First Capital Bank v Rudo Kumire

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/51/2020
HARARE, 27 JUNE, 2019
CASE NO. LC/H/46/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/51/2020

HARARE, 27 JUNE, 2019		    	     CASE NO. LC/H/46/19

AND 24 JANUARY, 2020

In the matter between:

FIRST CAPITAL BANK						Appellant

AND

RUDO KUMIRE							Respondent

Before The Honorable L. Hove, Judge:

For Appellant:				E.T. Moyo (Legal Practitioner)

Respondent:					Z. Majena (Legal Officer)

HOVE J:

This is an appeal against the decision of the National Employment Council for the banking undertaking’s appeals board.

The Respondent was employed by appellant at its operations centre as a data input clerk. She was charged in the main for any serious act, conduct or omission inconsistent with fulfillment of the express or implied conditions oh her contract” as provided for under category “D” section 11(1) of the applicable code of conduct under S.I. 273/00, and alternatively breaching category “D” section 11(5) namely ‘fraud’.

She was found guilty by the hearing officer and dismissed from employment. She was aggrieved by the decision of the hearing officer and appealed to the Grievance and Disciplinary Committee (G & DC). The G & DC failed to decide the appeal. The appeal was referred to the appeals committee. The grounds of appeal before the appeals committee were as follows;

1.	The minutes do not reflect what transpired during the proceedings as they omit some points such as;

(a)	 admissions by the complainant and the hearing officer that the handwriting on the transfer form presented in the hearing differed from the appellant’s handwriting.

(b)	submissions by the complainant confirmed receipt of a letter mailed from the United Kingdom by a customer.

(c)	submissions by the complainant concurring with the appellant that Respondent’s Mr Mhlanga phoned the customer in question who confirmed authorizing the two transactions.

(d)	submissions that the transactions in question happened more than a year before an alleged fraud by the appellant’s husband, thereby associating the incidences involving the two spouses.

2.	The hearing officer erred in finding the appellant guilty thus ignoring the following facts;

(a)	The complainant failed to produce the voucher for one of the transactions in question and yet the hearing officer went on to find the appellant guilty over that transaction.

(b)	The appellant was involved in receiving, verifying the client’s signature and authorizing the transaction over which she was found guilty of fraudulently processing.

3.	The hearing officer erred in ignoring the submissions that the complaint against the appellant was academic because the account holder did not confirm the notion that the transaction on her account was fraudulent.

4.	The hearing officer erred in ignoring the affidavit by one Theresa Borerwe which confirmed that she had accompanied the account holder to the bank to do transactions. The complainant did not challenge this affidavit.

5.	The hearing officer erred in finding that the appellant converted the money to her personal use whereas there was no evidence to that effect. Appellant produced an air ticket for the same amount that was transferred which she bought for the account holder. Any allegations of misuse of money should have been brought by the client in question.

6.	The hearing officer erred in disregarding the evidence that one Mr Mhlanga called the client who confirmed the transaction and the letter that she wrote confirming same. The hearing officer instead choose to pay attention to the different handwriting which was never part of the investigation.

7.	The hearing officer erred in taking issue with appellant’s focus on gathering evidence in her defence, as opposed to using the same time to respond to the allegations being leveled against her. The appellant made an effort to contact the respondent but could not continue doing so as she was barred from visiting Respondent’s premises.

8. 	The hearing officer erred in finding that the appellant did not provide evidence that the client (Mrs May) was in the country during the days under review. It was the bank which had the burden to prove that she was not.

9.	The hearing officer erred in not giving the appellant the opportunity to make submissions in mitigation, which was a procedural irregularity which vitiates the

entire proceedings. In Chataira v Zimbabwe Electricity Supply Authority 2001 (1) ZLR 30 (H). The court emphasized on the requirement for a fair hearing.

The record from pages 11 to 14 shows that the appeals board did not consider

any of the issues which had been raised in the appeal grounds except the allegation that the hearing officer had not granted the appellant an opportunity to address it in mitigation. The other considerations were that there had not been proper investigations and the fact that the Respondent had been found guilty of both the main charge and the alternative.

The appellant complaints that the appeals board mero motu raised procedural issues which issues had not been raised by either of the parties and partly determined the appeal on the basis of those issues. It is trite that a court (and in this case the appeals body) cannot decide a matter on the basis of issues that it itself raises mero motu when none of the parties had raised the same.

The appellant correctly argued that the Appeals Board fell into error when it mero motu converted the appeal before it into a review without affording parties an opportunity to be heard. The case of Triangle Limited v Vusimusi Sigauke SC 52/15 does not sanction such conduct.

The appellant further argues that the appeals board could not hear review applications as it has authority to determine appeals and not to hear reviews. The appeal before the appeals board was raising substantive issues for that reason it was wrong for the appeals board to convert proceedings into a review application. This same point was made in Nyahuna v Barclays Bank (Pvt) Ltd 2005 (2) ZLR that a court

will not consider irregularities or issues which are not covered by the grounds of appeal. In casu, it is beyond doubt that of the three issues considered, two were not covered in the grounds of appeal which had been referred to the appeals board. What had been referred was the appeal which had been noted before the G & DC. The appeals board ought to have confined itself to the issues referred to it for they were the terms of reference so to speak anything outside the referred issues was not properly before the appeals board especially in the circumstances of this case where the appeals board did not ask the parties to address it on those issues.

The appellant argues these two points which were not properly before the court extensively. But nothing is to be gained by advancing those arguments because as already indicated, they were not raised by the parties and it was wrong for the appeals board to itself raise those issues and then decide the matter on the basis of issues it had itself raised and not the parties without giving them an opportunity to address it on those issues.

The 3rd and last issue that the appeals board considered in deciding the appeal was properly before the appeals board. That is, that the hearing officer had failed to allow an opportunity to the parties to address in mitigation. This was not denied. But the appellant argues that such an omission could not have led to the vitiation of the entire proceedings, and I agree for the following reason;

The Learned Author Michael Opperman in his book entitled “A Practical guide to Disciplinary Hearings” at pages 146-149 notes that the decision making process for misconduct is in two parts, namely the verdict which determines culpability or guilt, and sanction, which is the disciplinary measure to be taken. Failure to consider mitigation affects only the second part of the decision making namely the sanction, but not the first part relating to culpability or guilt of the employee concerned.

So if there is an irregularity pertaining to a failure to allow opportunity to address in mitigation, it should not vitiate the entire proceedings inclusive of the verdict. It should only vitiate the sanction or penalty/sentence arrived at. This is the reason why I agree with the appellant that an omission to be addressed in mitigation, though serious a procedural irregularity cannot vitiate the entire proceedings but just the penalty issued.

In these proceedings it would not save any useful purpose for either the appeals board or this court to cure this procedural irregularity by either remitting the matter to the hearing officer to consider mitigation before considering and imposing an appropriate penalty.

This is because all the other issues, that speak to the determination of respondents culpability or guilt have not been determined as yet. They were placed before the appeals board but it did not consider it right to determine the issues before a determination on procedural issues it had raised mero motu where decided.

It is therefore premature to think about how to cure the lack of mitigation. A definite decision has to be made as to the culpability or guilt of the Respondent by the appeals board.

The appellant also argued that the appeals board does not have the authority to hear review issues in determining appeals before it. In view of the fact that the appeals board erred in deciding review issues that it had itself raised without giving the parties an opportunity to address it on those issues, and in view of the fact that this court has found that this was a serious misdirection on the part of the appeals board, that argument becomes academic and not necessary for the determination of the dispute between the parties.

This court, with respect, ought to decline to be drawn into determining academic and superfluous points whose overall effect would not be necessary in the determination of a dispute brought before the court.

The appeals board grossly erred and its decision cannot be allowed to stand. The appeals board ought to decide the matter on the issues which had been correctly placed before it and determine the guilt or otherwise of the Respondent.

In the result, it is ordered as follows;

Order:

(a)	The appeal is allowed with costs.

(b)	The decision of the appeals board of the NEC for the banking undertaking is set aside.

(c)	The appeal board shall determine the matter on the basis of the grounds referred to it.

Scanlen & Holderness	- 	Appellant’s Legal Practitioners