adminMr Masinire was dismissed in April last year after the council had levelled charges of corruption, nepotism and incompetence among other charges, against him. The local authority is said to owe Mr Masinire 16 months’ salary arrears and allowances.
Bulawayo Labour Court president, Mrs Mercy Moya-Matshanga, on Tuesday last week ordered that the City of Gweru meets all the legal costs incurred by Mr Masinire.
Mr Masinire was represented by Mr Joel Mambara, of J Mambara and Partners Legal Practitioners while the City of Gweru was represented by Mr Godfrey Mutseyekwa, of Danziger and Partners Legal Practitioners.
In her judgment, Mrs Moya-Matshanga said the City of Gweru ignored the Urban Councils Act in preference of the National Code.
“This is an appeal against the decision of the Respondent “the City of Gweru” to dismiss the Appellant for alleged various acts of misconduct. After the Respondent discovered that the Appellant was involved in various acts of misconduct involving corruption, an inquiry was held and a committee was established to look into it. Subsequently, it made its findings and referred the matter to the Local Government Board on 11 March 2011. Appellant was made aware of the decision of the Local Board and was charged in terms of the provisions of the National Code S.T 15/2006 and discharged.
Appellant argues that he was a senior member of the council and should have been charged in terms of the Urban Councils Act, Chapter 29:15 and not the National Code,” reads part of the judgment.
In its submissions, the City of Gweru had argued that the matter was not supposed to be heard before the Labour Court and that the court had no jurisdiction to entertain it.
Since it was dealt with in terms of National Code, the City Council further argued it should have been referred for reconciliation and then arbitration if the need arose.
It was also argued further on behalf of the respondent that the matter was not properly before the court because domestic remedies had not been exhausted as pointed above.
Further, the Appellant was way out of time in his appealing against the Local Government Board’s verdict to dismiss him, the council argued.
It is alleged the disciplinary committee had finalised the proceedings against Mr Masinire on 18 March last year in the presence of his legal practitioners yet the appeal was only noted nine months later on 10 October.
The city council said in its submissions that Mr Masinire failed to comply with the Labour Court Rule S.I 59/06 which states that an appeal should be noted within 21 days of that decision.
Mr Masinire argued in response that he was properly before the court.
He said while the committee made a decision it only sought the approval of the Local Board on 29 July 2011. On 9 September, he said the board sat and passed a resolution to dismiss him.
Mr Masinire said he only became aware of the board’s decision on 12 September and immediately appealed on 10 October and he was within time.
Mrs Moya-Matshanga made reference to other similar cases, one between Samuel Mwaaka Mukundu and Mutasa Rural District Council, another between City of Harare and Lesley Gwindi and City of Mutare against one Matamisa, highlighting how all the above cases were handled.
She said from the above cited examples, it was very clear that while it was a respected view of the law that almost all termination of contracts of employment are done in terms of the Labour Act, where an enabling Act (code of conduct) governing a particular organisation has specific provisions relating to the discharge of senior employees of that organisation then the National Labour Laws are not applicable.
The Labour Court president said it then followed that since Appellant was charged in terms of the National Code, yet as a chamber secretary of a council, he is governed by Urban Councils Act, he should have been dismissed in terms of that Act with approval from the Local Board. The charges based on the National Code are not applicable and any proceedings based on them are therefore a nullity, she said.
“I am of the view that by virtue of the fact that the Urban Councils Act was ignored and the National Code used instead, all the proceedings became a nullity and I hereby allow the appeal with costs,” said Mrs Moya-Matshanga.
An elated Mr Masinire on Monday told Chronicle that justice had prevailed following the verdict for council to reinstate him.
He said all the charges raised against him were just a “smokescreen” meant to camouflage the real issues between him and the Town Clerk.
“This whole thing is all about personal differences with my senior, the Town Clerk Mr (Daniel) Matawu.
The other senior members were just roped in, in a war that they never applied for. Even councillors do not know exactly what was happening, if you ask them. Mr Matawu is determined that I should go despite that nothing wrong was done to the council. Recruitment was done over board; the people that I employed had the requisite qualifications. The story should have been Matawu, not council fires Masinire. I have been battered for nothing,” said Mr Masinire.
Mr Matawu declined to comment arguing that the matter was internal and purely a disciplinary matter.
He said it was also not proper for him to say anything on the matter before briefing councillors at a council meeting.
“The issue should go through council first. We don’t rush to papers on internal matters involving our staff,” said Mr Matawu.
Online Reporter