Thomas Mapani v Kingdom Bank

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/445/13
HELD AT HARARE 9 JULY 2013 AND
CASE NO LC/H/314/12
13 SEPTEMBER 2013
JUDGMENT NO LC/H/445/13
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/445/13

HELD AT HARARE 9 JULY 2013 AND	  CASE NO LC/H/314/12

13 SEPTEMBER 2013

In the matter between:-

THOMAS MAPANI							Appellant

And

KINGDOM BANK								Respondent

Before The Honourable G Mhuri, Judge

For Appellant	Mr T Marimo (Zimbabwe Banking Allied Workers Union)

For Respondent	Ms N Timba (Legal Practitioner)

MHURI, G:

In its response to the appeal, Respondent raised a point in limine to the effect that since the NEC Appeals Board (Appeal Board) is comprised of two representatives or their alternates from each of the Parties vis the ZIMBABWE BANK & ALLIED WORKERS UNION (ZIBAWU)  and the BANKERS EMPLOYERS ASSOCIATION OF ZIMBABWE (BEAZ), ZIBAWU can not appeal against its own decision.

Respondent contended that in that regard, the appeal is improper and should be dismissed.

It is this point alone that I directed the Parties to address me on first before addressing on the merits.

It was Respondent’s submission that, it being common cause that the Appeals Board comprised of ZIBAWU and BEAZ representatives and its decision being the one appealed against, it is not proper for ZIBAWU to appeal against it.  Reference was made to the Notice of Appeal (Record page 3 & 4) where the signature of the person (Mr Marimo) noting the appeal is indicated as having been done under ZIBAWU.

It was further submitted that the Labour Act [CAP 28:01](THE ACT)does not mandate ZIBAWU to note appeals on behalf of Appellants.

On that note, Respondent submitted that the appeal was fatally defective rendering it a nullity.

It was Appellant’s submissions in response to the point in limine that ZIBAWU as a registered trade union acts in terms of the provisions of the Labour Act.  It represents its members in all matters that affects their rights and interest.  It acts in a representative capacity right through to the Labour Court.  Reliance was made on sections 29 and 92 of the Act.

In terms of clause 6 sub clause (6) of The Banking Industry, Collective Bargaining Agreement S.I. 273 of 2000 – Code of Conduct  - Appeals Procedure, the Appeals Board comprises of two representatives or their alternates from each of the parties.  It was not in issue that the Appeals Board was comprised of two members from BEAZ and two from ZIBAWU.

It is common cause that it is the decision of the Appeals Board which is the basis of this appeal.  On page 1 of the Notice Of Appeal (Record page 1) under DETAILS OF APPEAL it is written

“I, THOMAS MAPANI of I MEREDITH DRIVE EASTLEA, HARARE c/o ZIBAWU

am aggrieved by ....”

On page 3 of the Notice of Appeal (Record page 3) under NAME AND ADDRESS of legal practitioner or employer/employee representative of the Applicant, if any, it is written

TIRIVANHU MARIMO

Of ZIMBABWE BANKING ALLIED WORKERS UNION

1 MEREDITH DRIVE

EASTLEA

HARARE

It is on page 4 of the Notice of Appeal (Record page 4)  that Mr Marimo of ZIBAWU appended his signature as the person noting the appeal.

Section 92 of the Act provides for the persons who can appear and represent litigants in the Labour Court.

It provides:-

“Representation of Parties

A party to a matter before the Labour Court may appear in person or be represented and appear by-

a legal practitioner registered in terms of the Legal Practitioners Act [CAP 27:07]; or

an official or employee of a registered trade union or employers organisation of which the party is a member.”

It is not in dispute that ZIBAWU is a registered

trade union. Section 29 of the Act provides for the rights of a registered Trade Union.

Section 29 (4) (d) reads:-

“Subject to this Act, a registered trade union or shall be entitled-

(d)	to make representations to a determinating authority or the Labour Court and to

(f)	form or be represented on any employment council.”

It therefore follows that in terms of the above provisions ZIBAWU can appear and represent its

members, Appellant included.  It was not Respondent’s

case that Appellant was not a member of ZIBAWU.  Having the right to appear and represent its member, it goes without saying that ZIBAWU has the right to note and lodge documents on behalf of its members, just as much as a registered legal practitioner notes and lodges papers in this Court on behalf of his/her clients and also as much as the employer’s organisation (BEAZ) in casu, has such a right.

It was not challenged that Appellant is being represented by a totally different official from the 2 representatives who were part of the Appeals Board and is from a different section of ZIBAWU.

As alluded to earlier, ZIBAWU has a right in terms of Section 92 of Act to represent Appellant.  To accept Respondent’s submission that it is improper for ZIBAWU to note and represent Appellant, would be tantamount to taking this right away.

Further, it is common cause that the decision of the Appeals Board is a decision not of either of the parties representatives (BEAZ or ZIBAWU) but that of the Appeals Board.  It is noted that the Appeals Board had a split decision, with the representatives from ZIBAWU advocating for Appellant’s reinstatement.

It is not correct therefore that ZIBAWU is appealing against its own decision

I am totally not persuaded by Respondent’s submissions and to that end will dismiss the point in limine.

Accordingly it is ordered that the point in limine be and is hereby dismissed.

The Registrar is directed to reset this appeal for argument on the merits.

Zimbabwe Banking Allied Workers Union, Appellant’s Representative

Kantor & Immerman, Respondent’s Legal Practitioners