labour issue Mr LT Biti for the appellants, The appellants were junior doctors and nurses, employed in the public service. they had, in common with most other public servants throughout the country, taken part in a general work stoppage in August 1996, and again in October f that year. All striking doctors and nursers were sent a letter from he Acting Minister of the Public Service, stating that they had been summarily dismissed from their employment. The letter said that they could written representations within a month. The appellants all applied for reinstatement. Force received letter rejecting their applications, the others were told they would be reinstated, but not paid for the time between their dismissal and reinstatement. The appellants sought an order from the High Court reinstating them. They alleged that they had not been given an opportunity to make representations before they were dismissed and that no investigation of their respective positions was ever made. The respondents claimed that there had been newspaper announcements warning of serious consequences if the stringing public servants did not return to work within a very short time. The high court (ADAM J) had dismissed the applications on the grounds that notification had been given to the appellants of the consequences of failing to return to work, that there was an emergency and that therefore ex parte action was lawful. The high court had also held that the exclusion of a prior hearing and representations had been mitigated by the regulations which entitled a dismissed public servant to make subsequent written representations. On appeal:

held, that even if there had been such press announcements, these could not be taken to be certificates of service on the appellants. The crucial point was whether the appellants had been given an opportunity to be heard. In this case, there was never any application of judicious mind before decisions were made.

held further that the tenor of legislation dealing with the public service could not be said to exclude the audi alteram partem principle, either directly or by implication. The respondents hold have given the appellants an opportunity to be heard.

held, further that the hearings and submissions that were held were not sufficiently fair to have the effect of curing the lack of an earlier hearing.held, further that the appellants where not reemployed because having lead the nurses and doctors in negotiations they were seen as having lead the strike.

Mr Biti for the appellant Administrative law,  The appellant had been the acting telephone supervisor at an exchange for a long period and had given good service during his time. When the substantive position was filled, however the appellant was not appointed to the post, which went to someone else. The Labour Relations Tribunal found that the failure to promote the appellant to the post of superintendent did not amount to an unfair labour practice.

On appeal held, that the minister of public service, labour and social welfare is empowered to prescribe by statutory instrument, the acts of omissions which constitute unfair labour practices. Regulations have been passed spelling out what are unfair labour practices. The situation surrounding the failure to promote the appellant is not one of the specified unfair labour practices

Held further, that in the circumstances the employer had not created a situation which cause the appellant to legitimately to expect that he would be promoted into the post in which he was a citing. Most importantly, although the appellant had experience in the post, he lacked required academic qualifications for it. The decision to appoint a person with the required qualifications had not been unfairly arrived at. There is need for the courts to avoid undue interference int he administration of public authorities. Indeed, it could be contended with some persuasion that the promotion of an employee is a privilege, left to the discretion of the employer. It is not a right an employee is entitled to claim, unless his contract of employment so provides.

Mr LT Biti for the appellants – labour law employment contract. The appellants were employed by the first respondent, which decided to sell its assets and business to another company. As the other company would not be able to absorb all the first respondents employees, notice of retrenchment was given to them by the first respondent. Three days later the first respondents assets and business were sold to the other company. the appellants objects to the proposed retrenchment and the normal processes were followed under the labour legislation to deal with their objection. The first respondent told the appellant that they were to take paid leave for the duration of any accumulated leave and thereafter go on unpaid leave until the matters was finalised. An application to the high court by the appellants to compel the fist respondent today salaries and benefits failed on the ground that the parties shovel have complied with a determination by a labour relations office to continue negotiate or let the retrenchment committee determine the matter. the appellants appealed:

held, that the application was misconceived. When the first respondent’s assets were transferred, the appellants became employees of the other company. The notice of retrenchment by the first respondent fell away at that time. If the new employer wish ed to retrench the appellants, it should have given notice in terms of the relevant regulations. Any obligation to pay salaries and benefits had also become that of the new employer, and relief should have been sought against the other company.

Mr LT Biti for the appellant employment— contract and labour law. The appellant employed the respondent for a three year probationary period, during which either party was entitled to terminate the employment contract on one months notice. During the probationary period, the respondent refused to sit an assessment test, for which he was suspended and subsequently dismissed for refusing to obey a lawful order. The labour Relations Tribunal upheld his appeal against the dismissal, holding that he could no be required to sit an assessment tete until the end of the period of probation. The appellant took the tribunals decision on appeal tot he supreme court

held that at common law an employer in the appellants position has a right to test and assess an employee under probation. As in any period of probation the respondent was under scrutiny and liable to assessment: this was confirmed by the fact that his contract could be terminated on one month’s notice. His failure to undergo the test therefor constituted wilful disobedience to a lawful order and the appellant was entitled to dismiss him.

Mr LT Biti — administrative law, reasonable expectation doctrine — labour and employment. The applicant’s conditions of employment with eh respondent airline stated that they are eligible to apply for airline tickets at reduced rates but that the grant of such reduced travel benefit was a privilege to which they were not entitled as of right. the conditions also stated that i the applicants were refused the benefit they had to be informed of the reason for the decision. After the responded had refused their applications for a reduced travel benefit without informing them of the reasons the applicants applied to the hight court for an order declaring the refusal unlawful and obliging the respondent to grant them the benefit on demand. they contended that because they had never been refused the benefit before, it had become a right; alternatively that they had a legitimate expectation that it would not be refused; and that they should have been allowed to make representations before the respondent took the decision to refuse them that benefit.

held, that although the applicants had previously been granted the benefit whenever they applied for it, this did not convert it from a privilege into a right; nor did the obligation to give reasons for a refusal take away the respondents discretion to refuse or grant the benefit. If past practice and the respondents obligation to give reasons for a refuels had created an expectation in the applicants minds that the privilege had become a right the expectation was not a legitimate one.

held further that the respondents failure to afford the applications a hearing before refusing them the benefit and its failure to inform the applicants of the reason for refusing them the benefit though unfair did not render the refusal void.