REPORTABLE (29)

Judgment No. SC 20/06

Civil Appeal No. 60/04

CITY OF MUTARE v AGATHA SAMUPINDI

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, CHEDA JA & GWAUNZA JA

HARARE, MARCH 30 & SEPTEMBER 25, 2006

T Biti, for the appellant

V Mazengero, for the respondent

CHEDA JA: The appellant is a Municipality established in terms of s 4 of the Urban Councils Act [Chap 29:15] (“the Act”).

The respondent was employed by the appellant at its treasury department, where her duties included posting of receipts into the main computer system.

Following the discovery of an improper entry against a house belonging to her relative which had been reversed, she was brought before a departmental works council and charged with misconduct, for having-

a) falsified entries on an account in respect of stand 137, Chikanga thereby prejudicing Council of $1 200-00; and

b) that she failed to account for the above- mentioned discrepancy.

The hearing was conducted on 21 September 1998.

At this hearing, it is recorded in the minutes as follows:

“On being asked whether she had anything to say Ms Samupindi admitted that she was guilty of falsifying the account and begged for forgiveness”.

Certain recommendations were then made, but management maintained that her case deserved a dismissal.

In her letter to the Executive Mayor dated 7 July 1999 she complained why she was not merely cautioned as this was her first mistake after fifteen years of service.

A report had been submitted to the Executive Mayor, and the Executive Committee noted that Ms Samupindi had acted in an improper manner and had gone out of her way to cover up a debt owed by Mr Samupindi which had been handed over to the debt collection section.

The appellant then applied to a labour officer for authority to dismiss her in terms of S.I. 371 of 1985 s 3(a) and (d).

It should be noted here that the appellant did have powers to dismiss the respondent in terms of s 141(2)(b) of the Act.

The suspension of the respondent and the report to the Executive Mayor were proper and in compliance with the provisions of s 141 of that Act.

The Executive Committee, having noted the report and issues stated in the report submitted to it, could have simply dismissed the respondent from employment.

However, the appellant chose to seek authority from the Labour Relations Department to dismiss her.

Section 141(2) of the Act provides a follows:

“(2) Subject to the conditions of service of the employee concerned, a council or, in the case of a municipality council, the Executive Committee of the council, may at any time discharge an employee other than a senior official -

a) upon notice of not less than three months; or

b) summarily on the grounds of misconduct, dishonesty, negligence or any other ground that would in law justify discharge without notice.”

There was, therefore, sufficient cause for the discharge of the respondent without having to refer the matter to the labour officer.

Once the matter was referred to the labour officer, his appreciation of his role appears confused. He accepted, in his determination, that “Samupindi did not follow procedures”, then considered mitigatory factors raised by her legal practitioner, after which he concluded that reversal of the entry was an oversight.

If she did not follow the proper procedures, and/or, there was negligence on her part, that is covered by subs (2)(b) of s 141(2)(b) of the Act. Instead, the labour officer decided to exercise his discretion in sympathy with her situation. This was not appropriate because such a discretion was not within the jurisdiction of the labour relations officer.

The discretion of a labour officer was only brought about by the amendment in Act 17 of 2002 which came into operation after this case. It provided as follows in s 12B, ss 4:

“12B (4) In any proceedings before a labour officer, designated agent or the Labour Court where fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to the extent that would have justified action other than dismissal, including the length of the employee’s service, the employees’ previous disciplinary record, the nature of the employment and any special personal circumstances of the employee”.

The labour officer, having taken these factors into account, ordered that the respondent should be reinstated with effect from the date of determination of the matter which is 30 April 1999.

The next complication to the case was that when the matter was taken on appeal before the Labour Court, that court did not deal with the merits of the case.

Instead the Labour Court only referred to the issue as follows:

“The Labour Relations Officers (LRO) who heard the application found the respondent had not falsified an entry but that the discrepancy was an oversight”.

The Labour Court did not itself make any finding but merely referred to the finding of the labour relations officer without considering or assessing its correctness in view of the evidence in the record.

On the issue of jurisdiction, the appellant was adequately empowered by s 141 of the Act to dismiss the respondent from employment. It did not dismiss her. Instead, it referred the matter to the labour relations officer.

If it had dismissed her, setting aside the labour relations officer’s determination that would be the end of the matter.

The referral of the matter to a labour relations officer was not fatal to the matter either.

At the time this matter arose, there was provision for a labour relations officer to entertain matters referred to a labour officer by the parties.

Section 93 of the Labour Relations Act [Cap 28:1] provided as follows:

”POWERS OF LABOUR RELATION OFFICERS

(1) A Labour Relations Officer, acting on his own initiative to redress any dispute or unfair practice or upon reference to him by any person of a dispute or unfair labour practice –

(a) …;

(b) after giving both parties an opportunity to submit representations orally or in writing, may make such determination in respect to the dispute or unfair labour practice as may be just in the circumstances; or …

(c) …;

(d) …;

Provided that, where –

(i) …

(ii) the parties to the dispute request it and are agreed on the issues in dispute, the Labour Relations Officer may determine the dispute or unfair labour practice or refer it to compulsory arbitration, as the case may be.”

In view of the above, I am of the view that this was an alternative procedure which the appellant chose to follow.

It is notable that when the matter went to the Labour Court the merits were not argued. The Labour Court did not deal with them but dealt only with the technical point that was raised.

There was a need for the Labour Court to consider the merits instead of only endorsing the labour officer’s determination.

This matter started in 1998 which is now more than seven years ago.

It would have been more appropriate to remit the matter to the Labour Court to hear the merits and conclude the matter.

However, it appears no good purpose will be served by doing so since the record shows clearly that the respondent admitted her wrong doing, and the Act shows on s 141 that the appellant was entitled to dismiss the respondent from employment once the misconduct was proved.

There is no point in referring the matter back to the Labour Court to hear merits in the circumstances when the respondent’s guilt is obvious and admitted.

The matter has to be brought to finality.

1. The appeal succeeds and it is granted.

2. There will be no order as to costs.

CHIDYAUSIKU CJ: I agree.

GWAUNZA JA: I agree.

Honey & Blanckenberg, appellant's legal practitioners

Muvingi & Mugadza, respondent's legal practitioners