City of Harare v Ephraim M Muvuti

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/416/2013
HARARE ON 4th SEPTEMBER &
CASE NO. LC/H/501/2012
13TH SEPTEMBER 2013
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/416/2013

HARARE ON 4th SEPTEMBER & 		 	CASE NO. LC/H/501/2012

13TH SEPTEMBER 2013

In the matter between

CITY OF HARARE				-		Appellant

Versus

EPHRAIM M MUVUTI				-		Respondent

Before The Honourable L Hove, Judge

For Appellant   : Mrs R P Chimenga (Legal Officer)

For Respondent  : Mr L Seremani (Unionist)

HOVE J:

The facts of this matter are largely undisputed. They are that the respondent was employed by the appellant on 17 January 1995 as an Administrative Officer (training).

At the time of his employment, he furnished with the employer a birth certificate which indicated that he was born on 15 August 1945.

On 28 February 2009 the employer gave the respondent notice that he would be retired on 15 August 2010, when he would have attained the age of 65.

On 28 October 2009, the respondent submitted an affidavit in which he averred that he was actually born on 15 August 1952 and not in 1945 as per his birth certificate which was in the employer’s records. He alleged that there was a mistake on his birth record.

He submitted an affidavit together with another birth certificate which gave his date of birth as 15 August 1952.

The employer carried out an investigation and enquired with the office of the Registrar General. The Registrar General’s Office responded and advised the employer that the birth certificate which had been submitted together with the affidavit by the respondent was a fake document and had not been issued by the Registrar General’s office. This was on 15 February 2010.

The employer rejected the new birth certificate as the Registrar General’s office had advised that it was not an authentic document.

On 31 August 2010, the employer retired the respondent on the strength of the initial birth certificate. The respondent was aggrieved and challenged the employer’s decision to retire him. He argued that he had not attained the age of 65. He insisted that there had been a mistake in recording his date of birth.

The matter was heard by an arbitrator. After the hearing before the arbitrator but before he gave a ruling, the employer had knowledge that actually the respondent had been convicted in a criminal court for fraud in relation to the fake birth certificate. He was fined $100-00 or 30 days imprisonment. They filed supplementary documents bringing to the arbitrator’s attention the criminal conviction.

The arbitrator refused to accept this further evidence and found that the respondent had been unfairly retired since he had not attained the age of 65 at the time of his retirement. The award was handed down in June 2012.

In the meantime, the respondent had approached the Registrar’s office and obtained another birth certificate giving the date of birth as 15 August 1952. This one was not disowned by the Registrar’s office as had been the case with his initial 1952 birth certificate but the problem was that this new birth certificate was issued by the Registrar on 25 March 2011 well after the respondent had been retired on 15 August 2010.

The question that arises is whether or not the employer, in retiring the respondent on 15 August 2010, acted unfairly and wrongfully.

I do not think that you can impute any wrong doing on the part of the employer. He had, in his records, a birth certificate which the respondent himself had furnished. This birth certificate showed that the respondent had attained the age of 65. The new birth certificate which was submitted to the employer to prove that he had been born in 1952 was not authentic in that it had not been issued by the Registrar General’s office. The record that the employer had as at 15 August 2010 was that the respondent had turned 65. The contract between the parties provided that on attaining the age of 65, the respondent would be retired. The respondent had indicated that the birth certificate had an error but then the new birth certificate submitted was a forged document in the circumstances of those facts, the employer was well within its rights to retire the respondent.

The second new birth certificate was only issued by the Registrar after the respondent had already been retired.

In the circumstances, I agree with the appellant that the arbitral award was grossly unreasonable and that he erred in finding as he did that the respondent had been unfairly or wrongfully retired.

He can only produce his new birth certificate before the employer again and re-engage the employer in view of the latest birth certificate, otherwise in retiring him in 2010, the employer did not act wrongfully.

In the premises, the arbitrator’s decision is set aside and the employer’s decision to retire the respondent is upheld.

HOVE J

Judge – Labour Court