They were reinstated in November after three years on
suspension, but it was short-lived as they were arrested a few weeks back for
criminal abuse of office and defrauding the local authority of millions of
dollars.
Chingombe is human capital development director, while
Kwenda is the finance director. The decision to reinstate the pair was made
during a full council meeting held in the council chambers in November.
The reinstatement was done despite a warning that had been
issued by the Government to the local authority against reinstating officials
with pending court cases.
Last week, the Supreme Court upheld the 2018 High Court
decision rejecting the duo’s application in which they were challenging the
validity of their suspension, but ruled that the High Court was offside for
deciding the matter when it has no jurisdiction to do so.
Chingombe and Kwenda had approached the High Court seeking
a determination of which employment law was applicable to the disciplinary action
taken against them — the Urban Councils Act or the Labour Act with its
attendant Labour (National Employment Code of Conduct) Regulations, SI 15 of
2006.
But the court threw out their application on the basis that
the new Labour Act now applied to all employers and employees in this
jurisdiction except those that it specifically excludes.
The Supreme Court agreed with the lower court, saying the
city, which does not have a code of conduct for discipline purposes within the
workplace, was correct to use Labour Act to deal with the two senior employees.
Justice Anne-Mary Gowora, who penned the judgment for the
Appeals Court said the city was subject to Labour Act and had to comply with
its provisions in all respect.
The local authority, she said, did not belong to the
category of employers exempted from the application of the Labour Act.
“Thus, the city must have resort to the national code of
conduct in the resolution of employment disputes, as the Urban Councils Act was
not a code of conduct,” said Justice Gowora.
“As a consequence, the view I take is that what was before
the court a quo was an issue dealing with an employment relationship and that
is a dispute that falls for determination under the Labour Act by the Labour
Court and other structures below it.”
Justice Gowora found that the High Court misdirected itself
in assuming jurisdiction in the matter although the court came to the correct
conclusion that it was the national code of conduct that applied in the matter.
“It should have declined jurisdiction on the same basis
resulting in the matter being struck off the roll for want of jurisdiction,”
she said.
The duo had been suspended in 2017 together with then
acting town clerk Mrs Josephine Ncube, and Dr Prosper Chonzi (Health Services)
on allegations of financial abuse following a report by a tribunal set up to
investigate council’s employment costs compliance.
Chonzi has since been reinstated. Herald
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