Stella Shonhiwa v City of Harare

IN THE LABOUR COURT                    JUDGMENT NO. LC/H/70/2013

HARARE, 1 MARCH, 2013                  CASE NO. LC/ORD/H/110/2012

In the matter between



STELLA SHONHIWA                        -              Applicant
And

CITY OF HARARE                         -              Respondent



Before The Honourable B.T. Chivizhe: President


For Applicant      -      Mr. S. Katsuwa - Unionist

                          Harare Municipality Workers’ Union



For Respondent     -      Ms A. Zvoutete – Principal Legal Officer

                          Legal Division –Town House




CHIVIZHE, B.T.:


      The application was placed before me as a Chamber Application for an

order compelling the Respondent to release to the Applicant the documents

and determination relating to Applicant’s disciplinary case failing which the

Respondent was to be ordered to reinstate the Applicant.             In the event of

reinstatement being no longer an option, the Respondent was to in the

alternative pay Applicant damages in lieu of reinstatement.



      The facts on which the application is premised have been outlined in

Applicant’s papers to be as follows;
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The Applicant was employed by the Respondent as an Operator 2 on 24

November, 1993. The Applicant stopped reporting for duty on 10 February,

2009. She submitted that when she reported for duty sometime in February,

2009, she was served with a Department Memorandum dated 23 February,

2009 by the Human Resources Director (Copy furnished). The memo contained

a directive to all department heads not to accept back to work employees who

had not been reporting for duty pending their disciplinary cases. On the basis

of this memo the Applicant then went home. There was no disciplinary hearing

conducted by the employer.         On 7 June, 2012 Applicant wrote to the

Respondent requesting for production of the documents pertaining to her

disciplinary case. There was no response to the letter. The Applicant then filed

the present application with the Labour Court. In her relief she seeks for the

Labour Court to compel Respondent to release the documents and

determination if any in her disciplinary case failing which Respondent should

reinstate her to her original position. In the alternative, if reinstatement is no

longer an option the Respondent should pay damages in lieu of reinstatement.



      The Respondent is opposed to the application. It has been submitted by

Respondent in its heads that the Applicant stopped reporting for duty on 10

February, 2009.    The Respondent had written a letter dated 6 May, 2009

instructing her to resume duty (copy attached). The Applicant had defied the

instruction and continued to absent herself. The Applicant had then written a

letter in 2012 requesting for documents pertaining to an alleged disciplinary

case. The Applicant then filed the current application with the Labour Court.

The Respondent took a point in limine that the matter was prematurely before

the Labour Court.      The relevant code provided for grievance handling

procedures which the Applicant should follow. The Respondent recommended




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that the matter should be referred to the council/Appeals Committee set up

under the relevant Code for conciliation.



      The Applicant has not indicated on which provisions of the Labour Act

[Chapter 28:01] or Rules the present application is filed. This would ordinarily

constitute sufficient ground for dismissing the application.



      I shall however address the point in limine:

The commencement of disciplinary proceedings under the relevant Code that is

the Collective Bargaining Agreement; Harare Municipality Undertaking

(Code of Conduct and Grievance Handling Procedure) Statutory Instrument

17 of 2007 is through suspension provided under Part VI. The Applicant in her

papers has sought to argue that she was on the basis of the memorandum

issued by the Respondent on 23 February, 2009 suspended and that the

suspension was unlawful as it exceeded the 14 days outlined in the Code. On

that basis the Applicant is asking the Court to, taking into account that the

suspension was unlawful, order that she be reinstated to her original position.

It is clear from the facts in this case that the Applicant was never suspended

much less so arraigned for disciplinary hearing.



      The argument by the Applicant that the Memo issued amounted to a

suspension as it effectively barred her from reporting for work cannot be

sustained. A suspension as provided under the Code of Conduct has to be by

way of a letter handed individually and has to stipulate conditions under which

the employee is placed on suspension for example, whether it is with or without

salary.   It must outline the offence, and the period of suspension and the

effective date of the suspension. In the absence of an actual suspension letter,

the Court cannot accept arguments that Applicant has been placed on


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suspension by the Respondent through the memo issued on 23 February, 2009.

On its part, it was not disputed by the Respondent that such a memorandum

had been issued. It was however not explained to the satisfaction of the Court

by the Respondent as to why the particular memorandum was issued.



      The Respondent has suggested that the matter be remitted to the

Council/Appeals Committee set up under the Code for that body to seek to

resolve the dispute between the parties. The Applicant is however disinclined

to appear before that body. No convincing reasons were tendered for the

reluctance by the Applicant.



      It is clear that in the circumstances where the Applicant has not been

placed on suspension and is not facing disciplinary proceedings then the only

other option under the Code of Conduct is for her to utilize the grievance

handling procedures.       Needless to point out the relief that she seeks is

consequently not available to her. The Council/Appeals Committee to which the

matter is to be referred according to the Code of Conduct has both Appellate

and review powers. The Applicant will thus be skipping 5 (five) stages under the

grievance handling procedures.      This would in my view ensure a just and

speedy resolution of the matter. Should the Applicant be dissatisfied with that

body’s determination the matter can then be referred to an Arbitrator and

consequently the Labour Court.      The Applicant can only be encouraged to

exercise her rights under the Code of Conduct by pursing the grievance

handling procedure. The Respondent having already made a concession to

having the matter dealt with at Stage 5 of those proceedings, the Applicant is to

approach directly the Council/Appeals Committee for a resolution of the matter.

In the circumstances the point in limine is upheld. The matter is prematurely

before the Labour Court.


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       Accordingly the application is dismissed with no order as to costs.




CITY OF HARARE LEGAL DIVISION – RESPONDENT’S LEGAL REPRESENTANTIVE




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