FBC Bank Limited v Chipo Nyabeze

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/161/2021
HARARE, 18 MAY 2021
8 OCTOBER 2021
CASE NO LC/H/182/19
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/161/2021

HARARE,  18 MAY   2021&		 	  CASE NO LC/H/182/19

8  OCTOBER  2021

In the matter between:-

FBC BANK LIMITED					APPELLANT

AND

CHIPO NYABEZE						RESPONDENT

Before the Honourable Kudya J

For the Appellant		R. Makumbe (Legal Practitioner)

For the Respondent		Z. Majena (Unionist)

KUDYA, J:

This is an appeal against the decision of the NEC Banking and Undertaking Appeals Committee (N.E.C) which set aside the decision of the Grievances and Disciplinary Committee (G.D.C.) and ordered that respondent employee’s  dismissal from employment be set aside and that she be reinstated to her original position without loss of salary and benefits.

The brief history of the matter is that the respondent who was in appellant’s employment as a bank teller based in Mutare was charged with acting contrary to her conditions of her employment and with wilfully disobeying a lawful order in contravention of the appellant’s code of conduct.  She was found guilty and dismissed from employment following a disciplinary hearing in her matter.  She appealed to the Grievances and Disciplinary Committee which upheld the guilty verdict but upset the dismissal penalty and substituted it with a demotion penalty. Following the demotion the employer appealed to the NEC appeals body praying that the Grievances and Disciplinary Committee’s decision be set aside and that the original guilty verdict and dismissal penalty meted out by the hearing officer be made to stand.  On the other hand the employee cross appealed to the NEC and prayed that the Grievances and Disciplinary Committee decision to demote her be vacated and that she be reinstated to her original position without loss of pay and benefits.  After hearing the appeal the N.E.C dismissed the employer’s appeal and upheld the employee’s cross appeal. In the result NEC reinstated the employee to her original position with full pay and benefits.

Irked by the N.E.C’s decision the employer has now appealed to this court in the appeal which is the subject of this judgement. Its prayer is that the appeal be granted with costs, N.E.C decision be set aside and in its place that the labour court determines the matter on the basis of its appeal grounds to N.E.C. Based on that determination it prays further that the Grievances and Disciplinary Committee’s decision interfering with penalty be set aside and that the dismissal penalty meted out by the hearing officer be upheld.  On the other hand the employee prays that the appeal be dismissed with costs. Each of the appeal grounds is discussed below:-

Ground 1

Appellant contends that N.E.C misdirected and erred at law by determining the respondent’s guilt in the absence of proper appeal grounds attacking the employer’s findings relating to the respondent’s guilt.  It notes in particular that the respondent boldly stated that allegations against her had not been proven, yet there were many allegations that were made in summary relating to her shouting at a client and denying client service.

On the other hand the respondent maintains that she  filed with N.E.C sufficient appeal grounds in excess of 8 grounds attacking the decision. In response she says the grounds spoke to G.D.C not considering procedural irregularities besetting the matter, bias, customer’s failure to utilise occasion to report to Mutare branch personnel before resorting to Masvingo branch belatedly where he was well known to the Manager thus casting doubt on the veracity of the complaint, threats by the customer that he would cause respondent to lose her job, and delay in reporting the matter by the client until he had contact with the Masvingo Manager suggesting influence. In her view the Masvingo Manager should have heeded the recusal request in the circumstances.  In the final analysis her view was that the matter was not investigated hence did not warrant her demotion.

A reading of the N.E.C appeals record shows that it was alive to the fact that even though the employee took issue with the demotion she also was concerned in the main by the guilty verdict itself which the Grievance And Disciplinary Committee seems not to have taken issue with.  It concluded that there was paucity of evidence given the fact that main reliance was only placed on the CCTV which had no audio.  Further to that it observed that the witnesses who testified could not categorically state how the employee was said to have insulted the client.  It therefore reasoned that the employees version of events therefore remained unrebutted. It concluded that it was therefore irregular for the hearing officer and the Grievance and  Disciplinary Committee alike to conclude that an offence had been committed solely on the basis of a soundless  CCTV.

The  critical question that  falls for decision is whether the N.E.Cs decision here in this regard passes the test of interference in a lower tribunal decision.  See Nyahondo  v Hokonya.  Granted, 1997 (2) ZLR 475(SC) the trier of fact had the advantage of the CCTV footage viewing and physical witnesses testimonies and demeanour which N.E.C did not have but with all that could it be said that NEC was off the mark by upsetting the guilty verdict and the penalty.  N.E.C reasons as follows “This tribunal therefore wonders how the hearing officer was able solely relying on the CCTV footage to give credence to  Gunda’s claim.  On a balance of probabilities and in the context of evidence at the hearing officer’s disposal it appears less likely that Gunda was telling the truth” This court shares the same sentiments with N.E.C and is not persuaded that the N.E.C erred in stepping in to substitute its discretion for that of the trier of fact which was is apparent had been exercised unreasonably. The first ground of appeal being without merit should fail.

Ground 2

Appellant contends that N.E.C erred not to conclude that respondent had wilfully disobeyed a lawful order. The record is replete with evidence even at the hearing officer level that whilst the respondent indeed left her work station more than once contrary to standing orders she did oblige and went back to serve customers albeit not to the satisfaction of all of them. The ground also being without merit should fail.

Ground 3

This is technically a repetition of ground one and suffice to comment that observations made by N.E.C contained in ground 1 apply here with equal force.  The ground therefore also lacks merit and should fail.	In the ultimate all appeal grounds being without merit the appeal should fail.

IT IS ORDERED THAT

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

DMH Commercial Law Chambers, Applicant’s legal practitioners