The recently fired Gweru City Council Town Clerk Ms ElizabethGwatipedza has appealed to the High Court against her dismissal by council and withdrawal of her benefits, it has been established.
According to reliable sources at Town House, council lawyers accompanied by acting Town Clerk Vakayi Chikwekwe and Ms Gwatipedza appeared before Bulawayo High Court judge Justice Maxwell Takuva in his chambers on Friday.
“Council lawyers and Ms Gwatipedza appeared at the High Court last week and the matter was postponed to a later day after the judge noted that the council was supposed to wait for the Local Government Board to determine her fate before withdrawing benefits,” said the source.
It is alleged that the acting town clerk immediately ordered after council’s decision to adopt recommendation of the disciplinary committee to fire Ms Gwatipedza, ordered the withdrawal of benefits which the suspended town clerk was enjoying.
Gweru Mayor Councillor Josiah Makombe confirmed the development but refused to shed more light on the High Court case.
Ms Gwatipedza was found guilty on two counts of wilful disobedience to a lawful order and gross inefficiency by a disciplinary committee.
A special full council was held recently which resolved to adopt
recommendations to dismiss Ms Gwatipedza who was suspended on 15 October 2019 on charges of negligence of duty, incompetence and mismanagement. Council appointed Mr Melusi Moyo of Dube-Banda, Nzarayapera legal practitioners to preside over the disciplinary hearing.
Part of to the judgement signed by Mr Moyo which was adopted by council last Friday reads, “parties filed written submissions in mitigation and aggravation to enable me to consider the appropriate penalty following conviction of the town clerk on 18 November 2020 on the charge of wilful disobedience to a lawful order and of gross inefficiency in the performance of her duties. Gweru City Council takes a serious view of the offences. It has thus prayed for dismissal of the town clerk. The town clerk on the other hand prays for a lenient, educational sentence.
“It is trite wilful disobedience to a lawful order justifying dismissal of an employee must be such disobedience as to be likely to undermine the relationship between the employer and the employee, going to the root of the contract employment. The test whether the employees’ wilful disobedience is a breach going to the root of the contract is an objective one”, said Mr Moyo.
During the hearing Ms Gwatipedza urged that there is no specific provision in the Urban Councils Act which obliges her to take orders from the Mayor and as a matter of law and practice, she acts through council resolutions and as a lay person, she didn’t believe she had to comply with the Mayor’s instruction but she nevertheless complied
She further urged that in the context of contracts of employment for heads of department, there was no evidence led as to why such contracts were being requested.
“I have already found that all the elements of this charge were met and the question that arises is whether the disobedience is such that it is likely to undermine the employment relationship between the parties. In other words, is it serious to such an extent that it goes to the root of the contract? “The factors that should be weighed against the mitigating factors submitted by Gwatipedza include the fact that the contracts of employment had been requested by the Mayor who heads a council comprised of new councilors. These councilors were not part of Gweru City Council when she was employed and they were thus entitled to know her conditions of service”, said Mr Moyo.
As regards to the charge of gross inefficiency, evidence showed that the heads of departments were incompetent in some cases and it emerged that she did not play her part to the level expected under section 136 of the Urban Councils Act. Town Clerk’s duties include supervising and controlling the activities of council employees, managing the operations and property of council and proper administration of council, among others. “What is also concerning is that the gross inefficiency manifests itself on several occasions and the first case in point is on failure to take steps to comply with the audit cycle
Mr Moyo recommended to council that findings of the disciplinary authority-in their entirely without any amendments and dismissal of Ms Gwatipedza from the employment of City of Gweru be adopted by Council with immediate effect.
He also recommended that council notifies Ms Gwatipedza of her dismissal from Council employment and that council notifies the Local Government Board about dismissal of Ms Gwatipedza as the Town clerk of City of Gweru.