City of Gweru v Sylvia Moto & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MC/02/2013
HELD IN HARARE, NOVEMBER 15, 2012
CASE NO. LC/MC/60/11
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/MC/02/2013

HELD IN HARARE, NOVEMBER 15, 2012	CASE NO. LC/MC/60/11

In the Matter Between

CITY OF GWERU					       	APPELLANT

And

SYLVIA MOTO					       	1ST RESPONDENT

ERNEST NJARAVANI					2ND RESPONDENT

PETER PEDZISA						3RD RESPONDENT

Before The Honourable E. Makamure         : President

FOR THE APPELLANT     		: Mr G. Mutseyekwa (Legal Practitioner)

FOR ALL RESPONDENTS  		: Mr B. Dhanda (Trade Unionist)

MAKAMURE E.,

This is an appeal against the decision of an arbitrator ordering the appellant to reinstate the respondents or alternatively that the respondents be awarded the appropriate damages in lieu of reinstatement.  The grounds of appeal are as follows:

That the arbitrator failed to appreciate the issues before him for determination.

That he failed to conduct an inquiry as to whether there existed between Appellant and Respondents valid contracts of employment and he did not appreciate that the onus was on Respondents to prove the existence of such contracts.

That the arbitrator did not take into account and consider all the materials and authorities presented to him by Appellant.

That Respondents could not be subject to disciplinary action when their employment status was in dispute.

That in view of the overwhelming evidence presented to the arbitrator that Respondents were irregularly recruited without Appellant’s authority any decision or presumption to the contrary would be grossly unreasonable, illogical and irrational.

The facts of this matter are [as correctly summarized by the arbitrator] that the appellant wanted to fill three positions which should have been properly filled by the three respondents.  The posts were in the Chamber Secretary’s department.  The Appellant’s Chamber Secretary, one Richard Masinire (Masinire) was co-ordinating the recruitment process.  Following a tip off from a whistle blower, the appellant set up a committee which investigated allegations of corruption and mismanagement against the Chamber Secretary.  The committee submitted a report in which it was stated that the Chamber Secretary had corruptly, fraudulently and unlawfully recruited the three respondents.  In other words, had the appellant known that the three respondents had been improperly recruited it would not have proceeded to award them with contracts of employment.  It was after that report that it was resolved to terminate the respondents’ purported contracts of employment “because it had been discovered that they had been employed without its authority”.

From the above summary, it is clear that the recruitment of the three respondents was not without fault.  There was some irregularity.  The report submitted showed that there was some corruption and misrepresentation in the manner that the recruitment process was conducted.  Masinire who acted on behalf of the appellant had numerous telephonic correspondence or communication with the three respondents.  Such correspondence occurred from the time that the adverts were flighted up until the recruitment.  Some of the correspondence happened during weekends and after working hours.  The communication was too regular to be ignored.  Following those telephonic communications, the Chamber Secretary made the appointments on behalf of the respondent.  One can infer that the involvement of Masinire extended beyond the mandate he was granted by the Appellant.  Had the appellant known about the extent of the communication between the respondents and Masinire, it would have made this clear in the appellant’s  appointments.  Alternatively Masinire ought to have declared his interest in the three.  Thereafter the appointments would have been proper.  What this shows is that the offerees were aware that Appellant did not know how often or closely Masinire had communicated with the three candidates.  In the University of Zimbabwe v Gudza 1996(1) ZLR 249 it was held that:

“Where an offeror mistakenly makes an offer that is accepted by the offeree, the offeror will only be able to rescind the contract if;

The offer was induced by fraudulent misrepresentation by the offeree.

The mistake was a material one and the offeree knew or ought to have known that the offer was made in error”.

In the present matter the respondents (offerees) were found to have been involved in conduct which amounts to misrepresentation.  They were the ones who were in constant contact with Masinire.  All the respondents were aware of the nature of communication between them and Masinire.  The appellant on the other hand was not aware of this regular communication.  Had the offeror known of the offerees’ conduct, the contracts of employment would not have been awarded to the respondents.  The contracts were therefore granted in error.  It is my view that under the circumstances of this case the respondents could not be subject to any disciplinary action by the appellant because their employment status was in dispute.  The contracts were void ab initio.

I am of the respectful view that the Learned Arbitrator fell into error when he determined that there existed valid contracts of employment and that such contracts were terminated unlawfully.  There were no valid contracts of employment between the parties in view of the erroneous misapprehension under which the appellant laboured when the said contracts were granted.

I therefore find that there is merit in the appeal.

Accordingly, it is ordered that the appeal be and is hereby granted.

Danziger and Partners, Legal Practitioners for the Appellant.

Zimbabwe Urban Rural Council Workers Union, Representing the Respondent.