Robson Nyamupingidza v Agricultural Bank of Zimbabwe t/a Agribank

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/353/2014
HARARE, 21 MAY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/353/2014

HARARE, 21 MAY 2014 				            CASE NO. LC/H/425/13

20 JUNE 2014

In the matter between:-

ROBSON NYAMUPINGIDZA			-		Appellant

And

AGRICULTURAL BANK OF ZIMBABWE	-		Respondent

t/a AGRIBANK

Before Honourable L.M. Murasi, Judge

For Appellant		-	Mr. T. Mutebere (Legal Practitioner)

For Respondent		-	Mr. J. Dondo (Legal Practitioner)

MURASI J:

Appellant was employed by the Respondent as a Human Resources Officer.  He was charged with “Falsification of records or any document whether of a personal nature or otherwise.” The Hearing Officer found him guilty and recommended his dismissal.  He appealed to the Grievance and Disciplinary Committee which was deadlocked as to what penalty to impose on the Appellant.  The matter was referred to NEC Appeals Board which recommended his dismissal.  Appellant is not satisfied with the decision of the NEC Appeals Board and has approached this Court.

At the commencement of the proceedings Respondent’s Counsel applied for condonation of late filing of Notice of Response.  He explained that the person tasked with filing the Notice of Response had not done so and when he realised this error, he filed the Notice of Response.  He implored the Court to exercise its discretion on the matter.  Appellant’s Counsel stated that there was negligence on the part of the Respondent and the failure to comply with the rules should not be condoned.

A further matter also arose.  Appellant was supposed to file Heads of Argument on 12 March 2014 as per Court Order but only filed them on 8 April 2014.  Mr. Mutebere’s explanation was to the effect that he had had certain family issues to attend to.  Mr. Mutebere also purported to file Supplementary Grounds of Appeal.    The Court brought it to the attention of Appellant’s Counsel that leave should have been sought from the Court as this was prejudicial to Respondent’s defence.

The Court condoned the late filing of the Notice of Response by Respondent and late filing of Heads of Argument by the Appellant.  However, the Court ruled that the Supplementary Grounds of Appeal should be expunged from the record.  This means that Appellant’s ground of appeal was that the NEC Appeals Board misdirected itself in failing to note that the penalty of dismissal was too harsh under the circumstances.

As regards the appeal, Mr. Mutebere stated that Appellant largely abided by the Heads of Argument filed of record.  He submitted that even though the Code provides for dismissal, in appropriate cases a lesser penalty may be imposed having regard to the circumstances of the case.  Appellant stated that the letter that had been forwarded to Kamlish Investments was signed on behalf of Mr. Makombera.  It therefore was not a forged document.  It was further submitted that the documents allegedly forged by Appellant were not in his “sent” items.  Appellant argued that the alleged forged documents from Kamlish Investment did not emanate from him.  He further went on to state that two members of the Grievance and Disciplinary Committee had clearly stated that it was not clear that it was Appellant who had forged the bank statements.

Respondent submitted that Appellant was not charged with forgery but falsification of records.  It was stated that the penalty imposed on such an offender was dismissal, even for a first offence.  It was further submitted that an appellate court should not easily interfer with the discretion exercised by a lower tribunal unless there was evidence of gross unreasonableness.  It was stated on behalf of Respondent that Appellant has not shown the Court why the penalty of dismissal should be deemed inappropriate.

Numerous cases have dealt with the principle of interference by an appellate court on a decision of a lower tribunal.  In HAMA vs NATIONAL RAILWAYS OF ZIMBABWE 1996 (1) ZLR 664 (SC) KORSAH JA had this to say at 670D:

“… an appeal Court will not interfer with a decision of a trial court based purely on a finding of fact unless it is satisfied that having regard to the evidence placed before the trial Court, the finding complained of is so outrageous in its defiance of logic of accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at such a conclusion.”

Appellant has taken issue with the sufficiency of evidence led during his legal sojourn.  This Court will consider the nature of the evidence led.

The Hearing Officer examined the bank statements that were produced in evidence.  The one submitted by Kamlish Investments had the following noteworthy issues:

“The statement did not show Appellant’s salary for the month of June 2012.

There was a gap in the transactions from 27 June 2012 to 23 July 2012.

Some of the entries had been altered to reflect that they were “CASH WITHDRAWALS”.

The Hearing Officer realized that he was obliged to verify the origin of the falsified bank statements.  He made the following factual findings:

“A copy of the email in Tsitsi Munyawarara’s received items on the Westgate Branch email bears a bank statement which was falsified in respect of stop orders narrations altered to read cash withdrawals.”

The Hearing Officer made the following comments:

“Accused did send an email containing his falsified bank statements attached to it on Tsitsi Munyawarara based at the Westgate Branch.”

The fact that Appellant sent an email to Tsitsi Munyawarara is common cause and it is equally common cause that this Tsitsi printed documents which she gave to Appellants.  It is also common cause that Appellant sent documents to Kamlish Investments.  Further, it is also common cause that Kamlish Investments brought documents to Respondent for verification.  The returned documents pertained to Appellant’s bank account.  Who then was responsible for sending falsified documents to Tsitsi Munyawarara’s email at the Westgate Branch as found by the Hearing Officer?  Appellant’s explanation is that these were not in his “sent” items.  There is no reasonable explanation as to why anybody would submit falsified documents to Kamlish Investments in Appellant’s name for the purpose of obtaining a loan on his behalf.  Can it be said that the Hearing Officer’s finding in this respect was unreasonable, never mind grossly unreasonable?  I think not.

The Grievance and Disciplinary Committee was deadlocked on the penalty that was to be imposed on Appellant.  During deliberations, some members of that Committee had expressed doubt on the guilty verdict.  However a summary of the proceedings shows that:

“i.   All members of the G & DC agreed that the charge was correct.

ii.  All members of the committee agreed that Mr. Nyamupingidza was guilty as  charged.

iii.   Two members of the G & DC agreed with a sentence of Dismissal.

iv.   Two members of the G & DC did not agree with the sentence of Dismissal but suggested a final written warning.”

The Grievance and Disciplinary Committee was therefore unanimous on the verdict but differed on the penalty to be imposed.

The NEC APPEALS Board was of the view that the Appellant had committed a serious offence that warranted dismissal.  Is this decision assailable?  Appellant concedes that the penalty for such an offence is dismissal.  The reason why a lesser sentence should be imposed upon him are not forthcoming.  Appellant harps on his innocence when the evidence points the other way.  The Court has already alluded to the fact that the Hearing Officer found that there was sufficient evidence to convict and such decision cannot be faulted having regard to the evidence adduced.

What penalty suited the Appellant?  The Hearing Officer found the commission of the offence to be premeditated and Appellant’s moral blameworthiness to be high.  This was an apt finding in the circumstances.

In NAMPAK CORRUGATED WAPEVILLE vs KHOZA [1997] 2 BCLR 108 (LAC) at 113 F-I it was held.

“.. the determination of an appropriate sanction is a matter which is largely within the discretion of the employer.  A court should therefore not lightly interfer with the sanction imposed by the employer unless the employer acted unfairly in imposing that sanction.  The question is not whether the Court would have imposed the sanction imposed by the employer but whether in the circumstances of the case the sanction was reasonable.”

In casu, the Code of Conduct provides for dismissal for a first offence.  Appellant’s actions showed a high degree of premeditation as shown by the lengths he went to in order to submit these documents to Kamlish Investments.  It has been stated that to be guilty of misconduct the person concerned must appreciate that he is acting wrongfully and yet persists in so-doing with reckless indifference as to what the results may be.  This clearly applies to Appellant’s behavior in the current circumstances.  In this instance, the issue of prejudice does not come with play as the charge clearly relates to falsification of documents which may be of a personal nature that is Appellant’s bank statements.  The prejudice that arises is that the Respondent would be viewed in a bad light by third parties thus putting its good name into disrepute.

The Court is therefore of the considered view that the decision of the NEC Appeals Board is unassailable.

In the result, the Court finds that the appeal is devoid of merit and should be dismissed.

The Court makes the following order:

The appeal being devoid of merit be and is hereby dismissed.

The decision by the NEC Appeals Board to dismiss the Appellant is hereby upheld.

There is no order as to costs.

GOVERE LAW CHAMBERS, Appellant’s legal practitioners

DONDO & PARTNERS, Respondent’s legal practitioners