Kingdom Bank Limited v Ivy Mubaiwa

IN THE LABOUR COURT OF ZIMBABWE                JUDGMENT NO. LC/H/227/2013
HELD AT HARARE ON 1st MARCH 2013                           CASE NO. LC/ H/288/2012
In the matter between



KINGDOM BANK LIMITED                                   –              Appellant
And

IVY MUBAIWA                                            –              Respondent




Before The Honourable L. Kudya, President
For Appellant      - S. Bhebhe (Legal Prcactitioner)
For Respondent     - S. Ngandu(Unionist)




KUDYA, L.

      This is an appeal against the decision of the N.E.C. Banking and Industry

undertaking where it ordered the now Appellant to reinstate the Respondent

without any loss of salary and benefits.



      Facts of the case are that Respondent was employed as a crown banker

with the Respondent’s Newlands branch at the time of the alleged misconduct.

She is said to have on separate occasions processed a fraudulent transaction

and failed to verify a client’s signature resulting in the branch losing US$2,300

and $8,500 respectively. As a result of the above conduct she was charged with

a contravention of section 11 (15) of Appendix IV to the Collective Bargaining
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Agreement: Banking Undertaking (SI 273 of 2000) hereinafter referred to as the

Code (Gross Negligence causing serious loss to the bank).



   She appeared before the Internal Hearing Officer who found her guilty of the

offences and ordered that she be dismissed from employment with the

Respondent bank. She appealed to the Grievance and Disciplinary Committee

which reached a deadlock. This prompted the matter to be heard by the N.E.C

Appeals board. The Appeals board set aside the hearing officer’s decision and

ordered that she be reinstated to her original position without loss of salary and

benefits. Aggrieved by this decision the Appellant bank has appealed to this

court against the reinstatement order for the Respondent.



The grounds of appeal are as follows;



   1) N.E.C Appeals board erred in law in finding that the Respondent was not

      grossly negligent yet it was not disputed that;

      (a) The investigation report by Heather Mudzongo was produced at the

         hearing had not been controverted.

      (b) Proper procedure was that a client had to countersign on the transfer

         form in front of the Respondent but she did not follow that procedure.

      (c) Respondent admitted to the charges at the Disciplinary Hearing before

         the hearing officer Joel Chindabata.

      (d) The Appellant lost money as a result of the Respondent’s failure to

         follow such procedure.

   2) In the light of evidence led and the admissions by Respondent the

      findings by the Appeals board were not rationally linked to the facts and


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  were therefore outrageous in their defiance of logic and common sense

  and amounted to misdirection at law.

3) Since Respondent admitted that the ID she used was that of the

  fraudster, the finding by the Appeals board that it was of a customer had

  no factual basis hence outrageous in its defiance of logic to constitute a

  gross misdirection at law.

4) Appeals board erred in finding that the Respondent was not negligent

  since she had sought out authorization from her supervisor when it was

  clear that the supervisor was not tasked with the verification of the

  customer’s details.

5) The Appeals board erred grossly in law when it found that the

  countersignature at the back was not a requirement during the time of

  the transaction yet it was common cause that;

  (a) there was a personal banker manual which was amended in 2009

  (b) the misconduct was committed after the manual had come into effect

  (c) Article 4.5 of the manual enjoined Respondent to write the ID

     document at the back of the transfer slip and to ask a customer to

     countersign but Respondent did not do so.

6) Appeals board erred in law in finding that the minutes of the hearing

  were incorrect.

7) Appeals board erred in law in determining the appeal on grounds which

  were never part of the Respondent’s appeal

8) Appeals board erred in concentrating on one count only yet Respondent

  had been charged and found guilty of 2 counts of negligence causing

  serious loss to the bank.




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      The Appellant bank therefore prayed that the appeal succeed and that the

decision of the appeals beard be set aside and in its place the Respondent be

found guilty of the misconduct and dismissed as had been ordered by

Disciplinary committee with costs.



      In response to the grounds of appeal the Respondent maintained the

following

      1) The Respondent never pleaded guilty to the misconduct.            To that

            extent the minutes of the hearing at the Disciplinary Committee were

            doctored to favour the bank to the Respondent’s prejudice.         The

            “admission” was the core of the Appellant’s appeal and its lack exposes

            a fundamental flaw in the appeal, therefore the Appeals board did not

            err at law in that respect.

      2) The Appeals board did not err by disregarding the first charge which

            had occurred almost a year prior to the 2nd charge which Appellant did

            not investigate or resolve properly and timeously hence consideration

            of same would have been a gross defiance of a person’s right to

            immediate justice.

      3) The facts showed that the transaction complained of was sanctioned

            by the Respondent’s supervisor; the fraudster used the same

            signature with that in the bank’s system hence Respondent was

            cautious in her approach.      To that extent the Respondent was

            exonerated hence the Appeals board’s decision cannot be faulted in

            this respect.




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      In the main, the Respondent maintained that the appeal has a merit and

should accordingly be dismissed. The test in deciding on this matter is, under

what circumstances can the appeal count upset the factual findings arrived at by

the tribunal below it? That is, can it interfere with the exercise of the discretion

by the tribunal below it where it made findings of fact on a matter?



       The law is as set out in the case of AG vs Howman 1988(2) ZLR 402 (SC)

where it was stated that an appellate court can only interfere where there is a

gross misdirection on the part of the lower tribunal. It is clear from the above

that the Appellate court will not interfere with such findings unless they are so

outrageous as to defy all logic and to lead to an inference of bias or malice on

the part of the lower tribunal.



      In the instant case, a reading of the record of proceeding shows clearly

that the Respondent challenged the alleged admission which was the

cornerstone of the decision to dismiss her by the Disciplinary Committee. The

Appellate tribunal went out of its way and heard evidence on why it was alleged

that there was a doctoring of the minutes. It was only after it was satisfied

from the evidence led that it concluded that the admission could not stand for

what it was since it was heavily contested by the person to who it was

attributed.



       Indeed a reading of the statement from the Respondent as per the

minutes of the disciplinary hearing it is not as clear as the Appellant would like

the court to believe that the Respondent admitted to the charge. Her apology

cannot be taken to have been sufficient admission of the charge of gross


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negligence preferred against her. The court therefore does not find fault with

the Appeals board’s decision that the alleged admission was no admission at all

taking into account the totality of the facts of the case.



        The court is not satisfied that there was any misdirection in such a

decision. In any event the manual which the Appellant wants to rely on is clear

that the procedure for a withdrawal and a transfer were not the same. It is clear

from the facts that Respondent fell prey to a calculating fraudster and the

system she operated in fortified her conviction that the fraudster was a genuine

customer as his signature matched what was in the system. In essence any

other banker could have fallen for that where the signature in the system

matched what was presented before her.



      It is also clear that she did all that was required of her hence the court

does not glean any misdirection on the part of the Appellate body on that score.

The court therefore, fails to find that it can be said that the Appeals Committee

misdirected itself in this respect.



      As regard the old count which had not been brought to book timeously it

is also clear even from the very first hearing that such was not dealt with in

detail. It was dealt with in passing and the proceedings were mainly focused on

the fresh and high valued omission.         The court can not fault the Appeals

Committee for treating it in like manner and focusing on what had been focused

on from the start.

      It did not need the fresh omission to rock the Appellant into action to

raise the old omission. Nothing prevented the Appellant from dealing with the


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old omission when it happened when events were still fresh in both parties’

minds. The court is satisfied that there is no merit in this ground as well.



      As regards the raising of new grounds not raised in the court below, the

law is as set out by the Appellant and fortified by the case law which it cited in its

heads of argument. However in the instant case that is only as far as Appellant

went. It is not clear what it is that it alleges as new areas which the Appeals

Committee dealt with which were not in the previous hearing. For what it is

worth the court cannot be persuaded to hold that there was any misdirection on

the part of the Appeals board in this respect yet nothing of that sort has been

placed before the court.



      Whilst the verification of the supervisor did not take away the

Respondent’s duty to do her checks properly, such verification indeed boosted

her confidence in concluding since her supervisor had authorized the

transaction suggesting that all was well with it. Coupled with the checks as she

did, she could thus not be faulted to have fallen prey to the fraudster.



      If the Appellant’s system was such as could allow a fraudster to

manipulate it and present before the Respondent documents which matched

the computer signature there was nothing more that would have been expected

of the Respondent in the case. The court therefore does not find fault with the

Appeals board’s decision that the supervisor’s confirmation gave the

Respondent confidence in processing the transaction. Whilst it did not absolve

the Respondent from her duty to make her own checks it however boosted her

confidence to fall prey to the fraudster.


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      In the main it is clear from the above that there is no evidence of abuse of

discretion by the Appeals body which warrants this court’s interference. The

appeal should therefore fail in all respects.

 IT IS THEREFORE ORDERED AS FOLLOWS



   1) That appeal being without merit in all respects be and is hereby

      dismissed.

   2) The decision of the Appeals Committee is therefore upheld in its entirety.

   3) No order as to costs.




L. KUDYA

President- Labour Court


Kantor and Immerman- Appellant’s Legal Practitioners

ZIBAWU- Respondent’s Representative




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