Zimbabwe Banks and Workers Union & Tirivanhu Marimo v Minister of Public Service, Labour and Social Welfare & Others

The second applicant, Mr. Marimo, was employed by ZB Bank Limited as an administrative clerk and served as chairperson of the workers' committee. During a salary increment dispute, between 8-15 September 2010, he sent emails to colleagues disclosing managerial salary adjustments and calling for collective job action. ZB Bank charged him with misconduct for breaching the bank's Information Security Management Policy by generating offensive emails containing confidential information. He was found guilty and dismissed. The NEC Appeals Board ordered reinstatement, finding his conduct was in pursuit of workers' rights. The Labour Court upheld the reinstatement. On appeal, the Supreme Court (SC 21/20) reversed, holding that a workers' representative cannot breach workplace policies even when acting in his representative capacity. The applicants then sought direct access to the Constitutional Court, arguing that the law permitting dismissal of employees for acts performed bona fide as workers' representatives violates s 65(2) of the Constitution (the right to participate in lawful trade union activities). The first applicant is the trade union acting in the interests of its members.

• Whether it is in the interests of justice to grant direct access to the Constitutional Court
• Whether the first applicant (trade union) has locus standi despite not being a party to the Supreme Court proceedings
• Whether the application is out of time
• Whether a constitutional matter is raised for the Court's jurisdiction
• Whether s 101 of the Labour Act and codes of conduct, as interpreted by the Supreme Court, violate s 65(2) of the Constitution by permitting dismissal of employees for acts performed bona fide as workers' representatives
• Whether workers' representatives enjoy immunity from disciplinary proceedings for acts done in furtherance of their representative duties

The application for direct access to the Constitutional Court was dismissed with no order as to costs.

The binding legal principles established are: (1) The constitutional right to participate in trade union activities under s 65(2) of the Constitution protects only "lawful activities" and does not provide immunity from disciplinary proceedings for acts of workplace misconduct, even when such acts are performed bona fide in the course of representing workers. (2) An employee's status as a workers' representative or trade union member does not sever or qualify the employment relationship or the contractual obligations owed to the employer. (3) To successfully challenge a Supreme Court judgment on constitutional grounds under s 85(1), an applicant must demonstrate that the Supreme Court failed to comply with the law or acted arbitrarily, producing an irrational decision. Mere disagreement with the legal interpretation is insufficient. (4) Direct access to the Constitutional Court requires demonstration that: (a) a genuine constitutional matter is raised, (b) the application has prospects of success, and (c) it is in the interests of justice to bypass lower courts. (5) Workers' representatives must exercise their representative functions honestly and lawfully, constrained by their employment obligations. The right to represent workers is not an unbridled licence to breach employment contracts or workplace policies.

The Court made several notable obiter observations: (1) It noted with approval the South African position in BIFAWU v Mutual & Federal Insurance Co Ltd, emphasizing that employee representatives owe duties of honesty to employers and that "the fellowship does not transubstantiate the continuing employment relationship." (2) The Court observed that the employment relationship is "intrinsically both cooperative and antagonistic" - cooperative because employers and employees are mutually dependent, yet antagonistic because of different interests. (3) The Court commented that codes of conduct are typically products of negotiated collective bargaining agreements between employer and employee organizations, suggesting that any immunity for workers' representatives should be negotiated and provided for in such agreements rather than imposed by constitutional interpretation. (4) The Court noted that one's route to union membership is "firmly hinged on one's employment status" - without employment in the relevant sector, one cannot lawfully represent employees in labour matters. (5) The Court suggested that the Constitution does not prescribe time limits for s 85 applications, though this was not determinative.

This judgment clarifies important principles in Zimbabwean constitutional and labour law: (1) It establishes that s 65(2) of the Constitution, which protects the right to participate in trade union activities, protects only "lawful activities" and does not create blanket immunity for workers' representatives from disciplinary proceedings for workplace misconduct. (2) It confirms that the employment relationship and contractual obligations are not superseded by an employee's status as a workers' representative or trade union member. (3) It sets boundaries on challenging Supreme Court judgments, reaffirming that the remedy under s 85(1) is not for protection of fundamental rights "in the abstract" but requires concrete evidence of a breach. An applicant must demonstrate that the Supreme Court failed to comply with the law or acted arbitrarily, not merely that the applicant disagrees with the legal interpretation. (4) It demonstrates the Constitutional Court's gate-keeping function in applications for direct access, requiring demonstration that a genuine constitutional matter is raised and that there are prospects of success. (5) It reinforces that trade unions have standing to vindicate members' rights under s 85(1)(e). The judgment balances workers' rights to collective representation against employers' legitimate interests in workplace discipline and contractual compliance.