By Simbarashe Gobvu
Acting period has become a source of dispute in many organizations especially where there is no clear policy which specify the duration and recourse when acting is prolonged beyond the stipulated time frame. In other organizations employees can act for an indefinite period without an end date and this create a risk that the employee can build a legitimate expectation for permanent status. It is critical that acting employees should be engaged for fixed period with clear terms and conditions.
Acting appointment is usually done when an employee assumes responsibility of a job in a higher position temporarily while the process of filling the position is under way. The purpose of appointing someone in an acting position is to avoid the gap which may stall operations of the organization. In most cases a person whose grade is one step lower than the vacant position is offered to act. Acting can be done when someone is on vacation leave, sick leave or resigns so that work is not interrupted. In the case of retrenchment or retirement the employer usually implement a succession plan with clear career progression to fill the vacant position promptly. Where acting is inevitable the vacant position must be filled at the most possible minimum period to avoid prolonged acting appointments. It is advisable to recruit internally so that there is smooth transition and fast replacement. However external recruitment may be necessary where local talent does not match the required specification to fill the position.
In Zimbabwe, the Labour Act is silent on the acting period and there is no clear legal provision on the actual acting period. However various collective bargaining agreements have set six months as a default period for acting and any employee who act in access of the stipulated period would be automatically confirmed to the substantive position. In terms of Statutory Instrument 1 of 2000, Public Service Regulations, no member other than a teacher can act for more than 184 days. Other organizations have policies which guide them on the acting terms and conditions. There is no one size fits all for the acting period but the common custom and practice in most organizations is six months.
There is no given right to be confirmed to a substantive position but acting should be a reasonable period. It is advisable that employers must clearly specify the period to avoid unnecessary disputes where employees would feel shortchanged when they act for long time and later dropped and replaced with new external candidates who are not familiar with the position. The common six months acting period should be enough to replace the acting employee or confirming him or her to the permanent status. An incompetent employee can not be left to act for more than six months. In the case of CAAZ versus Rumbidzai Malete and 9 others, the court found it absurd for a company to appoint in an acting capacity someone whom it does not trust for more than six months. Effort should be made by management to ensure that they do not create a custom and practice which end up creating unnecessary expectation of permanent status for acting employees. It is advised that employers should rather consider rotation in the acting position than creating legitimate expectation to permanent status.
The employee must be confirmed on merit or be returned to the original position within a reasonable timeframe. Where the acting period is inordinately long the employee is entitled to have a legitimate expectation of continuing and it becomes unfair labour practice to fail to confirm the member. In the case of Zimbabwe Broadcasting Corporation (ZBC) versus Takudzwa Chiturumani, the court, basing on the Corporation policy ruled that acting beyond a maximum period of six months confers the employee to a substantive position.
While there is no legal provision in the Labour Act employers must have acting policies which clearly specify the guiding principles of acting appointments to avoid litigation. https://masvingomirror.com
Opinions expressed herein are solely those of the author and must not be taken as legal advice. Simbarashe Gobvu is an experienced Labour Practitioner and an Independent Arbitrator who write in his own capacity. He can be contacted at [email protected]/ Phone 0773215904 or 0713008767