By Mashudu Netsianda
Fired Gweru Town Clerk Ms Elizabeth Gwatipedza who was suing Gweru City Council (GCC) and Local Government and Public Works Minister July Moyo following her dismissal has withdrawn the matter.
Ms Gwatipedza was suspended in October 2019 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.
Bulawayo High Court judge Justice Evangelista Kabasa ordered Ms Gwatipedza to pay the legal costs incurred by the respondents.
“It is ordered that the matter is accordingly so withdrawn and the applicant is to pay the costs,” said the judge.
In papers before the court, Ms Gwatipedza argued that her dismissal was invalid. She wanted 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 wanted 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 argued that the disciplinary authority’s decision to terminate her contract was unlawful.
She further argued that she could only cease to be Gweru Town Clerk once the Local Government Board has approved her dismissal.
“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,” said Ms Gwatipedza.
She also wanted 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.” The Chronicle.