Steward Bank v Robert Chamatsanga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/291/16
HELD AT HARARE 12 FEBRUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/291/16

HELD AT HARARE 12 FEBRUARY 2016			CASE NO LC/H/578/15

& 13 MAY 2016

In the matter between:

STEWARD BANK					Appellant

And

ROBERT CHAMATSANGA				Respondent

Before The Honourable L Hove, Judge

For Appellant			Ms A Mapanzure (Legal Practitioner)

For Respondent		Miss Z Chirombe (Legal Practitioner)

HOVE, J:

At all material times the respondent was employed at appellant’s retail branch in Avondale as a branch supervisor.

He authorised the opening of a bank account in the name of Nico Orgo (Pvt) Ltd on 23 December 2014.

The employer alleged that in so doing, he committed an act of misconduct in that he authorised the opening of the account in the absence of certified copies of the company’s CR6 Form which shows the physical address of the company and the memorandum and articles of association.  Further, it was alleged by the employer THAT, the respondent failed to conduct a visit to the company to check its physical address and to produce a mandatory call report.

The bank specifically alleged that the respondent flouted the Banks’ Retails Branch Operations and Control Procedures manual.  This omission left room for fraudulent transactions on the bank account.

Disciplinary proceedings were initiated against the respondent.  He was charged with committing an act, conduct or omission inconsistent with the express or implied condition of his contract with particular emphasis on flouting standing instructions and procedures.

The respondent was found guilty and he was dismissed from employment.  He was dissatisfied with the decision and appealed to the National Employment Council for the Banking Undertaking.  His appeal was allowed by the appeals board which ordered the reinstatement of the respondent into his job with no loss of salary or benefits.

The appellant was not satisfied with the decision of the appeals board and noted an appeal to this court.

The grounds of appeal before this court challenge the fact that the appeals board substituted the employer’s decision to dismiss with an order that the respondent be reinstated and that he be given three months warning.

The  appeals board noted that there had indeed been an error in that the respondent failed to note that on one of the documents submitted there was no “Zimbabwe”  The were of the view that the offence did not warrant the penalty of dismissal.  They reasoned that both the respondent and the appellant had fallen victims to a well-orchestrated act of fraud.

The appeals board also took into account that the bank had exonerated its

employees before the Reserve Bank of Zimbabwe.  The appellant had submitted that its employees had acted reasonably under the circumstances.  They stated as follows;

“in our respectful view, the use of tax documentation to prove residence,        particularly in the circumstances of this case, it not inconsistent with the requirements to establish the true residence of an applicant.  The question that would have to be asked is whether a reasonable bank employee would have believed that the residential address given in the tax documents was genuine.  In our view, a reasonable bank employee would have so believed, particularly taking into account that the Ministry would itself have checked out these documents to confirm their authenticity.”

The appeal board was of the opinion that the respondent’s conduct was that of a reasonable bank official.  Thus the appeals board found that the bank was of the view that the misconduct, in the circumstances of this case was not really inconsistent with the respondent’s express or implied conditions of his employment.

They argued that the bank could not now turn around and state that the respondent’s conduct was inconsistent with the conditions of his employment.  In other words they could not blow both hot and cold.

The appellant has argued that the Supreme Court has held that where an employee had committed a grave act of misconduct, it is settled law that an employer has a right at common law to dismiss the employee upon conviction of an act of misconduct of a material nature going to the root of the employer-employee relationship.

It was argued by the appellant that it is a well established legal position that a penalty for proven misconduct is a matter largely within the discretion of the employer.  In Country Fair Foods (Pvt) Ltd v CLMA & Ors (199) 201 IY 17 01 (LAC) the court held that

“It lies in the first place within the province of the employer to set the standard of conduct to be observed by its employees and to determine the situation within which, non-compliance will be visited, interference there with is only in the case of unreasonableness and unfairness.”

It was further submitted there is abundant authority on the employer’s discretion to dismiss an employee upon conviction of a serious misconduct which goes to the root of the contract of employment.  The law does not allow an appellate authority to interfere with a discretion in the absence of a misdirection on the part of the employer.  The legal position was stated in the various Supreme Court decisions which include;

Toyota Zimbabwe v Posi SC 55/07

Tregers Plastics (Pvt) Ltd v Sibanda & Anor SC 22/12

Mashonaland Turf Club v George Mutangadura SC 5/12

Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60/03

Where the court stated that once the employer had taken a serious view of the act

of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment, the question of a penalty less severe than dismissal being available for consideration would not arise.

In the case of Mashonaland Turf Club v George Mutangadura SC 5/12 the court had this to say

“In the exercise of their powers in terms of section 12 B (4) of the Labour Act, the Labour Court and arbitrator must be reminded that the section does not confer upon them an unbounded power to alter a penalty of dismissal imposed by an employer just because they disagree with it in the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss…”

It is clear that an appellant authority will not, in terms of law, interfere with the dismissal of an employee	 found guilty of an offence that the employer is of the view that it goes to the root of the contract of employment.  Ample authority was cited by the appellant in their heads of arguments.

The respondent argued that the mistake by the respondent was so inadvertent, so aberrant or otherwise so excusable that the remedy for summary dismissal was not warranted.

It was argued that in such cases, dismissal is inappropriate. reliance was placed on the case of Tobacco Sales Floors Ltd v Chimwala 1987 (20 ZLR 210.  The court stated the following

“I consider that the seriousness of the misconduct is to be measured by whether it is ‘inconsistent with the fulfilment of the express or implied  conditions of his contract’  if it is, then it is serious enough prima facie to warrant summary dismissal.  Then it is up to the employee to show that his misconduct, though technically inconsistent with the fulfilment of the conditions of his contract was so trivial, so inadvertent, so aberrant or otherwise excusable, that the remedy of summary dismissal was not warranted.”

It was argued that the bank itself had submitted a report to the reserve bank and had argued and submitted that the mistake by the bank employees was excusable as it argued that a reasonable bank employee would have believed that the documents were genuine.

The respondent argued that the facts of this case justify interference with the employer’s discretion.  They argued that the discretion of the employer was unreasonably exercised.  The employer’s discretion can be interfered with were it is demonstrated that the discretion was exercise in a manner which is unreasonable mala fide or carpricians.  Geza v ZFC 1998 (1) ZLR 137.

Further it was argued that the appellant cannot blow both hot and cold.  In one breath arguing that the error was inadvertent and excusable and in another breath argue that the same error was serious and going to the root of the contract of employment.  This is unreasonable.

I have considered that the respondent accepted that he made an error.  The question of his guilty or otherwise was thus settled.  He was guilty of making an error.  The bank made the observation that the error was serious and that it warranted dismissal.  I however agree that in finding that the offence was serious, the appellant acted unfairly to the respondent.  Its actions were mala fide and capricians.  The appellant exercised its discretion in a manner that is unreasonable.

I say so because, the appellant itself after considering the circumstances of this misconduct by its officials, wrote to the Reserve Bank and strenuously argued that its officials acted reasonably under the circumstances of the case and the mistakes were inadvertent and excusable.  Having formed this opinion and expressed it, the bank cannot now seek to argue that the same act of misconduct is serious, and going to the root of the contract of employment.  They cannot blow both hot and cold.  Its either the error is inadvertent and excusable or serious and going to the root of the contract but it cannot be both.  That would be unreasonable.  This is what the appellant did in the exercise of its discretion.  It acted in a capricains manner.  Under those circumstances, the appeals board was justified in interfering with the appellant’s discretion.  See the various Supreme Court decisions that state that it is only in cases of unreasonableness in the manner that the employer’s discretion is exercised that an appellate body can rightly interfere with the employer’s discretion see:

Toyota Zimbabwe v Posi (supra)

Couuntry Fair Foods (Pvt) Ltd

CLMA & Ors (199) 201 IJ 1701 ILAC

Mashonaland Turf Club v George Mutangadura SC 5/2012

It is therefore a clear principle of our law that where there is unreasonableness,

unfairness and where there has been a misdirection in the manner that an employer exercises its discretion, the appellate body can interfere with such discretion.

In casu, I am satisfied that the respondent managed to show that his error was inadvertent and so excusable that it did not warrant dismissal.   He showed that even the employer had expressed that same view that the circumstances of the case were such that the respondent’s conduct was that of a reasonable bank officials.

In the circumstances, the following order is made;

The appeal is dismissed with costs.

Chinawa Law Chambers, appellant’s legal practitioners