MBCA Bank Ltd v Tawanda Mwaenga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/234/16
HELD AT HARARE 19 NOVEMBER 2015
CASE NO
JUDGMENT NO LC/H/234/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/234/16

HELD AT HARARE 19 NOVEMBER 2015			CASE NO LC/H/661/15

& 13 MAY 2016

In the matter between:

MBCA BANK LTD					Appellant

And

TAWANDA MWAENGA				Respondent

Before The Honourable L Hove, Judge

For Appellant			Mr A Rutanhira (Legal Practitioner)

For Respondent		Ms Z Chirombe (ZIBAWU)

HOVE, J:

This is an appeal against the decision of the National Employment Council for the Banking Undertaking Appeals Board (the Appeals body).

The facts are largely common cause.

The respondent was charged for breaching a provision of the Banking Undertaking’s Code of Conduct.

The charge that the respondent faced was;

“Any serious act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract where such is not provided for under category ‘A’, ‘B’ or ‘C’.”

The specific allegations were that the respondent had acquired a personal loan from CBZ Bank which he unfortunately failed to pay as a result, he was imprisoned, civil imprisonment.  He  resolved his problems with CBZ and he was released from Prison.

After his release, the appellant charged him with an act of misconduct it being alleged that;

the facility that the respondent availed  from CBZ was to finance working capital expenditure for a business he did not declare as required by policy.

That the respondent was taken by police during working hours which led to severe disruptions in the operations of the branch as well as bringing the name of the bank into disrepute.

It is a common principle of law that he who alleges must prove.  The appellant alleges that the facility that the respondent availed from CBZ was to finance working capital expenditure for a business and he failed to declare such business.  The respondent admits that he wrote that he was accessing the facility to finance working capital but his plans for a business were still born, no business ever materialised or come into being.  The respondent could therefore not have been expected to declare a non-existent business.  It was in my opinion incumbert on the appellant to prove that there was a business which the respondent failed to declare.

The appellant argued that the disclosure of business interest which the respondent signed stated as follows

“As soon as it becomes known to me I undertake to advise MBCA in writing of any involvement that I and or the parties specified hereunder may have in any company or business that may put me in conflict with the above undertakings.”

Further the scope of undertaking stated that;

“I acknowledge that these undertaking apply

to all dealings undertaken or about to be undertaken by me…”

The appellant placing reliance on the above section of the “Disclosure of business

interests “and” the scope undertaking that the respondent signed, argued that the respondent was also bound to disclose, not only those business interests which had already taken off but it also applied to those activities about to be undertaken by him.

I have looked into the definition of “about” in the Pocket Oxford Dictionary and thesaurus and “about” is defined as “nearly”.  Again there is no evidence that was placed before the tribunal a quo that the respondent’s business was about to take off or its taking off was near.  The business venture may have been at a stage that was far from “about to be undertaken”

The respondent has said that he thought to undertake a business, borrowed money but aborted the idea and it can reasonably be taken that there was never any stage proven by the appellant when the respondent’s business venture was “about” to be undertaken.

There was therefore never any conflict of interest between the respondent’s act and the interests of the appellant’s business.  None have been proven.  There was no proven threat to the appellant’s business.  I agree with the respondent’s submission that

There was never any business ventured into and thus he had no obligation to disclose but even if there was a business (which was denied) the policy only bound him to disclose if there was possibility of conflict or threat to the goodwill of the business.  The appellant’s failure to show that there was a business and more so, any conflict, renders the basis of the charge frivolous, unwarranted and unsubstantiated at law.

The grounds of appeal also allege that the actions of the respondent posed reputational risk to the appellant.

The NEC Appeals Board which decided the matter was of the view that the complainant failed to support the issue of reputational risk on a balance of probabilities.

The employer alleges that there was a possibility that the civil matter between its employee and CBZ could be picked by the media and cause it damage in its reputation.

The NEC Appeals Board found that the complainant failed to support the issue of reputational risk on a balance of probabilities.

This court, sitting, as an appellate court, did not have the advantages that were enjoyed by the trial tribunal and cannot easily interfere with factual findings of the tribunal a quo unless it was satisfied that having regard to the evidence placed before the tribunal a quo, the findings complained of are so outrageous in their defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at that that decision.

See in this regard Nyahondo v Hokonya & Others 1997 (2) ZLR 475.

There are no facts placed before me to justify disturbing the finding of fact of the lower tribunal.

A different conclusion could have been reached by a different court but that is no basis for allowing interference by an appellate court.

The findings complained of are not so outrageous in their defiance of logic or accepted moral standards to warrant interference.

It is not clear what the last ground of appeal is challenging.

The relevant code in section 3 (3) provides that the list of misconduct is not exhaustive and should not bar acts of misconduct not listed there in.  The ground is ambiguous and is not clear or précis, as to what it intends to challenge, it must be struck off.

As is clear from the decision of the NEC Appeals Board they were of the view that while the civil matter may raise concern, to the appellant, it was an issue that did not go to the root of the contract of employer and the employee and as such did not warrant dismissal.

This court is alive to the issue that once an employer forms the view that the act of misconduct is serous going to the root of the employment contract, then dismissal can be warranted.

Toyota Zimbabwe v Posi SC 55/07 but the allegations of conflict of interest have been found to be without merit and so a penalty viewed as appropriate for that allegation cannot still be sustained.

In the result I find no basis for interfering with the decision appealed against.

I accordingly dismiss the appeal with no order as to costs.

Scanlen & Holderness, appellant’s legal practitioners