a government audit carried out last year recommended should be stopped.
The rest of the civil service, outside the education sector, do not bring any financial burden to government if they go on vacation leave because they are not replaced.