Evaristo Mukura v Stanbic Bank Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/293/24
HARARE, 16 MAY 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 16 MAY 2024

05 JULY 2024

JUDGMENT NO LC/H/293/24 CASE NO LC/H/879/23

EVARISTO MUKURA	APPELLANT

STANBIC BANK LTD	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant	- Mr T. Marimo,Unionist

For Respondent	- Mr S. Sadomba, Attorney

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment by Respondent. The appeal was made in terms of Section 92D of the Labour Act Chapter 28:01. Respondent opposed the appeal.

The grounds of appeal were five-fold. However, during oral argument, appellant abandoned grounds 3 and 5. The remaining grounds read thus;

‘’1. The NEC Appeal Board erred in upholding the verdict and penalty whilst disregarding the evidence on record showing that there were countrywide Eco-cash

challenges during the period in question which hindered the personal Eco-cash deposits by Appellant in terms of the initial authority to deposit cash forms.

2. The NEC Appeal Board erred in concluding that the Appellant was dishonest and misrepresented to his supervisor contrary to the evidence on record showing that Appellant did not falsify any documents and neither did he have any intention to do so.

4. The NEC Appeals Board, after concluding that the allegation of dealing with foreign currency had no bearing on the charge,erred in upholding the dismissal that was based on that allegation.’’

The grounds of appeal raise 3 (three) issues which will be dealt with ad seriatim.

Whether appellant falsified documents as charged by respondent:

It is common cause that appellant was charged with “Falsification of records or any document whether of a personal nature or otherwise.’’

Apropos the charge, the NEC Appeals Board opined thus,

‘’…The Appellant was dishonest when he submitted forms for authorization to his superior, which he knew contained untrue information. This was a clear betrayal of the trust and confidence that was reposed in him by the bank. This is clearly serious and deserves a graver charge.

Secondly, we found the appellant's conduct to be inconsistent with the conditions of his contract. One of the implied conditions is the duty of good faith, where an employee has an obligation to act honestly at all times. As a banker, this obviously formed an integral part of the appellant’s implied contractual terms. Further to that there was an

express internal policy for employees to disclose the source of deposits into their accounts. The appellant was in flagrant breach when he represented on the deposit  forms that he was the one making the deposits, when in actual fact they were made  by other people. This cannot be regarded as an innocuous violation.’’

In his heads of argument appellant argued as follows

‘’At the time of completing the Authority to Deposit Form, the Appellant did not anticipate that he was going to face the Eco-cash challenges which would hinder him from making the personal deposits. At that stage before the actual challenge that the Appellant faced, it cannot be concluded that the Appellant was falsifying documents as the form was completed ahead of the transaction.

If regard is had to the Eco-cash challenges, by parity of reasoning, Appellant can’t have predicted that Eco-cash platform would not be successful. This fact rules out the element of dishonesty and misrepresentation.

Misrepresentation is only based on information and facts that have occurred or were available and known at the time of completing the form to which the subsequent Eco-cash challenges were not.’’

This specious argument is clearly untenable. After obtaining his superior’s authority to deposit own cash, appellant proceeded to have third parties deposit the cash into his account. Clearly appellant falsified the document he submitted to his superior. Appellant’s Eco-cash alibi was discounted at the hearing at his workplace where the Hearing Officer opined,

‘’In your defense you alleged that the Eco-cash system was down which prompted you to ask for these deposits from the above-mentioned people to enable you to transact. You however failed to bring this to the attention of your Line Manager for authorization

purposes in line with the Bank’s policy. When queried why you did not adhere to this requirement, you indicated that it was an omission on your part in all the instances.’’

The totality of the circumstances shows, on a balance of probabilities, that appellant deliberately misrepresented the identity of the depositors of cash into his account. The finding of guilt was a factual finding which cannot be reversed on appeal in the absence of gross misdirection.

See Levy vs Modus 1998(1) ZLR229 (S)

Per Korsah JA at P 247 F-G

‘’ Generally speaking, an appellant court will not interfere with the decision of a trial court based purely on a finding of fact unless it is satisfied that the finding had been based on an erroneous evaluation of the facts taken as a whole; or it is satisfied that the Judge had given no weight or insufficient weight to those considerations which ought to have weighed with him; or that he has been influenced by other considerations which ought not to have weighed with him or weighed so much with him.’’

No error or irrationality was shown in the findings by the both Appeals Board and Hearing Officer. Accordingly, the finding cannot be reversed.

Whether the alleged country-wide Eco-cash challenges ought to affect the determination of the matter:

The alleged Eco-cash challenges have no bearing on the charge and its proof. The challenges are irrelevant and tantamount to a red herring as the above resolution of the first issue shows.

Whether the allegations of dealing with foreign currency had a bearing on the determination:

There was suspicion or speculation that appellant was dealing in foreign currency. However he was not charged for unauthorized dealing in foreign currency. He was charged with falsifying records. Therefore, talk of foreign currency is yet another red herring.

CONCLUSION

All the issues raised by the appeal resolved against appellant. Accordingly, his appeal ought to be dismissed as devoid of merit.

Wherefore it is ordered that;

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E