Godfrey Tanyanyiwa v Chitungwiza Municipality

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/88/13
HELD AT HARARE 12TH MARCH 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/88/13

HELD AT HARARE 12TH MARCH 2013			CASE NO LC/REV/H/29/12

AND 11 OCTOBER, 2013

GODFREY TANYANYIWA					Applicant

CHITUNGWIZA MUNICIPALITY				Respondent

Before The Honourable G Musariri, President

For Applicant		Mr P Mabundu, Attorney

For Respondent		Mr R Matsikidze, Attorney

MUSARIRI, G:

This is an application for review.  The grounds  for review stated that,

“Grounds Of Review

2.1	The suspension of Applicant and any subsequent proceedings thereafter is a nullity as it is not in terms of the applicable registered Code of Conduct read together with the Urban Councils Act.  It was improper for the employer to use the National Employment Code of Conduct.  S.I. of 2006 given that there is an applicable registered code of conduct for Chitungwiza Municipality.   Respondent is estopped at law from forum shopping codes of conduct.

2.2	it was grossly unreasonable and irrational for Respondent to suspend the Applicant in terms of S.I. 15 of 2006 when there is in existence a registered Code of Conduct applicable.  Such a decision is so outrageous in tis defiance of logic that no sensible employer applying his mind to the question to be decided could have arrived at it/

2.3	The respondent does not have jurisdiction to discipline the Applicant in terms of S.I. 15 of 2006.”

Applicant sought nullification by this Court of both his suspension and the subsequent disciplinary proceedings.

Respondent’s case is concisely set on in its Supplementary Heads thus,

“5.	It is respectfully submitted that the argument in question with its plethora of case authority in support is not applicable herein.  The following arguments makes the above argument not sustainable at law:’

5.1	The Respondent’s Code of Conduct does not apply to Appellant and does not provide for mechanism to discipline the Appellant.

5.1	The Appellant’s application for review did not suspend the proceedings underway and for that reason, they ought to have appeared.

5.3	The Appellant waived its (sic) right to defend self at law by no appealing (sic) before the disciplinary authority and raise the objectives (sic) or preliminary points if any.”

Respondent prayed for the dismissal of the application with costs.

Respondent has a registered Code of Conduct (hereafter called the Code).  Under section A paragraph 2 the Code provides that it will apply to all employees, non managerial and managerial.  Such wording apparently included Applicant who was employed as the Clerk.  The disciplinary procedure

is set  out under Section E.  It provides for a Board of Inquiry in the following terms,

“2.	The Board of inquiry shall be composed of-

Equal representation of Senior management and workers committee.

Provides that where Head of Department or Deputy is being disciplined  Council shall appoint an investigating committee.  All managers below the Deputy Head shall be the responsibility of the Board of Inquiry.”

No mention is made of the Town Clerk.

No other provision is made in the Code for the discipline of senior management.  It was common cause that the Town Clerk sits at the apex of organogram of Respondent’s employees.  The Heads of Department report to him.  He in turn reports to Respondent’s Council apparently through the Mayor.  This effectively means that no provision exists in the Code for the

discipline of the Town Clerk.  This situation is analogous to the situation that pertained in the matter of Samuriwo v ZUPCO 2000 (1) ZLR 647 (S) where Gubbay CJ (as he then was) stated that, at P 651 G,

“I must repeat that is seems to me highly improbable that the drafters of the code of conduct would have forgotten, were it ever so intended, to included the managing director in the hierarchy of employees to be subjected to disciplinary procedures,”

and at p652 C

“I therefore uphold the argument that the code of conduct was not framed to take into account  disciplinary proceedings against the Appellant as Respondent’s managing director.”

By parity of reasoning I am persuaded that Respondent’s Code did not apply the discipline of Appellant as Town Clerk.  Applicant’s argument that Respondent should have used its code cannot be sustained.

Wherefore it is ordered that,

The application for review is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT