Stanbic Bank Zimbabwe Limited v Prodigy Chinanga and Elvis Mudzengerere N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE
JUDGMENT NO LC/H/205/23
28 MARCH 2023 & 11 JULY 2023
CASE NO LC/H/1144/22
In the matter between:-
STANBIC BANK ZIMBABWE LIMITED APPLICANT
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IN THE LABOUR COURT OF JUDGMENT NO LC/H/205/23

ZIMBABWE HARARE, 28 MARCH 2023 CASE NO LC/H/1144/22

& 11 JULY 2023

In the matter between:-

STANBIC BANK ZIMBABWE LIMITED APPLICANT

PRODIGY CHINANGA 1st RESPONDENT

ELVIS MUDZENGERERE N.O. 2nd RESPONDENT

Before the Honourable Kudya J

For the Applicant T. Chagudumba (Legal Practitioner) For the 1st Respondent W. Mafusire (Legal Practitioner) For the 2nd Respondent No appearance

KUDYA, J:

This is an application for review at the instance of the applicant bank. At the onset of the matter the parties agreed by consent that all the preliminary points bedevilling the matter be abandoned so that the matter could be dealt with on the merit. This judgement therefore only concerns itself with the merits of the matter. Two issues were raised by the review. Firstly applicant says that the Designated Agent did not have jurisdiction to deal with the matter since there were internal remedies which the employee could use to have his grievances addressed. Secondly applicant says that the Designated Agent acted in a grossly irrational manner to the extent that no reasonable designated agent exercising his mind properly would have reached that decision. In the result the applicant prayed that the review succeeds and that the Designated Agent’s decision be set aside and that the employee and the Designated Agent pay the costs jointly and severally.


In response to the review the employee maintained that the Designated Agent had jurisdiction to deal with his matter in terms of Sec 5(4)(5) of the Labour Act as read with Section 63 of the same Act. He also argued that the grievance of discrimination could not be prosecuted under the Code of Conduct for the banking sector. In his view there was therefore no internal remedy to talk about thus leaving it open for him to seek redress before the Designated Agent. The employee also argued that there was no irrationality complained about as there was no effective internal remedy to address his claim. He also argued that there was no justification for the claim of costs on an attorney client scale as all he did was that he enforced his rights through the Designated Agent as provided for by law. In the result he prayed that the review application be dismissed. Each of the review grounds II dealt with below:

Jurisdiction

A reading of Section 5(4) of the Labour Act sets out that an aggrieved employee can claim for remedies to redress the wrong at his employer’s hands. Section 63 of the Act goes on to give powers to redress or attempt to redress any wrongdoing by the employer in the industry under whom the employer and employee fall. In the case at hand it is clear that the Designated Agent got seized with the claim of an unfair labour practice as set out in the law referred to above. It is also noteworthy that the same issue of jurisdiction was raised before the Designated Agent who in the court’s view correctly concluded that he had jurisdiction to deal with the matter. A reading of his ruling speaks to the fact that the presence of a grievance mechanisms under the code of conduct could not oust his jurisdiction. This was particularly so where the employee had left the employers employ and also fact that it was the employer who he was complaining about so he could not expect the employer to sit as a Judge in its own case. The court is satisfied that the review based on jurisdiction is without substance and should fail.

Gross Irrationality

This was taken as a separate ground but it is intricately interwoven with the jurisdiction issue. In essence the employer argues that the Designated Agent acted in a grossly irregular fashion to entertain the employee where there was a Code of Conduct in place. It is settled that where the domestic remedy is untenable or insufficient resort can be had to outside remedies See Makarudze v Bungu 2015 (1) ZLR 15 (H). In the case at hand it is clear that the case was against the employer so the court does not see what was wrong in engaging the Designated Agent to redress the dispute as indicated earlier the employer could not sit as a judge in its own case. The court is thus satisfied that no good review has been made out by this ground. In the final analysis it is clear that both review grounds are without merit. The review application should be dismissed in its entirety,

**IT IS ORDERED THAT**

Application for review being without merit in its entirety it be and is hereby dismissed with each party bearing own costs

*Atherstone and Cook, Applicant’s Legal Practitioners*

*Muhonde Attorneys, 1st Respondent’s Legal Practitioners*
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