Mashudu Netsianda, Senior Reporter
FIRED Gweru Town Clerk Ms Elizabeth Gwatipedza has taken Gweru City Council (GCC) and Local Government and Public Works Minister July Moyo to court challenging her dismissal.
Ms Gwatipedza was suspended in October last year for an act of misconduct before she was subsequently dismissed on December 2 following a disciplinary hearing.
Following the termination of her contract, council terminated her salary among other benefits.
Ms Gwatipedza, through her lawyers Mutatu Legal Practitioners, filed an urgent chamber application at the Bulawayo High Court citing GCC and Minister Moyo as respondents.
She said her dismissal is invalid. Ms Gwatipedza wants an order interdicting GCC from implementing the decision passed by the disciplinary authority on December 2, 2020 to have her fired before it is confirmed or ratified by the Local Government Board in terms of the law.
Ms Gwatipedza also wants the council to be barred from withdrawing her salary and other benefits that she was entitled to at the time of her dismissal.
In her founding affidavit, Ms Gwatipedza said it was unlawful for GCC to act on the disciplinary authority’s recommendations without the approval of the Local Government Board.
“I was employed as a Town Clerk of the first respondent (GCC) for three years until on the 14th of October 2019 when I was suspended pending a disciplinary hearing.
I was charged for acts of misconduct and formal charges were preferred against me on 24th October 2019 and the suspension was without salary and benefits,” she said.
“As a result, I challenged my suspension through my legal practitioners and my salary and benefits were restored. The disciplinary hearing was conducted from October 30, 2019 to September 30, 2020 and I was found guilty and convicted.”
Ms Gwatipedza said submissions in aggravation and mitigation were made and on December 2 she was dismissed from employment from the date of suspension.
Ms Gwatipedza said the acting Town Clerk Mr Vakai Douglas Chikwekwe instructed the chief security officer not to deploy security at her residence citing her dismissal.
“Of concern is that on December 4, I was surprised when my security guards and gardener did not turn up for work. I then called them to enquire as to why they didn’t report for work and they advised me that they had been ordered by the council’s chief security officer not to report for work,” she said.
“The disciplinary authority’s decision to dismiss me is invalid as his duty is only to recommend a penalty to the council, and thereafter the council must then notify of its decision to terminate the contract.”
Ms Gwatipedza said the disciplinary authority’s decision to terminate her contract was unlawful.
She argued that she can only cease to be Gweru Town Clerk once the Local Government Board has approved her dismissal.
“The conduct of the disciplinary authority is unlawful. It should have made a recommendation to the Local Government Board which can approve or reject the termination of the contract rather than merely deciding to terminate it, a decision which is detrimental to me,” said Ms Gwatipedza.
“I have prima facie right as an employee of the first respondent to assert my rights as provided in terms of the law. Since my contract has not been lawfully terminated, I am still an employee of the council and therefore entitled to my salary and benefits.”
Ms Gwatipedza also wants the council to be barred from recruiting a substantive Town Clerk before the confirmation of the decision of the disciplinary authority by the Local Government Board.
GCC through its lawyers, Mbidzo, Muchadehama and Makoni Legal Practitioners, opposed the application, arguing that the Supreme Court has determined that the High Court has no jurisdiction in labour issues and employment.
In his opposing affidavit, Mr Chikwekwe said it was prudent for the court to decline to exercise jurisdiction in the matter, arguing the withdrawal of contractual entitlements is a consequence of a dismissal.
“Until the lawfulness of that dismissal is successfully challenged, there can be no basis for interdicting their withdrawal. There is no basis for suggesting that a dismissed employee must continue enjoying her contractual benefits,” he said.
“The dismissal in terms of Statutory Instrument 15 of 2006 has the effect of terminating the employment relationship. The consequence for that termination is loss of all contractual entitlements.
So, the applicant has lost such entitlement in terms of the law and the court has no power to stop the operation of the law.” — @mashnets