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City retirement boob backfires

By Fidelis Munyoro

Harare City Council’s decision to withdraw the services of six top executives before their age of retirement will see it forking out millions of dollars in compensation after the Supreme Court ruled that they were unlawfully laid off.

Former Deputy Secretary of the Judicial Service Commission Justice Rita Makarau
Justice Rita Makarau

The six — treasurer Mr Misheck Mubvumbi, business development manager Mr Cosmas Zvikaramba, housing and community services manager Mr Justine Chivavaya, Urban planning services manager Mr Psychology Chiwanga, Mr Stanley Mungofa (health) and director amenities Mr Dombo Chibanda — were forced to leave employment before reaching their retirement age of 65.

Council laid off the six through retrenchment in 2014 arguing that it would save US$2 million monthly from the exercise.

However, the decision has come back to haunt council after the Supreme Court last week quashed the Labour Court ruling confirming council’s decision to retire Mr Mubvumbi, before he reached the age of 65.

Mr Mubvumbi was city treasurer until 2014 when council reduced the retirement age from 65 to 60 and he was among over 1 000 workers sent home.

In retiring the six, the city aligned the retirement age of the rest of its workers to the age fixed by the pension fund by way of Statutory Instrument (SI) 135 of 2012.

The superior court ruled that the statutory instrument applied by council to reduce the retirement age from 65 to 60 did not apply to senior managers from grade one to grade four, hence the retirement was illegal.

“It is not in dispute that SI 135-12 is inapplicable to the applicant by reason of his position,” said Rita Justice Makarau.

She said the statutory instrument applies to all employees in grades 16 to 5, but expressly excluded persons employed on grades 1 to 4.

Mr Mubvumbi was employed in a grade 2 position.

“In the result I make the following order . . . the appeal is allowed with costs,” said Justice Makarau.

“The judgment of the court a quo is hereby set aside and substituted with the following, (a) The application for review is granted with costs. (b) The decision of the respondent (Harare City Council) to summarily retire the applicant at 60 is hereby set aside.”

The appeal arose after the Labour Court in November 2-015 dismissed an application for review brought by Mr Mubvumbi against the decision by the council summarily retiring him from employment at the age of 60.

On appeal, Mr Mubvumbi, who was being represented by Advocates Regina Mabwe and Chido Mafongoya instructed by Mr Joel Mambara of Mambara and Partners, challenged council decision on the grounds that it was illegal as his contract, which he had signed with council in 1981 stated that he ought to be retired at 65, and not at 60.

In the lower court, Mr Mubvumbi argued that the actions of the council were unlawful and that he had a legitimate expectation to be retired at 65. The Herald