Too hot to handle – Court declines to hear case between Central Intelligence Organisation and employee

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Labour Court judge Justice Bridget Tapiwa Chivizhe has declined jurisdiction in a matter involving the Central Intelligence Organisation (CIO) and an employee who was fired after allegedly signing two contracts worth over US$70 000.

Chivizhe ruled that the dispute was not for him to handle because it involved a disciplined force.

The employee, Cloddie Shumba took the matter to the Labour Court after a disciplinary committee found him guilty and demoted him.

Shumba was employed as a Divisional Intelligence Officer and allegations were that he had signed two contracts on behalf of the CIO with Leggim Enterprises worth US$48 978.76 and US $28 124.20 for the construction of a store room and water and oil separator without authority from the Chief Procurement Officer (CPO) PIO Nicholas Rgwambiwa.

He was also accused of awarding a fix and supply contract to the aforementioned company in contradiction to an explicit instruction by the CPO to only purchase construction material and have the renovations undertaken by the CIO Material Resources Management (MRM) Artisanal Section.

Chivizhe struck the matter off the roll, ruling in favour of the CIO which had challenged Shumba’s application on grounds that their organisation falls under the disciplined force as such the Labour court had no jurisdiction to hear the matter.

“After considering the parties submissions and the authorities as referred to by them it is the court’s finding the point (by the CIO) is clearly merited.

“It is generally accepted that the Labour Act applies to all employees except those expressly excluded by the Act.

“This is apparent from a reading of section 3(3) of the Act which is referred to as supra. Section 3(3) clearly excludes the application of the Labour Act on members of a Disciplined Force of the State.

“It has also not been contested by the appellant that the respondent (CIO) falls in the category of a Disciplined Force.

“The arguments as presented by the appellant (Shumba) are not persuasive at all,” said the judge.

Chivizhe ruled that the argument that the interpretation of section 3(3) can be anything other than the one ascribed to above was flimsy.

“It also clearly flies in the face of precedent which binds this court.

“In conclusion, it is clear that, in the circumstances of this case, the court’s jurisdiction having been clearly ousted through section 3(3), the court cannot purport to clothe itself with jurisdiction as this has fatal consequences to the proceedings.

“The present appeal, not being properly placed before the court, it be and is hereby struck off the roll with costs,” she ruled.

The conduct by Shumba, according to the disciplinary hearing findings, violated paragraphs 3,4,13 and 18 of the First Schedule of the Code of Conduct for the Department of State for National Security which includes abuse of authority among other things.

Shumba denied having failed to apprise PIO Rgwambiwa of the project’s progress and highlighted that he periodically furnished his superior with all the work updates for quality control.

By doing so, he pointed out that he expected that the CPO would instigate the necessary checks and balances on his submissions, considering he was still on probation.

The Disciplinary Committee having perused the documents availed to them however found him guilty of the charges levelled against him.

Aggrieved he mounted the present appeal arguing that the committee grossly erred on the facts by finding that he had actioned the construction of a new store room and oil and water separator without approval when in fact the project was approved by his superiors.

He also argued that he was wrongly found guilty of negligence and that failed to regularly update his superior when that finding is contrary to the evidence.

Shumba submitted that his employer failed to apply the principle of parity in punishing him through a demotion when it meted a warning to other employees charged under the same set of facts which warning would have sufficed.

The CIO successfully argued that in section 3.3 of the Labour Act, the action shall not apply to disciplined categories including the military, air or naval force, police force, prison force and persons employed in the President’s office on security duties.