Agricultural Development Bank of Zimbabwe v Jennipher Zuweni

IN THE LABOUR COURT OF ZIMBABWE                      JUDGMENT NO. LC/H/95/2013
                             TH
HELD AT HARARE ON 19              OCTOBER 2012       CASE NO. LC/H/534/2011
In the matter between:


AGRICULTURAL DEVELOPMENT                             -              Appellant
BANK OF ZIMBABWE
And
JENNIPHER ZUWENI                                     -              Respondent


Before The Honourable L. Kudya, President
For Appellant                         -              J. Dondo (Legal Practitioner)
For Respondent                        -              J. Chitereka (Unionist)




KUDYA, L.
       This is an appeal by the Respondent bank against the decision of the

N.E.C for the Banking Industry and Undertaking’s decision to reinstate the

appellant to her original position with the bank. Appellant had been dismissed

by the respondent on allegations of having contravened category D section 11

(1) of the Respondent’s code of conduct which read “ any serious act, conduct or
omission inconsistent with the fulfillment of the express or implied conditions of contract”.



       The facts of the case are as follows: Respondent was employed by the

Appellate bank as a teller. At the time of the instant allegations she was working

at one of appellant’s branches in Jerera.On the 4 th of March 2011 she received a

Delta Beverages deposit slip of US $4463 but did not capture the same into the

banking system or hand it over to the operating teller.
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      The issue came to light some 26 days later after Delta had raised a query

about that deposit .Respondent at this point in time tried to regularize the

position by altering the deposit slip and back dating it to the date when it was

supposed to have been actioned. The money in question together with the

deposit slip was found in the drawer which housed disused Zimbabwean dollars.



      When she was asked about the deposit, Respondent conceded that she

had received same on the alleged date but had forgotten to hand it over to the

operating teller on the day of receipt. She also indicated that she could not

capture it into the system as that was against the standing orders at that bank.

She had to hold on to the deposit and surrender it to the operating teller who in

turn would have captured it. She was brought before the Disciplinary

Committee (D.C) which found her guilty of the conduct complained of and

dismissed her from her job.



      Aggrieved by the decision of the D.C she appealed to the Grievance and

Disciplinary Committee (G. D. C). After deliberations, the G.D.C found her guilty

of the alleged misconduct but reached a dead lock as to the appropriate

penalty. The matter was subsequently referred to the N.E.C for the Banking

Industry Appeals Board. The N.E.C noted that there were weaknesses in the

banking system and that the Respondent had not intended to prejudice her

employer. As a result the N.E.C ordered that the Respondent be reinstated to

her original position. She was however not to be paid back pay for the period

she was not at work. It also ordered that she be given a final written warning to

subsist for two months from the date of receipt of the N.E.C order.          The




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Appellant was not happy about the decision of the N.E.C hence it appealed to

this court against that decision.



   The basic grounds of appeal cited by the Appellant are as follows;

   1. The N.E.C appeals board misdirected itself by placing emphasis on the

      bank’s faulty systems and thus failed to scrutinize all the evidence which

      had been led on the merits of the case so that it could conclude whether

      or not the decision which was arrived at had been so ,properly or not

   2. The N.E.C appeals board erred at law by substituting the sentence with its

      own without giving a legal basis for doing so. Further to that, the

      variation was outside the penalties permissible for the charge that the

      Respondent had been found guilty of.

   3. Appeals Board erred by reinstating Respondent without ordering back

      pay thus acknowledged that Respondent had been rightly convicted and

      penalized within the prescribed framework.

   4. The Appeals Board misdirected itself by failing to appreciate that the

      matter was biased a lot against the employer. In the result, the Appellant

      prayed that the appeal be upheld with costs and that the finding of the

      Appeals Board be set aside and substituted with an order confirming the

      D.C’s decision to find respondent guilty and to uphold the dismissal

      penalty in that regard .



   On the other hand, the Respondent maintained that there was no

misdirection on the part of the N.E.C Appeals Committee. She argued that the

N.E.C Appeals Committee righty found that the banking system was flawed to

the extent that it exerted pressure on her as she had to multi-task as a teller,


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back office clerk, A.T.M custodian and vault custodian. This increased the risk of

incidents like the one in the instant case where Respondent forgot to have the

Delta transaction captured or to hand over the money to the duty teller.



   Respondent argued that, the N.E.C Appeals Board rightly observed that she

was a victim of the Appellant’s weak system and that the decision to reinstate

her accorded with the view that the bank could not benefit from its own loose

system. She contended further her superior’s failure to check the drawers daily

as was required of him or to discover that such money was stashed in the

drawer means that the bank occasioned its own potential loss.



   She stated that the Appeals Committee rightly noted that her forgetfulness

together with the bank’s loose systems created a situation of shared

responsibility which warranted her retention by the bank on a stringent warning

than to be dismissed. She maintained further that she had no intention to

prejudice appellant because the deposit was discovered intact by her colleague.



   She maintained that the relationship between her and the bank had not

deteriorated. This was evident from its recalling her to do banking duties at one

of its branches after the misconduct. In her view, this was a sign of the bank’s

confidence in her work. She maintained that the shared responsibility argument

which persuaded the Appeals committee was well founded and should be

endorsed by this court.



   In her view the Appellant caused her to find herself in the circumstances

which she found herself in, owing to its loose systems. She therefore prayed


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that the court upholds her reinstatement and dismiss the appeal by the

Appellant bank.



   The law relating to matters of this nature is clearly set out in the case of

Treger Plastics Pvt Ltd vs Woodreck Sibanda and Paul Magondo SC 264/11

where Ziyambi JA stated the following:


      “the principle has now been firmly established that an appellate court will not

      interfere with an exercise of discretion by the employer unless there has been

      misdirection in the exercise of such discretion”.



      It is not up to the Appellate court to substitute its discretion for that of the

lower court unless there is evidence of a serious misdirection on the part of the

lower court .Putting this law into the context of the facts of the instant case, the

question to be addressed is whether or not it has been shown that the NEC

misdirected itself grossly and came up with an unreasonable decision which

warrants this court’s interference.



      As regards the first ground, a reading of the record indicates that the NEC

attached much weight to what it referred to as the bank’s loose systems. It

however did not go further to state categorically whether it was convinced that

the Respondent was guilty as alleged. That could only be inferred from its order

where it denied Respondent back pay citing that she was partly to blame.



      Whilst it is accepted that the banking system was flawed to the extent of

heaping responsibilities on one individual the question still remains whether


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that could absolve Respondent from the         misconduct complained of in the

matter.



      It is pertinent to note the uncontroverted evidence which was led to the

effect that, upon discovery of the money and the deposit slip Respondent

backdated the date on the slip to correspond with the date when it should have

been captured. Such conduct in the court’s view flies in the face of her professed

innocence .If the error was genuine as she alleged there was no rationale in

tampering with the deposit slip.



      It was therefore a gross misdirection in the exercise of the N. E.C’s

discretion to conclude that the shared blame between the bank’s system and

the respondent’s forgetfulness warranted her to be retained by the bank on a

written warning. Such misdirection in this court’s view warrants interference

with the decision of the N.EC.



      What was at stake here are depositors’ funds where the bank owed the

depositors a duty of care to ensure that money left in its custody found its way

to the account concerned. Where a large sum of money like the sum involved in

this case did not find its way to the client’s account and 26 days later all that the

receiver of the money could tell her employer is that she forgot is just not good

enough.



      The fact that Respondent’s superior also did not do his daily checking to

discover the anomaly cannot absolve the respondent from her own wrong

doing. The law is clear that an omission on the part of another employee shall


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not absolve the employee who is charged with misconduct. All that is required is

evidence to show that the misconduct complained of indeed took place. It is

therefore clear that he N.E.C erroneously attached undue weight to the

negligence of the Respondent’s colleague and got convinced that it should

absolve the Respondent from her misconduct on that point .The N. E.C did not

apply its mind to the holistic facts of the case and therefore came up with the

absurd result where it failed to make a finding on the Respondent guilt or

otherwise. This was so notwithstanding the fact that there was ample evidence

to use to rule on that. The court is satisfied that there is merit in the first ground

of appeal.



      The fact that the banking system had its own weakness could not absolve

the respondent from carrying out her mandate with due diligence. In that

respect the weight which was attached to the weaknesses was not warranted as

it did not suffice to absolve the respondent from the misconduct. The first

ground of appeal should therefore succeed for the reasons stated.



      The issue of prejudice which the N.E.C considered was not part of the

terms of reference of all the tribunals below hence there was no need to attach

the kind of weight which N.E.C attached to it.



      On the second ground of appeal N.E.C was swayed by what could be

loosely termed “contributory negligence” of the bank, this being the loose

systems complained of. What it seems to have failed to observe is that it could

only interfere with the dismissal penalty if the penalty was not sanctioned by law

or if it was so outrages in its defiance of logic that it had to be interfered with.


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See the case of Standard Charted Bank Zimbabwe Limited vs Chapuka SC

125 -04



Commenting on the issue of the imposition of a dismissal penalty the judge in

Chipuka (supra) stated the following:
      “Conduct which is found to be inconsistent or incompatible with the fulfillment of

      the express or implied conditions of a contract of employment goes to the root of

      the relationship between an employer and an employee giving the former a prima

      facie right to dismiss the latter. It is then up to the employee to show that his

      conduct, though technically inconsistent with the fulfillment of the conditions of his

      contract, was so trivial, so inadvertent, so aberrant or otherwise, so excusable, that

      the remedy of dismissal was not warranted”



      If the above quotation is applied to the facts of the instant case the

following becomes clear: Respondent received a depositor’s money and for a

whole 26 days forgot about it. When it was discovered she altered the deposit

slip. Such conduct cannot surely be taken as trivial or aberrant as to merit

punishment other than dismissal. The court is persuaded by the Appellant’s

argument that there was no good basis for the N.E.C to hold that dismissal was

irregular in the Respondent’s case. There was nothing placed on the record

which could make anyone formulate the opinion that the conduct complained of

was minor. Depositors repose so much trust in banks and if banks retain tellers

whose level of forgetfulness is to the level depicted by Respondent then that

would surely create problems for the banking sector and the depositors alike.

This court is satisfied that the facts of the instant case are ones where dismissal

cannot be argued to have been an outrageous option. There was no legal basis

for the N.E.C to vary the penalty as it did.

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      Respondent argued that there was no breakdown of trust between her

and Appellant because she was reinstated by the Appellant. Appellant explained

clearly during the proceedings       and to the satisfaction of the court that,

reinstatement was all in a bid to comply with the order of the tribunal below as

it had not applied for its stay and the law obliged it to comply with the award

pending appeal.



      The argument that, reinstatement of the Respondent demonstrated good

working relationship between the parties was therefore misplaced. Similarly, the

argument that reinstatement of the Respondent showed that Appellant had no

confidence in its appeal has no foundation if viewed from the perspective that,

there was nothing irregular about the Appellant complying with the award so as

to come to court with clean hands.



      Respondent also argued that the reinstatement created a legitimate

expectation in the mind of the Respondent that the Appellant was no longer

desirous of pursuing its appeal. The court is however persuaded by the

Appellant’s argument that, if that was so it would have formally withdrawn its

appeal.



      The fact that he appeal remained on the books demonstrated an

intention to pursue the appeal to its logical conclusion. The court is therefore

satisfied that the Respondent’s argument in this respect is not persuasive as it

has no basis. Even the argument of estoppel which the Respondent sought to

raise did not have any legal basis and deserves no further comment from the


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court. To that extent, the argument that the Appellant did not take a serious

view of the Respondent misconduct is not well-placed for the reasons already

advanced. The appeal should therefore succeed on this ground.



      The third ground of appeal is intricately linked with the fourth ground

where the N.E.C is said to have contradicted itself by ordering reinstatement yet

denying the respondent back pay. The argument which was advanced was that

such a course of action demonstrated that the N.E.C acknowledged the fact that

Respondent had been rightly convicted and penalized under the banking sector

employment code of conduct .N.EC thus had no business interfering with the

verdict and the penalty.



      As has already been stated N.E.C by inference showed that it accepted

that Respondent was guilty hence decided not to order her back pay. If the

respondent had been rightly found guilty and penalized there was no need to

interfere with the dismissal penalty.



      The bias complained of by the Appellant cannot be defended given the

fact that the N.E.C went to great length to consider the matter on the basis of

the weaknesses in the banking system without applying its mind to the other

facts which had been raised during the hearings on the matter at the tribunals

before the matter got to N.E.C. The Appellant can therefore not be faulted for

formulating the opinion about bias. There is therefore merit on these two

grounds and the appeal should succeed in that respect.




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       I find when all is said that the appeal has merit on all the grounds. It is

accordingly ordered as follows:



       1. The appeal being with merit be and is hereby upheld with costs.

       2. The decision of the N.E.C Appeals Board is set aside.

       3. The decision finding Respondent guilty of the misconduct complained

           of and the dismissal penalty is confirmed.




L. KUDYA

PRESIDENT: LABOUR COURT




J .Dondo and Partners – Appellant’s Legal Practitioners




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