Agnella Mavhunga v ZB Bank

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/715/2013
HARARE, 25 NOVEMBER 2013
CASE NO. LC/H/756 &
---------




IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/715/2013

HARARE, 25 NOVEMBER 2013	    		    CASE NO. LC/H/756 & 762/12

AND 20 DECEMBER 2013

In the matter between:-

AGNELLA MAVHUNGA					Appellant

And

ZB BANK							Respondent

Before The Honourable P. Muzofa, Judge

For Appellant 		-	Mr S. Sadomba (Legal Practitioner)

For Respondent		-	Mr T. Marimo  (Trade Unionist)

MUZOFA J:

This is an appeal and cross appeal against the decision of the National Employment Council Appeals Board.  The Board ordered that the Appellant ‘Mavhunga’ be dismissed and awarded back pay from July 2, 2008 to March 2, 2012.  Both parties noted appeals against the decision at different times.  The two matters were consolidated after an application to this court was made.  For the avoidance of confusion in the terms parties would be referred to in their names.

The background facts are as follows:

Mavhunga was employed by ZB BANK.  Mavhunga was eventually dismissed by ZB Bank on 2 July 2008 following a disciplinary hearing where she was found guilty of a number of disciplinary offences.  Mavhunga noted an appeal to this court and this Court ordered that the matter be remitted for a hearing de novo before a different chairperson due to a number of irregularities.  Mavhunga was then charged again on the 12th of March 2012 for contravening Section 7 (1) of the Code of Conduct for the Banking Undertaking SI 273/2000.  She was found guilty and dismissed from her employment.  She appealed to the Grievance and Disciplinary Committee which deliberated the matter.  There was a deadlock and the matter was referred to the Appeals Board which made a determination in the following terms:-

“Appellant be dismissed but should be paid back pay and benefits with effect from July 2 2008 being date of the unlawful dismissal up to March 2 2012 being date that She was lawfully dismissed by the Respondent”

As a result of the determination both parties noted appeals to this Court.

I propose to deal with the appeal noted by ZB Bank first.  The sole ground of appeal being;

“The National Employment Council Appeals Board of the Banking Undertaking, having upheld Respondent’s  dismissal, misdirected itself in ordering Appellant to pay back pay and benefits to Respondent for the period 2 July 2008 to 2 March 2012.  Such order had no basis at Law.”

In my mind the real issue this Court has to determine is the position of Mavhunga after this Court remitted the case for a re-hearing.

On behalf of ZB Bank it was submitted that the Court in ordering a trial de novo did not reinstate Mavhunga.  If the Court wanted this it could have clearly stated so.  In that regard Mavhunga remained a dismissed employee therefore should not be paid back pay as ordered by the Board.  On the other hand it was submitted on behalf of Mavhunga that when this Court ordered a trial de novo, the parties reverted to their status before the first hearing was made.  The position was that ZB Bank being the employer and Mavhunga being the suspended employee.  It was also submitted that the letter of suspension of the 1st of April 2008 did not state whether Mavhunga was suspended on salary and benefits or not.  However in terms of Article 5 (2) of SI 273 of 2000 she must have been on full salary and benefits.  This part on the conditions of suspension was not controverted by ZB Bank.  The position is clear, the status of the employee reverts to the status quo ante see Air Zimbabwe (Pvt) Ltd v Mnensa and Another SC 89/04 and Standard Chartered  Bank of Zimbabwe Ltd v J Chikomwe and 211 Others SC 77/00.  In casu Mavhunga was suspended on salary and benefits in terms of the suspension letter of the 1st of April 2008 as read with Statutory Instrument 273 of 2000.  I therefore find no misdirection in the order of the Appeals Board in its determination that Mavhunga be paid  back pay from July 2008 to March 2012.

Various arguments were also raised to buttress the point how the Appeals Board erred.  Counsel for ZB Bank also argued that in light of the verdict of guilt the Appeals Board has rewarded Mavhunga by ordering back pay.  In particular that she should not escape liability because of another employee’s fault but should escape liability because she was innocent.  In addition that Mavhunga would not have been reinstated without first setting aside her suspension and relied on Air Zimbabwe (Pvt) Ltd v Mnensa and Another case (supra).  I donot believe this application was properly made.  In casu indeed the suspension was not set aside, therefore Mavhunga remained on suspension she was not reinstated since the matter was not dealt with on merits.  The second argument as to why this Court believes the Air Zimbabwe case (supra) is inapplicable  as regards this issue is that, payment of the salary and benefits as was ordered does not necessarily imply that she had escaped liability.  What it means is that Mavhunga had to be paid for the period that ZB Bank did not properly conduct the disciplinary hearing.  It was argued that the Appeals Board of the National Employment Council sought to review the order by this Honourable Court.  I donot believe so.  The Board made a new order in so far as it deemed fit after a careful consideration of the merits and the circumstances of the case.  This Court in its determination did not make a ruling on the merits.  Counsel for ZB Bank also argued that back pay is part of damages, parties were not heard on the quantification of damages, and Mavhunga had not mitigated damages.  I agree with Mavhunga’s representative on his submission that the principles of quantification of damages are irrelevant in this case.  This is because at the time the case was remitted for a hearing de novo, Mavhunga was no longer a dismissed employee.  Her status was that of an employee on suspension with salary and benefits.  This argument by ZB Bank is untenable and should be dismissed.  As is evident from the above the appeal by ZB Bank has no merit and therefore is dismissed.

I will now deal with the cross appeal noted by Mavhunga against ZB Bank.  The grounds of appeal being that the Appeals committee misdirected itself on the following:-

In failing to note that the Appellant was once charged of Category B offenses on the same allegations but the employer unlawfully inflated the charges to Category D.

In failing to consider the procedural issues that were raised in the grounds of appeal.

In dismissing the Appellant when there was no evidence of exceeding the RBZ withdrawal limits.

In failing to note that no vouchers were presented showing a total withdrawal of 1.2 trillion in 13 days.

In failing to note that the Appellant did not open 12 accounts, the accounts were opened by different people from different branches and in different years

In failing to note that even the system could not allow withdrawals above the stipulated limits.

That charges were varied from category B offenses to Category D offenses.

It was submitted on behalf of Mavhunga that in the initial charges she was charged under category B and in the later proceedings the charges were categorized under category D offenses.  This was irregular, so it was argued.  I believe the second hearing was independent of the first hearing.  These were completely fresh proceedings and nothing can be imported from the first hearing unless clearly then alleged in the second hearing.  ZB Bank was not duty bound to stick to the charges.  The employer being dominus litis has the unfetted discretion on which charge to prefer against an employee as long as it can prove it.  I donot think the employer can be held at ransom by the charges it preferred at the first hearing.  I am unaware of a law or a case and the Court was not referred to one for a proposition as advanced on behalf of Mavhunga.  On that basis this ground of appeal is dismissed.

Failure to consider the procedural issues raised on appeal.

Mavhunga’s representative did not make meaningful submissions on this ground of appeal.  It is as good as abandoned.  In any event it was properly pointed out by counsel for ZB Bank that this is a ground for review and not a ground of appeal.  This ground of appeal cannot succeed it should also fall.

That there was no evidence against Mavhunga.

I will address grounds of appeal 3,4,5 and 6 since they all relate to the adequacy of evidence.

The principle that bind an appeal court in relation to adequacy of evidence are well enunciated in the case of Barros and Another v Chimpondah 1999 (1) ZLR 58 (S) that

“It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course.  It must appear that some error has been made in exercising the discretion ….  In short, this court is not imbibed with the same broad discretion as was enjoyed by the trial court”

With those principles in mind can it be said there was an error in exercising the discretion in this matter?

The first allegation against Mavhunga was that she exceeded the maximum withdrawal limit allowed by the Reserve Bank of Zimbabwe.  At that time in 2008 it was alleged there was a cash shortage in Zimbabwe.  The Reserve Bank gave a directive to Commercial Banks on the amounts of cash which could be withdrawn on a daily basis from bank accounts.  This was fixed at ZW 500 000 000 per day.  It was alleged that Mavhunga was a signatory to twelve accounts.  In a period of 13 working days a total of ZWD 1 000 000 000 000 (one trillion dollars) was withdrawn translating to a daily withdrawal of about ZWD 4 000 000 000 (four billion dollars).

It was not in dispute that Mavhunga was a signatory to twelve accounts.  It was also not in dispute that all the transactions that were made were within the stipulated ZWD 500 million per day.  It was also not in dispute that the Reserve Bank directive had the following proviso.

“… these thresholds are irrespective of whether the individual or corporate client operates more than one account with the same or different Financial Institutions. Financial institutions are therefore directed to ensure that the aggregate amount from multiple withdrawals from different accounts with the same or different institutions does not exceed the above stated limit per customer per day.”

That proviso covers Mavhunga’s situation she held twelve accounts with ZB Bank, therefore a withdrawal from the accounts totaling beyond the stipulated ZWD 500 million would be a violation of the directive.  The intention of the directive by then was to try and manage the cash shortages that were prevailing in the country during that time.  If my interpretation of the proviso is wrong I would be protected by the Audit report filed of record.  In the audit report Mavhunga submitted a report that was quoted there in, which was to the following effect page 105 of the record.

“iii … I agree that I have at times exceeded the Reserve Bank of Zimbabwe cash withdrawal limit of $500 million per day by cashing against my children’s accounts …

iv … everything has gone up and it is a cash economy …

v …  I also believe that as individual account holders my children also have a right to their $500 million cash limit.”

In essence Mavhunga said at times I would withdraw from my children’s accounts so that I can have more than the stipulated ZWD 500 million a day.  This was exactly what the Reserve Bank tried to address in the proviso.  If there was no proviso I believe Mavhunga would not be liable since all the accounts were drawn within the daily allowed limit.

It was argued that there was no evidence produced to prove the withdrawals.  I believe the Audit Report was adequate proof.  In any event it was not disputed that the withdrawals took place, the dispute was whether withdrawing from the other accounts amounted to exceeding the daily limit.  The answer to that as indicated before is, in the positive.  Mavhunga by her conduct exceeded the daily limit as provided in the proviso and used her position as a bank employee to do so.  In this regard the court finds no error in the decision of the Appeals Committee.

The second allegation was that Mavhunga passed an entry transferring ZWD 9 billion from account 4112-408967-100 for one Yannick Vimbiso, without his knowledge.  Later Mavhunga made reversals to this transaction.  That the transfer and the reversal were made by Mavhunga is not disputed.  However what remains unclear is whether  Mavhunga had Yannick Vimbiso’s authority or not.  Yannick Vimbiso was not called to give evidence.  However the Audit Report states that as a person with an interest in that account she was not supposed to handle the reversal – if she gave the instruction as a bank official.  Clearly this charge was not proved.  The Audit report is not clear on her moral blame worthiness.

The other two allegations were that;

Mavhunga transferred ZWD 500 million into an account for one Ms M. Manhembe, the money was withdrawn on the same day and Ms M. Manhembe’s signature was forged.  Ms Manhembe did not give evidence.  Of importance though is that the Audit Report, which I believe was a team effort by ZB Bank  to establish the offences against Mavhunga does not deal with this issue.  On that basis alone clearly there was no evidence against Mavhunga.

That Mavhunga collected cash from tellers, Kudakwashe Shambare, T. Huseni, Saliwe Muvavariwa and Dzingai Mahwanda and the vouchers of the cash were then presented for processing at the end of the day which was against Bank rules.  She therefore abused her position as a Personal Banker.  All the tellers were not called to give evidence.  During the hearing this was not canvassed at all.  The Audit Report did not deal with this allegation.  Therefore there was no evidence against Mavhunga on this aspect.

In the final analysis I believe I come to the same conclusion as the Appeals Board, Mavhunga is entitled to the back pay.  On the cross appeal there was evidence of exceeding the daily withdrawal limit as envisaged by the Reserve Bank of Zimbabwe therefore the appeal cannot succeed

Accordingly I order as follows:-

The appeal by ZB bank be and is hereby dismissed.  The Appellant ZB Bank is ordered to pay back pay to the Respondent Mavhunga for the period July 2008 to March 2012.

The cross appeal by Mavhunga be and is hereby dismissed.

Each party to bear its own costs.

Gill Godlonton & Gerrans – Appellant’s Legal Practitioners

ZIBAWU – Respondent’s Representatives