CBZ Zimbabwe Ltd v Betina Bvekwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/50/2021
HARARE, 12 NOVEMBER 2020 &
CASE NO LC/H/244/19
21 MAY 2021
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/50/2021

HARARE, 12 NOVEMBER  2020 &			   CASE NO LC/H/244/19

21 MAY 2021

In the matter between: -

CBZ ZIMBABWE LTD					APPLICANT

And

BETINA BVEKWA						RESPONDENT

Before the Honourable Kudya J

For the Applicant		G.M. Nyangwa (Legal Practitioner)

For the Respondent		Z. Majena (Unionist)

KUDYA, J:

This is an appeal against the decision of the NEC Appeals Committee for the banking sector.  The background to the matter is that NEC got seized with the matter after the respondent employee and the appellant employer had been before the hearing officer and before the Grievance and disciplinary Committee (GDC). Before the hearing officer and before the GDC the employee had been found guilty of conduct inconsistent with her duties and she had been duly dismissed from employment.

Before the NEC the employee raised the issue that she had not been afforded a proper hearing taking into account that certain evidence had been omitted from the record of her proceedings and also the fact that she only had sight of the full record of proceeding post the GDC hearing.

NEC decided to deal with this issue first and concluded that such a flaw warranted a remittal of the matter so that the irregularity could be cured.  It is the remittal order which irked the bank and caused it to appeal to this court, which appeal is the subject of this judgement.	The main cause of the appeal is that NEC usurped review powers which it did not possess or that it went beyond the appeal   terms by determining a review issue in an appeal where it should have confirmed itself to the four corners of the record only.  The bank also argues that the issue about the record and certain evidence which the employee complained about was tantamount to allowing a determination of new issues not previously dealt with in violation of the law. It reasoned also that the appeal only concerned penalty since the employee had admitted the wrongdoing.  In the result the bank prayed that the appeal be allowed with costs and that the employees dismissal be confirmed.

In response to the appeal the employee maintained that NEC acted within its broad powers of appeal and review and decided the issue about the record and evidence.  She also maintained that NEC had not gone on a frolic of its own but rather determined an issue which she had raised with it at the outset of the appeal before it. She maintained that   there was no new evidence sought to be admitted but that she only realised that such had been omitted after she had filed her appeal to NEC. She reasoned that had she been given the full record at her earliest convenience she would have observed the omission and would have raised that with the GDC.  In her view the argument of new evidence was therefore a non-issue.  Finally, she denied admitting guilty to the offence.  She maintained that she conceded to the flouting of bank procedures and the omitted evidence sought to explain her conduct but she was denied such by the fact that it was omitted from the proceedings.  In the result she prayed that the appeal be dismissed and that the bank proceeds to hear the matter denovo as ordered by NEC.   Each of the issues is discussed below.

Review powers

It is settled law that an appeals body has inherent review powers See McKenzie v Rio Tinto SC-144-04. It is clear from what NEC that it was exercising such powers.  The court finds nothing remiss about that.  Once it has been concluded that NEC acted within its powers it becomes of academic interest to discuss whether it acted outside or went on a frolic of its own.  By acting within the confines of the law NEC acted correctly and this court has no basis to impugn its conduct.

Record of proceeding and new evidence

The importance of furnishing a party with the full record of proceedings is settled See PG v Bvekwa sc-53-16.  It is apparent from the denovo decision that it was the absence of such a record and evidence which prompted NEC to order the denovo hearing.  There can thus be no issue of new evidence supporting the appeal by the bank.

Guilty plea

A reading of the notes of the shop floor disciplinary notes does not set out clearly what the employer’s plea was. In any event it need be noted that the remittal was not premised on the nature of the plea proffered by the employee.  It is therefore only of academic interest.to discuss in detail the plea issue versus the sanctity of bank’s operations and standard of honesty in such a sector. The plea component vs the instant appeal is of no consequence as the substantive component of the matter was not touched.  The appeal can thus not succeed on this point.

In the ultimate it is clear that the appeal lacks merit in its entirety and should be dismissed.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed.

The NEC appeals board decision stands.  Each party bears own costs.

Mawere Sibanda Commercial Lawyers, Appellant’s Legal Practitioners