ZESA Enterprises managing director Mr Tererai Luis Mutasa, who was dismissed from the Zesa Holdings subsidiary in 2019, has won his appeal to reverse dismissal from employment, after a five-year-old bruising legal combat with the company.
He is now set for reinstatement or amicable separation if he is no longer required, with a hefty package coupled with damages.
The Supreme Court found the one major charge on which he had been dismissed arose from a previous and subsequently terminated contract of employment, and so could not legally have been resuscitated for a terminating a second contract.
The other charge, two trivial payments made out of petty cash, had not been made by Mr Mutasa.
Mr Mutasa's victory follows an appeal against the July 2021 Labour Court judgment dismissing his appeal against the decision of the company disciplinary authority which convicted him of two counts of misconduct and fired him from employment.
Mr Mutasa was appointed to the position of managing director in May 2010 following successful interviews.
After serving in that position for some time, he was placed on indefinite leave in April 2013. He remained on forced leave until September 26 2013 when he was officially retrenched from employment.
He was later re-hired in February 2014 following successful interviews, resulting in him being appointed again to the managing director position of the company. This time he was made to sign a four-year fixed term contract to run up to February 28 2018. On expiration of his contract it was tacitly renewed for a further four-year period as there was a forensic audit which was taking place.
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The audit report was produced in January 2019 and it raised concerns leading to Mr Mutasa being charged with nine counts of misconduct. And after a protracted disciplinary hearing, the disciplinary authority convicted Mr Mutasa on only two: of making an advance payment of US$9,5million to an Indian company known as PME Power Solutions (India) Limited, contrary to the terms and conditions of that company's contract with Zesa Enterprises. He was also convicted on a count related to authorisation of donations of US$200 to police, Harare South District, and US$100 to the police public relations programme. Following his conviction on those two counts and acquittal on the remaining seven counts, Mr Mutasa was fired from employment.
He unsuccessfully appealed at the Labour Court prompting him to appeal to the Supreme Court raising several grounds to impugn the decision of the lower court. After hearing both parties" counsel, the bench of Justice Nicholas Mathonsi, Justice Samuel Kudya and Justice Joseph Musakwa unanimously upheld the appeal by Mr Mutasa ruling that the employer cannot discipline an employee for misconduct which occurred during the lifespan of an already terminated contract. "The appeal is allowed with costs," said Justice Mathonsi, setting aside the Labour Court judgment and substituting it with a verdict of not guilty and acquittal of all the charges of misconduct.
"The appellant is reinstated with no loss of salary and benefits with effect from the date of dismissal," said the judge. "If reinstatement is no longer possible, the appellant shall be paid damages in lieu of reinstatement to be agreed or quantified by the court."
