The National Social Security Authority has obtained a stay of execution in the case where a former employee had obtained a default judgment, which entitled him to attach property worth over $600 000.
This also comes amid indications that the newly appointed Minister of Public Service, Labour and Social Welfare Patrick Zhuwao had directed NSSA and the former employee, Chikuni Mutiswa to resolve their differences in a manner which will ultimately result in his reinstatement.
Mutiswa was appointed NSSA’s Chief Strategic Assets Officer in July last 2016 together with chief investment officer Herbert Hungwe and chief property investment Officer Kura Chihota.
The three however had their probation extended by a further three months upon expiry on December 31, 2016 but Mutiswa turned down the extension. He was then summarily dismissed early January after he refused an ‘extension’ of his six month probation.
In his application at the High Court under case number HC2047/ 17, Mutiswa pointed out that in terms of the Labour Act, the maximum allowable probation was a
To Page 2
From Page 1
single period of at most of three months. Accordingly the six months was unlawful as was the purported ‘extension’, which was also a unilateral variation of the three year contract he had signed with the authority.
He also said that not a single evaluation of his performance was done during his probation, contrary to the law, and as such how could it then be claimed that he had not performed when he had written evidence of glowing praise he had received on a number of occasions from both the Chairman, Robin Vela and the Human Resource Committee. According to a letter, the Human Resources Committee of the NSSA board cleared Mutiswa. The Committee noted that he was well qualified for the role of Chief Assets Officer. “
The incident has proven to be an embarrassment for Chairman Robin Vela, who purports to always act in the best interest of workers.
NSSA is now being represented by Mutamangira and Associates after dumping Dube, Manikai and Hwacha who had advised them to settle the matter out of the court as they were in clear breach of labour laws.
A legal opinion by labour lawyer Munyaradzi Gwisai also said the extension of the contract, which was an unfair labour practice was in blatant disregard of well stated laws.
It also amounted to unilateral variation of the employment contract, which was against the principles if contract laws. “There was no written agreement extending the probation period signed by both parties. Even parties in the matter were to mutually agree to the extension of the probation, such contract would be against a clear express provision of the Labour Act. The termination was unilateral. This is so because the reason for termination was that you refused the proposed illegal extension.”
Well-placed sources told Business Weekly that Mutiswa met Minister Zhuwao who encouraged him and the NSSA executive and board to resolve the matter away from the courts and at low cost to the authority.
This publication understands that after various meetings between NSSA management and Mutiswa, the issue of reinstatement was tabled before the board of directors. “The board met on Monday where the resolution to reinstate Mutiswa was tabled. However a decision is still to be made. What I can tell you is that if a decision is made it will be tabled to the minister and the board will stand guided thereafter,” said an inside source.
Sources who spoke to Business Weekly said it is embarrassing for an institution of NSSA’s calibre to make such a costly boob.
“One would expect NSSA to follow expert and professional legal council in material matters such as these and not risk losing out in the courts of law. One would also expect NSSA to have competent human resources personnel and even on the board of directors to give proper advise when dealing with labour issues.
“It is embarrassing and erodes confidence when employees with lesser resources to invest in legal council to end up winning cases against a bigger institution like NSSA, the custodian of pensioner’s funds. An organization such as NSSA, which has lost pensioners funds in the past through questionable investments, is expected to do things by the book and not risk pensioner’s funds.”
In its heads, filed Mutamangira and Associates, NSSA said Mutiswa erroneously obtained default judgment by snatching “a judgment in a manner that is not only reprehensible but smacks of opportunism and a lack of decorum.”
“The first respondent (Mutiswa) knew that its matter was hotly contested and involved an inordinately high sum of money; and further the first respondent was aware that the applicant (NSSA) was of the strong view that he was not entitled to relief.
“Regardless of this knowledge the first respondent obtained default judgment. Even of the first respondent was of the view that the applicant was out of time in filing its special plea such situation required the first Respondent to engage the applicant’s legal practitioners and notify them of any error it perceived to have been committed.
“To simply proceed to obtain a default judgment where it is clear that the opposing party is not in wilful default, is not in keeping with our law,” argued the national pension fund.
NSSA argued that the fact that the default judgment was obtained in a manner that was reprehensible “emboldens the Applicant’s prayer for urgent relief. “This is a matter that ought to see the grant of the interims stay pending the return date,” NSSA.
In seeking the stay for execution, NSSA said the consequences of any failure to afford instant relief were.
“The respondents brought into execution the order obtained in default, which will have the effect of not only crippling the operations of the applicant but will also see retirees and beneficiaries of NSSA denied their monthly pay-outs and annuities. It cannot be denied that removing and executing on the applicants property will cripple the national institution.”