REPORTABLE
(25)
Judgment
No. S.C. 25/02
Civil
Appeal No. 54/01
MWAAKA
SAMUEL MUKUNDU v
(1)
THE CHAIRMAN MUTASA RURAL DISTRICT
COUNCIL (2) MUTASA RURAL DISTRICT COUNCIL
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA
HARARE,
MARCH 12 & MAY 23, 2002
F
G Gijima,
for the appellant
N
Machingauta,
for the respondents
MALABA JA:
This is an appeal from a judgment of the High Court delivered on
15 February 2001 dismissing with costs
an application by way of
review for an order setting aside the decision by the second
respondent to suspend the appellant from work
and directing that he
be reinstated to the post of chief executive officer.
The relevant
facts placed before the court a quo
may be summarised as follows. The appellant, to whom I will refer
as Mukundu, was employed by the second respondent (hereinafter
called the Council) as chief executive officer. In a report
dated 5 January 1998 internal auditors who had examined
the
Councils books of account made certain allegations of financial
mismanagement against Mukundu. They alleged in particular
that he
1. Awarded
himself increments in salary and allowances without authority from
the Council;
2. Obtained cement blocks from
Council premises for private purposes on credit without Councils
authority. At the time of audit
he had not paid for 1 300
cement blocks;
3. Failed to account for $16 000
that went missing from Council funds;
4. Failed to keep records of the
collection and use of the development levy so that it was not known
what contributions were being
made by wards and individuals; and
5. Sold Council assets to private
individuals on credit after they had won tender without Councils
authority. At the time of
audit the full purchase price of a motor
vehicle sold on credit after a successful tender had not been
recovered.
On
10 February 1998 the Council appointed a committee in terms of
s 62 of the Rural District Councils Act [Chapter 29:13]
(the Act) to investigate the allegations of misconduct made
against Mukundu in the internal audit report. At the proceedings
held by the committee Mukundu was asked to comment on the allegations
made in the audit report. In addition to the verbal explanation
Mukundu submitted written comments.
At the end
of the inquiry on 18 February 1998 the committee was of the view
that there were grounds to believe that Mukundu
was guilty of
misconduct, dishonesty and negligence in the performance of his
duties as chief executive officer. It recommended
that he be
suspended from work without pay and an application made to a labour
relations officer in terms of the Labour Relations
(General
Conditions of Employment) (Termination of Employment) Regulations
1985, SI 371/85 (SI 371/85). A letter
was written
to Mukundu by the first respondent (the chairman) on
28 February 1998, notifying him that he was on suspension
without pay as from that date. The letter advised him that an
application was to be made to a labour relations officer for an order
terminating his contract of employment and outlined the grounds the
Council would rely upon in making the application.
On
6 March 1998 the Council ratified and adopted the decision of
the committee and approved the suspension of Mukundu. On
11 March
1998 an application was made to the labour relations officer in terms
of s 3 of SI 371/85 for an order terminating
Mukundus
contract of employment. On 26 March 1998 the labour relations
officer notified the parties that the application
for the dismissal
of Mukundu was to be heard on 8 April 1998.
A
day before the application for the order terminating his contract of
employment was to be heard, Mukundu made an application to
the High
Court for the review of the decision of the Council to suspend him
from work. He alleged that the suspension was unlawful
because the
Council had no right to refer the matter of the termination of his
contract of employment to the labour relations officer.
The
argument was that the Council ought to have discharged Mukundu in
terms of s 36(2)(b) of the Conditions of Service 1993
(the
Conditions of Service).
The
Conditions of Service were fixed by the Council with the approval of
the Minister responsible for the administration of the
Act in terms
of s 67(1). Section 36(1)(e) of the Conditions of Service
provided that the Council could discharge an officer
without notice
on the ground of misconduct. Section 36(2) then provided that:
Where
an officer
is liable to dismissal without notice in terms of
paragraph (e) of subsection (1) of section 36
of these
Conditions of Service, the Council
(a) may suspend him from duty
pending the outcome of an inquiry, which the Council shall carry out,
and, unless the Council directs
otherwise, his salary or wages shall
terminate with effect from the date of his suspension;
(b) on
receipt of the report of the inquiry referred to in paragraph (a),
the Council may, if it thinks fit, discharge such officer
with
effect from the date of suspension
.
The
argument advanced on behalf of the appellant in the court a
quo was that, having
found that Mukundu had committed acts of misconduct which rendered
him liable to dismissal without notice, the Council
had to act in
terms of s 36(2)(b) of the Conditions of Service and discharge
him. It was said that the application to the
labour relations
officer was a nullity because it was not the sequel of a suspension
in terms of s 36(2)(a) of the Conditions
of Service. In other
words, the submission was that the provisions of the Labour Relations
Act [Chapter 28:01]
and SI 371/85 were not applicable to the termination of
Mukundus contract of employment with the Council. The learned
judge rejected the argument, holding instead that the Council was
obliged to apply the provisions of the Labour Relations Act and
SI 371/85 to the dismissal of the appellant.
Section 3
of the Labour Relations Act provides that it:
shall
apply to all employers and all employees except those whose
conditions of employment are otherwise provided for by or under
the
Constitution.
It
is common cause that conditions of employment of employees of rural
district councils are not provided for by or under the Constitution.
(See Gumbo v
Norton-Selous Rural Council
1992 (2) ZLR 403 (S)).
Section 2(1)
of SI 371/85 provides that:
no
employer shall, summarily or otherwise, terminate a contract of
employment with an employee unless
(a) he has obtained the prior
written approval of the Minister to do so; or
(b)
(c)
(d) the
contract of employment is terminated in terms of section 3.
Section 3
provides that where an employer has:
good
cause to believe that an employee is guilty of
(a) any act, conduct or omission
inconsistent with the fulfilment of the express or implied conditions
of his contract;
the
employer may suspend such employee without pay and other benefits and
shall forthwith apply to a labour relations officer for
an order or
determination terminating the contract of employment.
Statutory
Instrument 371/85 contains regulations made in terms of s 17(1)
of the Labour Relations Act. The regulations are,
by virtue of
s 3(1) of the Interpretation Act [Chapter 1],
part of the Labour Relations Act. Section 17(2) provides that
unless such regulations otherwise provide, they shall prevail
over
any other Statutory Instrument or any agreement or arrangement
whatsoever.
Before
considering the issue debated in the appeal, I must mention that the
application for an order terminating Mukundus contract
of
employment with the Council was subsequently heard by the labour
relations officer. He found that the grounds for the suspension
of
the appellant from duty had been proved and had an order terminating
his contract of employment served on him. Mr Mukundu
appealed
to the senior labour relations officer who, on 10 April 2000,
upheld the decision of the labour relations officer.
On 8 May
2000 an appeal was noted to the Labour Relations Tribunal (the
Tribunal) against the decision of the senior
labour relations
officer. The appeal is pending hearing by the Tribunal.
I
turn now to consider the issue raised on appeal in this Court.
It
is clear from the papers that the Council carried out the inquiry
into the allegations of misconduct levelled against the appellant
in
the internal audit report in order to satisfy itself that there were
grounds for suspending him from duty pending an application
to the
labour relations officer for an order or determination terminating
his contract of employment. If the application was null
and void
the suspension was equally unlawful. In that event, the order of
the labour relations officer terminating the appellants
contract
of employment would not have effect from the date of his suspension.
It would have effect from the date it was made.
I
am, however, in agreement with the decision of the learned judge in
the court a quo
that the provisions of the Labour Relations Act and SI 371/85
were applicable to the termination of the appellants contract
of
employment. An examination of the Act shows that there is no
provision making the Labour Relations Act and SI 371/85
inapplicable
to the termination of a contract of employment of a
chief executive officer of a rural district council. Unlike the
Urban Councils
Act [Chapter 29:15],
which contains ss 139 and 140 prohibiting an urban council from
discharging a town clerk and a senior official respectively without
the approval of the Local Government Board, the Rural District
Councils Act has no specific provision relating to the discharge of
a
senior official such as a chief executive officer.
The
cases in which the question of the applicability of the Labour
Relations Act and SI 371/85 to the termination of a contract
of
employment has been raised and resolved show that an employer is
obliged to obtain the approval of the Minister of Public Service,
Labour and Social Welfare (the Minister) to discharge an
officer or apply to the labour relations officer for an order or
determination
terminating the contract of employment, unless the
statute under consideration has an express provision allowing the
employer to
obtain permission to dismiss the officer from a specific
body or some other Minister or makes the Labour Relations Act and
SI 371/85
inapplicable. See Masasi
v Posts and Telecommunications Corporation
1991 (2) ZLR 73 (H); Gumbo
v Norton-Selous Rural Council supra;
City of Mutare v
Matamisa 1998 (1) ZLR
512 (S).
It
must follow from the application of the general principle to the
facts of this case that even if the Council had decided to discharge
Mukundu in terms of s 36(2)(b) of the Conditions of Service, the
dismissal would have been unlawful for failure to obtain prior
written approval of the discharge from the Minister.
In
the circumstances, it is a contradiction in terms to talk of a valid
discharge of the appellant in terms of s 36(2)(b) of
the
Conditions of Service without the acknowledgement of the
applicability of s 2(1) of SI 371/85 to the termination of
his contract of employment.
The
judgment of the court a quo
was, in my opinion, correct.
The
appeal is, accordingly, dismissed with costs.
CHIDYAUSIKU
CJ: I agree.
ZIYAMBI
JA: I agree.
F
G Gijima & Associates,
appellant's legal practitioners
Bere
Brothers, respondents'
legal practitioners
