DISTRIBUTABLE
(121)
Judgment No
SC 101/04
Civil Appeal No 160/02
STANWELL
J. CHODOKUFA v THE NATIONAL EMPLOYMENT COUNCIL
FOR THE CATERING INDUSTRY
SUPREME COURT OF
ZIMBABWE
CHIDYAUSIKU CJ,
ZIYAMBI JA & MALABA JA
HARARE JUNE 28, 2004
A.M. Gijima, for
the appellant
F. Nyakabawu,
for the respondent
CHIDYAUSIKU CJ: This appeal was dismissed at the hearing.
Reasons for judgment were to follow. These are they -
The appellant in this case was an employee of the respondent at the
relevant time. On 22 September 2000 the appellant was sent
on leave
with his pay and benefits being paid by the respondent. This was in
terms of a letter written to the appellant by the
respondents
secretary general dated 22 September. The letter reads as follows:
Re: LEAVE OF ABSENCE
I hereby advise that the Finance Committee is currently looking into
the activities and performance of the Accounts Department.
After
consultations with the Chairman, I have decided that the exercise
should be carried out in your absence.
As a result, I have
decided that your leave of absence should be extended from the 25th
September 2000 until further advice. This will be paid leave and it
is hoped that the Finance Committee will finalise the matter
as soon
as possible.
On 28 February 2001 the appellant was then suspended without salary
and benefits in terms of the then applicable regulations, the
Labour
Relations (General Conditions of Employment)(Termination of
Employment) Regulations, Statutory Instrument 371/1985 (the
Regulations).
The letter of
suspension without salary and benefits pending dismissal was again
written by the secretary general of the respondent
and was attached
to the proceedings in the court a quo as Annexure I.
Paragraph 7 of that letter reads as follows:
7. In view of the foregoing, I hereby suspend you without pay and
benefits with effect from the 1st March 2001. You are
required to hand over Council vehicle, office keys and the cell phone
to the Office Supervisor and to make
arrangements to pay off your
housing loan within a period of three months. It is needless to
point out that henceforth you will
not be allowed to come to NECCI
and CIPF offices unless your visits are specifically limited to
issues pertaining to your suspension
such as collecting your personal
items and discussing payment arrangements with the Property Manager.
8. By copy of this
letter the Ministry of Labour Manpower & Social Welfare has been
notified of your suspension and reasons for
the same and is herewith
requested to deal with the matter in terms of Section 93 of the
Labour Relations Act so that your contract
of employment is lawfully
terminated.
The appellant was dissatisfied with his dismissal and applied to
the High Court for an order setting aside his suspension. The
High
Court dismissed the application. The appellant was dissatisfied
with the decision of the High Court and now appeals to this
Court.
In his notice of
appeal to this Court the appellant raised three issues.
Firstly, he contends that the court a quo erred in concluding
that the secretary general of the respondent had authority to suspend
him.
Secondly, that the
court a quo erred by failing to recognise that the appellant
had not been on leave but was on suspension with salary and benefits
when the respondent
purportedly suspended him without salary and
benefits.
Thirdly, the court a
quo had erred in holding that the appellant had not opposed the
respondents court application to recover certain of its property
that
was in the possession of the appellant.
In dismissing the
appellants application the learned judge in the court a quo
reasoned as follows:-
None of the submissions made by Chodokufa can be sustained.
The secretary general
of the NIC says that he was authorized by the NIC to suspend
Chodokufa. The Chairman of the NIC and the minutes
of the NIC
confirm that he was authorized.
Chodokufas two
remaining submissions are based on a claim he was, in law, suspended
when he was sent on paid leave of absence on
22nd
September 2000. That submission is not correct. Chodokufa was not
suspended at that time. He was on leave. The two concepts
and the
consequences that flow from them are entirely separate and different.
Accordingly, the
application cannot succeed.
I entirely agree with the reasoning and conclusion reached by the
learned judge in the court a quo. It is quite clear from the
letter dated 22 September that the appellant was being sent on
extended leave in order to facilitate
investigations into the manner
in which he was carrying out his duties. That cannot, as it is
contended by the appellant, be construed
as suspension. The letter
is very explicit in that the appellant was being sent on leave in
order to facilitate investigations.
Once the investigations were
complete the respondent decided to terminate the appellants
employment and sought permission to
do so in terms of the
Regulations. That was done promptly as is required by the law and
there is no substance in the submission
that this was not done
timeously.
The second point that
the appellant raises is one of authority. He argues that the
secretary general had no authority to suspend
him pending permission
to dismiss him. Again, in my view there is no substance in this
contention.
The respondent is a
legal persona whose functions have to be carried out by an
officer of the respondent. Indeed the secretary general is the
officer who would carry
out that kind of function. It is apparent
from the record that it was the secretary general who wrote to the
appellant offering
him employment. It was the secretary general who
sent him on extended leave pending investigation. It was the
secretary general
who wrote to him advising the appellant that he
would not be getting his bonus.
In any event, there is explicit authority given to the secretary
general by the Chairman of the respondent to specifically deal with
the issue of the appellants dismissal. The secretary general
acted as an agent of the respondent. The respondent avers that
he
had its authority to act. It is not open to the appellant to
dispute such authority. Even if one were to accept the appellants
contention that he did not have the authority at the time to write
the letter it is abundantly clear from the record that the respondent
ratified the actions of the secretary general.
In the result I am
satisfied that the appeal has no merit. It is, accordingly,
dismissed with costs.
ZIYAMBI
JA: I agree.
MALABA JA: I
agree.
Pundu & Company,
appellant's legal practitioners
Gill Godlonton &
Gerrans, respondent's legal practitioners