Rusape Town Council ordered to reinstate engineer

Court Reporter
THE High Court has ordered the reinstatement of a Rusape Town Council employee, Engineer Lazarus Mabvira, who was controversially sacked with full benefits in 2009 alongside other senior managers. The return of Eng Mabvira will put the council, which is coming out of the woods, on its knees by forking out at least $80 000 in quanta, as it cannot employ two engineers.

Justice Kudya ruled that proceedings leading to Eng Mabvira’s sacking were littered with errors, which could not be sanctioned.

“It is ordered that the applicant be reinstated without loss of pay and benefits from the date of suspension, alternatively that he be paid damages in place of reinstatement in a quantum to be agreed upon by the parties or be set by the court on application of such quantification,” ruled Justice Kudya.

Eng Mabvira was suspended on August 18, 2009 on charges that he violated the Code of Conduct, misused cement meant for council operations, had allowed a bus to be parked in the CDB against council policies, that he drafted an enforceable agreement resulting in council losing funds and he lied to a special council meeting that certain persons were part to that meeting when that was not the case.

He was also accused of signing a land swap deal without a council resolution as well as recommending the sale of non-existent land.

He was found guilty of the infractions and consequently dismissed from employment on September 24, 2009.

Initially the Local Government Board, which approves the hiring and sacking of senior council employees, had declined to approve the dismissal, citing irregularities in the handling of the matter.

Surprisingly, the same board, on February 28 2011 went on to confirm the dismissal it had initially rejected, prompting the council to dismiss Eng Mabvira from the date of his suspension.

An aggrieved Eng Mabvira challenged the dismissal at the High Court on grounds that the disciplinary committee was improperly constituted and biased against him; that the procedures were a nullity since one of the members declared interest at the end of the proceedings, instead of at the beginning.

He also argued that the decision to fire him was availed to him 19 months later instead of the 14 days required by law; complained of being penalised without being given a chance to submit in mitigation and that the appeals committee refused to hear his appeal saying it was functus officio yet it had not at any stage called him to make representations on the alleged appeal and that he was also denied the record of proceedings of the appeals committee. These grounds were upheld by the court, leading to the quashing of his dismissal.

“It is apparent that presence of the member was to participate in the decision making of the matter. If he sat as is alleged and only declared his interest at the end of the proceedings that indeed went contrary to the rules of natural justice.

“It is clear from a reading of the record that the decision was availed beyond the 14-day mark. The respondent, however, argues that this was so because it awaited the confirmation from the local government (board) before it could communicate the decision. It is also in respect of the local government (board) actions that the respondent erred dismally.

“As borne out by the record it is inconceivable that in one breadth proceedings were dismissed by the same body which later turns around and confirm the once dismissed proceedings.

“This speaks volumes about how the respondent bungled the whole matter and that goes to the root of the case. Consequently the court cannot confirm that proceedings were done properly in that regard. The ground also merited and should succeed,” ruled Justice Kudya.

Justice Kudya also ruled that Section 12 B (4), of the Labour Act makes it imperative that mitigation be elicited before penalty is meted out.

“Even if the court were to accept that the applicant did not so submit, it was imperative on the disciplinary body to take into account all the factors that favoured him which were at its disposal at least from the merits of the case and how he had explained each of the counts he faced.”