Stanbic Bank Zimbabwe Limited v Suggest Ruzave

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/849/2014
HARARE, 02 OCTOBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/849/2014

HARARE, 02 OCTOBER 2014			               CASE NO. LC/H/652/13

AND 19 DECEMBER 2014

In the matter between:-

STANBIC BANK ZIMBABWE LIMITED			Appellant

And

SUGGEST  RUZAVE						Respondent

Before Honourable R. Manyangadze, J:

For Appellant		-	A. Moyo (Legal Practitioner)

For Respondent		-	Ms Z. Chirombe (Trade Unionist)

MANYANGADZE, J:

This is an appeal against the decision of the Appeals Board of the National Employment Council for the Banking Undertaking (Appeals Board).  The Appeals Board set aside the dismissal of the respondent, and ordered the appellant to reinstate him without loss of pay and benefits.  The appellant’s Hearing Officer had dismissed the respondent from employment after finding him guilty of misconduct.

The facts forming the background to this case are common cause.  The respondent was employed by the appellant as an Exchange Control Clerk.  During the period 7 to 15 December 2012, the appellant made some personal phone calls using his superior’s phone extension.  The extension used belonged to one Mr. Muchenje, who held the position of Head-Global Markets Front Office.

The respondent had logged into Mr. Muchenje’s phone extension when he made the calls in question.  The various calls were made to his wife, sister, brother and a friend.  The total cost of the calls was US$33,08.

The respondent was charged with misconduct under the Collective Bargaining Agreement:  Banking Undertaking, Statutory Instrument 273 of 2000 (Code of Conduct).  The charge was framed as:

“…… you are charged with contravening Category “D” 11 (1) Any serious act, conduct or omission inconsistent with the fulfillment of the express or implied conditions of his contract where such is not provided for under Category “A”, “B”, or “C”, by having intentionally hacked extension 3600 belonging to Mr. Muchenje without his permission, which resulted in the deliberate concealing of the origin of your personal calls so as to avoid paying for the calls.   This in itself presented a financial prejudice to the Bank.”

After the first hearing, before the Hearing Officer on 3 April 2013, the respondent was found guilty as charged, and a penalty of dismissal was imposed.  The respondent appealed to the Grievance and Disciplinary Committee (G & DC), which was deadlocked.  In terms of the Code of Conduct, the matter was referred to the Appeals Board, which made the determination which is the subject of this appeal.

The grounds of appeal are stated as follows:

“1.  It having been established that the Respondent (the employee):

Intentionally hacked the telephone extension of a senior employee of the Bank;

Proceeded to make calls with the resultant charges being made to the account of the Bank’s senior employee.

The Appeals Board erred and misdirected itself in failing to find that such proven and admitted conduct constituted a Category “D” 11(1) offence in terms of the Code of Conduct for the Banking Undertaking contained in S.I. 273/200.

The Appeals Board misdirected itself in making the finding that “there had been no criminal intention or sinister motive on the appellant’s part ……” in circumstances where the Respondent (employee) had not been charged of any criminal offence.  Based on this wrong premise, the Appeals Board erred and misdirected itself in finding as it did that the Appellant’s conduct could be condoned in the circumstances.

The Appeals Board erred and misdirected itself in failing to find that hacking of a senior’s telephone constituted a serious breach of trust and could not be trivialized as mere “misuse of Bank property”.

The Appeals Board erred and misdirected itself in failing to find that the proven and admitted conduct of the employee undermined the employer/employee relationship to the extent of making the continuation of such relationship intolerable and unbearable on the part of the employer.

The Appeals Board erred and misdirected itself in giving undue weight to the mitigatory factors and ignoring the impact of the Respondent’s conduct on the underlying relationship of employer/employee, which is based on trust.

In the premises, the Appeals Board erred and misdirected itself in ordering the reinstatement of the Respondent with full pay and benefits.”

The facts of the matter are not in dispute.  The record is clear that the respondent admitted making the unauthorized personal calls, on his superior’s extension.

However, the respondent’s admission does not necessarily mean he is admitting the charge of misconduct as preferred, under category D of the Code of Conduct.  Category D consists of dismissable offences.  Other categories i.e. A, B and C provide for lesser penalties than dismissal.

It was contended, on behalf of the respondent, that the appropriate charge fell under category A, not D.  The appellant chose category D because it had formulated an intention to dismiss the respondent.  Ms Z. Chirombe, the trade union representative for the respondent, put it this way during oral submissions:

“The Appeals Board dealt with this issue accordingly.  The charge was not category D, because it was highlighted under Category A as misuse of bank phones”

This appears to be the position taken by the Appeals Board.  A portion of its decision which reflects this stance reads as follows:

“In the light of the above observations, the NEC Appeals Board felt that the charge by respondent was made out of emotion hence in the view of the NEC Appeals Board the resultant penalty was too severe.  It was observed, and in agreement with the appellant, that the offense committed in this instance was one of “Misuse of bank property, e.g. telephone, stationery etc.”, which offense falls under Category A Section 8 (2) of the Code of Conduct.”

From this, the pertinent question that arises is whether the appellant properly preferred the misconduct charge under category D offences.

The appellant contended that the question of the appropriate charge is the prerogative of the employer.  It is a matter entirely within the discretion of the employer.  Mr. A. Moyo, the legal practitioner for the appellant, expressed it this way during oral submissions:

“We submit that it is the prerogative of the employer to choose a charge to be preferred.  The employer chose a category D offence.  The contention is that the employer should have chosen a lesser charge presumably misuse of a telephone.  In such matters, the employer is dominis litis.”

The gist of the appellant’s averment was that an appellate court should not readily interfere with the discretion of a lower tribunal.  In this regard, the Appeals Board was an appellate court, in relation to the decision of the Hearing Officer, who sat as the court of first instance.  There was no justification for the Appeals Board to upset the findings of the Hearing Officer.

The appellant buttressed its position by referring to a number of cases, where it was held that an appellate court cannot interfere with the factual findings of a lower tribunal, unless the latter seriously misdirected itself in arriving at its findings.  The cases cited included:

Reserve Bank of Zimbabwe v Carrine Granger & Another SC-34-01

Nyahondo v Hokobya abd Others 1997 (2) ZLR 475 (S)

Aidan Paul Beckford v Elizabeth Anne Beckford SC-25-09

In this case, it is necessary to look closely at the applicable provisions of the Code of Conduct.  An examination of these provisions should assist in determining whether the Appeals Board misdirected itself in setting aside the Hearing Officer’s decision.

The respondent was charged with contravening clause 11(1) of the Code of Conduct which falls under “Category D” Offences.  It provides as follows:

“Any serious act, conduct or omission inconsistent with the fulfillment of the express or implied conditions of his contract where such is not provided for under Category “A”, “B” or “C”.” (emphasis added)

Category D lists offences, numbering (1) to (18), for which dismissal is imposed even for a first conviction.

Clause 11(1), under which respondent was charged, is peculiar in that virtually every act of misconduct listed in the Code of Conduct can be charged under it.  It seems to me, in recognition of this feature, other offences were specifically excluded, and were placed under category A, B, or C.  If the conduct complained of falls under A, B or C, the employee should be charged thereunder, and not under Category D.  Otherwise every act of  misconduct can be charged under this clause, as it is wide enough to accommodate everything, with dismissal as the inevitable penalty.  I do not think that was the intention of those who drafted the Collective Bargaining Agreement, incorporating the Code of Conduct.  This clause was meant for offences sufficiently serious to warrant a straight dismissal.

The Appeals Board’s finding was that respondent’s misconduct was that of misuse of a phone, and as such fell under category A.

The relevant clause is 8 (2).  It provides:

“misuse of bank property, e.g. telephone, stationery etc”

The respondent made use of his boss’s phone, by making personal family calls.  That is well documented and not disputed.  The appellant described the misconduct as;

“having intentionally hacked into the telephone extension of the Head of Global Markets.”

The Grievance and Disciplinary Committee’s deliberations, though deadlocked, provided a useful insight into this aspect, of hacking.  They viewed this as accessing information from someone’s computer or phone without their approval.  It seems to me hacking goes far beyond using a phone to make personal calls.  It has something to do with accessing or tempering with someone else’s data. This is certainly not what the respondent did.

The provisions of the code looked at are clear and unambiguous.  The act of misconduct complained of, which the appellant charged under clause 11(1), in my view, also clearly fell under clause 8 (2), which is a category “A” offence.  The offence is described as misuse of company property.  To avoid doubt, the clause goes on to give examples of property that can be misused, such as a telephone and stationary.

In the face of such clear provisions of the Code of Conduct, it was a serious misdirection on the part of the appellant to go for a clause 11(2) offence.  That clause excludes the kind of conduct complained of as it is provided for under Category A.  The Appeals Board was justified in  interfering with the Hearing Officer’s decision under the circumstances.  The court finds no basis on which to overturn the Appeals Board’s decision.

What however, the court finds issue with, in the Appeals Board’s determination, is that it simply reinstated the respondent, with an order that he repays the US$33,08 the appellant was prejudiced of.  There is no option of repayment of damages.  This can however, be remedied through this Court’s exercise of the discretion it has in terms of Section 89 (2) (a) (ii) of the Labour Act [chapter 28:01], which empowers it to “confirm, vary, reverse or set aside the decision, order or action that is appealed against, or substitute its own decision.”

In the circumstances, the Court considers it just and proper to uphold the decision of the Appeals Board, but vary it by incorporating an order for the payment of damages, as an alternative to reinstatement.

In the result it is ordered that

The appeal be and is hereby dismissed with costs.

The order of the Appeals Board be and is hereby upheld, with the variation that if reinstatement is no longer an option, the appellant shall pay the respondent damages in lieu of reinstatement.  The quantum of damages shall be agreed upon by the parties, failing which either party may approach the court for quantification.

KANTOR & IMMERMAN, Appellant’s legal practitioners