Agribank v Sipho Mhlope

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/481/2014
HARARE, 02 JULY 2014
CASE NO. LC/H/481/2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/481/2014

HARARE, 02 JULY 2014	    		  	            CASE NO. LC/H/274/14

AND 01 AUGUST 2014

In the matter between:-

AGRIBANK							Appellant

And

SIPHO MHLOPE 						Respondent

Before Honourable E Muchawa, Judge

For Appellant		-	J. Dondo (Legal Practitioner)

For Respondent		-	T. Marimo (Trade Unionist)

MUCHAWA, J:

This is an appeal against the decision of the National Employment Council (NEC) for the Banking Undertakings’ Appeals Board.  That decision set aside the earlier decision of the Grievance and Disciplinary Committee which had found respondent guilty and dismissed her.

Respondent had been charged with breaching category “D” 11 (17) of the relevant Code in SI 273/2000 being failure to comply with standing instructions or follow established procedures resulting in substantial loss to the bank.

Respondent was employed by the appellant for 8 years, serving as a teller for 5 years and as co-custodian at appellant’s Central Cash Deposit (CCD) for 3 years.

The allegations against respondent were that on 6 September 2013 whilst respondent and her co-custodian, one Precious Chataika were preparing deposits from CCD, they had discovered an excess withdrawal of USD10 000 from the vault.  This amount subsequently disappeared causing loss to the bank.  Respondent was alleged to have failed to comply with standing instructions in that,

She withdrew cash from the vault in an unlocked and unsealed container.

She did not pack, lock and seal the cash withdrawn from cash vault whilst in a secure and safe place that is in the cash vault.

She did not exercise due care in monitoring of the excess cash, USD10 000 and failed to lock it away in the cash vault.

The NEC Appeals Board found that the procedures for issues to do with the vault were non existent.

A further finding was that social justice had not been observed in reinstating one of the co-custodians whilst dismissing respondent, yet they had joint responsibility.

It was also found that on a balance of probabilities and having regard to the circumstances, two other employees had had the opportunity to steal the money.   The failure to view the CC-TV footage was said to work against a conclusive finalization of the matter.

The grounds of appeal raise the following issues for my determination.

Did the Appeals Board err on a point of law in substituting and coming up with its own judgment without laying a clear legal basis for such a finding?

Did the Appeals Board err in finding that there were no procedures in cash handling and in subsequently determining the matter on surrounding circumstances rather than the issue of the flouted procedures which were established out of practice.

Was the Appeals Board biased?

I intend to dispose of the second issue first as it directly addresses the other issues.

Procedures In Cash Handling

Respondent submits that appellant never produced any of the procedures allegedly flouted despite requests.  The NEC Appeals Board is said to have therefore correctly found that such procedures were non existent relating to handling cash from the vault.

On the other hand appellant argues that such procedures were there and they were established out of practice.

A perusal of the hearing minutes shows that there was a known procedure which respondent clearly spelt out.  I will quote from page 28 of the record.

“Mr Kazondo – There seems to be misunderstanding between Complainant and Appellant on procedure.  You seem to have been working with inherited procedure from predecessor.  If you confirm cash in the vault what do you do if there is excess

Ms Mhlope – We would take it back

Mr. Kazondo – In this case there was an over of USS10 000.00

What did you do with it?

Ms Mhlope – We put it aside.

Mr. Kazonfo – Procedure says you take it back.

Ms Mhlope – We wanted to pack first and then take it back.  We were

working under pressure and couldn’t take it back immediately on that particular day.”

In the circumstances of the above exchange, it is clear that there was a procedure known to respondent regarding how to deal with excess cash from the vault.  It may not have been written or produced but it was available to the parties hence respondent’s clear articulation.  It was therefore not necessary to call a witness to restate this.

The NEC Appeals Board was wrong in finding as it did, that the procedure was non existent.

Having made the erroneous finding the NEC Appeals Board did not address itself to the issue at hand.  The charge was “failure to comply with standing instructions or follow established procedures resulting in substantial loss to the bank.”

I agree with appellant’s submissions that the issue of the access to the CCTV, and proving on a balance of probabilities who of the three amongst Respondent, her co-custodian and a Brenda P Mbewe, had taken the money, would have been useful if respondent was facing a charge of theft.  The question of having failed to comply with standing instructions relating to the excess cash was not seriously contested.

Respondent was therefore correctly found guilty of failure to exercise due care in monitoring of the excess cash, USD10 000 and failure to lock it away in the cash vault.

I do agree however that the allegations relating to failure to pack, lock and seal cash withdrawn from cash vault whilst in a secure and safe place and withdrawing of cash from the vault in an unlocked and unsealed container related to appellant’s failure to provide a conducive work environment.

Is there clear legal basis for substituting the decision of the G & D Committee in respect to dismissal penalty.

Appellant argues that there was no basis on which the NEC Appeals Board should have set aside the dismissal penalty as the offence was proved and not denied at the hearing.  The offence is a dismissable offence in terms of the relevant Code.  By setting aside the dismissal penalty, the NEC Appeals Board is said to have merely substituted the employers’ discretion.  Such an approach has been discouraged by the Supreme Court in the matters of ZB Financial Holdings v Maureen Manyarara SC 3/12 and Mashonaland Turf Club v George Mutangadura SC 5/12.  A penalty on dismissal should not be altered merely because a court or an arbitrator disagrees with it.  There must be misdirection or unreasonableness on the part of the employer.

Respondent argues that the NEC Appeals Board was correct in observing that appellant failed to observe the parity principle.  I was referred to the case of Anna Pingani v Parks and Wildlife Management Authority LC/H/201/2008 for the assertion that like cases should be treated alike.  Respondent’s co-custodian was reinstated on appeal whilst respondent was not.

Appellant counter argued that though respondent was a co-custodian with Precious Chataika, she was the team leader and had been through a previous disciplinary matter relating to non following of laid down procedures.  She could therefore not expect to be treated the same as the decision on the penalty is taken after taking all the relevant circumstances of each individual’s case into account.

To this respondent referred me to section 7 (6) on Penalties Section in the relevant Code.  It was in support of the fact that the previous disciplinary conviction should not be taken into account as it had expired.  It reads,

“The warning/penalty is progressive where an individual commits any further offence before expiry date for any previous offence has lapsed.”

I find that the above quoted section does not help respondent.  It relates to warning penalty periods running progressively and not concurrently and does not support the non consideration of expired warnings.

Appellant is correct in its assertion that each individual case should be considered on the basis of its circumstances.  This is in line with section 7 (3) of the relevant Code.

Regarding the parity principle and its application, the Supreme Court held in Lancashire Steel (Pvt) Ltd v Elijah Zvidzai and Ors SC 29/95 that it is not uncommon for alleged ring leaders in any unlawful action to be singled out for punishment.  If they are guilty it is not in law relevant that others may also be guilty

In casu I find that the NEC Appeals Board therefore misdirected itself in substituting the employer’s discretion of a dismissal penalty.  This was merely because they disagreed and this is not a sufficient ground to alter a dismissal penalty.

There is no basis to consider whether or not the NEC Appeals Board was biased as I have already found that respondent was properly found guilty and that discretion was properly exercised to dismiss respondent.

Accordingly,

The appeal succeeds with costs.

The determination by the National Employment Council Appeals Board be and is hereby set aside and the decision by the Appellant’s Disciplinary Committee to dismiss the Respondent be and is hereby upheld.

DONDO & PARTNERS, Appellant’s legal practitioners