Kelvin Mutimbanyoka v Zimbabwe United Passenger Company Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO: LC/ H/250/23
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 1, JUNE, 2023

AND 31 AUGUST 2023

KELVIN MUTIMBANYOKA

And

ZIMBABWE UNITED PASSENGER COMPANY LTD

JUDGMENT NO: LC/ H/250/23

CASE NO: LC/H/46/23

Appellant

Respondent

For the Appellant:	Mr H.M.Chikomo, Attorney

For the Respondent:	Mr G. Pendei, Attorney

MUSARIRI, J:

At the onset of oral argument in this Court respondent raised a point in limine

which appellant opposed.

The point is set out in respondent’s affidavit as follows;

“3.1. The appeal is improperly before this Honourable Court. The appellant seeks to appeal against an administrative decision by the employer not to proceed with his hearing after his resignation.

Such an appeal if any cannot be made to this honourable court in terms of the Code of Conduct. The Code of Conduct (S.I.42/2022) only allows an appeal to lie to this honourable court against a decision of an appeals authority in determining a decision of a

disciplinary committee.

3.2. The third ground of appeal by the appellant seeks to challenge the Procedure adopted by the Chief Executive officer and not his

substantive finding. Such a ground is not appealable but reviewable. It is therefore improperly before the court and as such ought to be struck off”.

Appellant’s Notice of Appeal declaimed thus,

“Take notice that the appellant hereby appeals against the decision of the Chief Executive

Officer in its entirety”.

The decision is attached to the notice as Annexure A. It is a letter to appellant’s attorney by respondent’s Legal Manager. The letter is dated 28 December 2023. The critical portion of the letter reads;

“It is not disputable that yours (client) communicated in unambiguous words that they no longer wish to continue being employed with us and tendered their resignation via WhatsApp group administered by Zupco. The resignation is therefore effective and legally binding. As such there is no longer employee- employer relation between yours and us. The present notice of appeal therefore is neither here nor there.

Be guided accordingly.”

Nowhere in the letter is the Chief Executive Officer (CEO) mentioned. Thus there is no decision by the CEO before this Court which is susceptible to an appeal. The applicable code of conduct is embodied in the Sixth Schedule to the Collective Bargaining Agreement: Transport Operating Industry S.I. 42/22. The relevant clause E provides that;

“A party which may be aggrieved by the decision of the Disciplinary Committee/Disciplinary Officer as per E above, may within 5 working days;

Appeal to the Chief Executive in terms of Annexure 5 of the Code of Conduct.

Appeal to the Chief Executive shall be in writing and shall state the grounds of appeal.

The Chief Executive shall make a decision and communicate it in writing for the employee or his/her representative within fourteen

(14) working days.

Any party aggrieved by the decision of the Chief Executive shall have the right to appeal to the Labour Court within twenty – one working days”.

The code clearly provides an appeal to this Court against a decision by the CEO. However that decision must be a determination of an appeal against a decision by the disciplinary committee. Again no decision by the disciplinary committee was availed by appellant. Apparently what aggrieves appellant is the decision not to conduct a disciplinary hearing. Such a decision is an administrative decision as argued by respondent. It is subject to review rather than appeal.

In light of the foregoing analysis and synthesis it is concluded that the point in limine was well-taken and ought to be upheld.

Wherefore it is ordered that;

The respondent’s point in limine be and is hereby upheld,

The appeal is struck off the roll by reasons of the absence of an appealable decision; and

Each party shall bear its own costs.

J-U-D-G-E