Barclays Bank of Zimbabwe Limited v Chenai Ntini

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/666/2013
HARARE, 13 NOVEMBER 2013
CASE
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/666/2013

HARARE, 13 NOVEMBER 2013		           	                   CASE NO. LC/H/189/12

AND 06 DECEMBER 2013

In the matter between:-

BARCLAYS BANK OF ZIMBABWE LIMITED		 		Appellant

And

CHENAI NTINI 								Respondent

Before  Honourables  Muchawa J

Maxwell  J

For Appellant		J Chilimbe (International Legal Counsel)

For Respondent		T. Marimo (ZIBAWU)

MAXWELL J.;

Respondent was employed by the Appellant as a clerk for 24 years.  She was stationed at the Appellant’s Borrowdale Branch.  Respondent, like any other employee of Appellant was entitled to a school fees benefit.  To access such benefit, Respondent had to submit acceptable documentation from the school attended by her children.

On 15 April 2009 Respondent appeared before a disciplinary Committee.  She was charged with breaching Section 11 (5) of the Code of Conduct.  The allegations were that sometime in February 2009 she fraudulently presented two school fees invoices to the human resources department of the Appellant claiming $600 for her children Notando Ntini and Natasha Ntini.  The invoices were from Borrowdale School which school her children were not attending.  One of her children was attending St Albert High School in Mount Darwin and the other Glen View 7 Primary School.  She was found guilty as charged and was dismissed from employment.

She appealed to the Grievance and Disciplinary Committee (G & D.C).  The appeal hearing was on 29 April 2009.  The overall determination of the Committee was-

“After a lengthy deliberation the Committee agreed that the Appellant did commit the offence as charged.  The Committee upheld the decision.

However the Committee felt that the penalty of dismissal was rather harsh after taking into consideration the following extenuating circumstances ………………………..”

The Committee recommended that the Bank uses its discretion and reinstate her with a demotion and coaching to be done.

On 13 May 2009 the Chairman of the G & D.C. wrote to the Respondent advising her that the Committee had upheld the decision by the hearing officer and that she remained dismissed.  Respondent was also advised of her right to appeal to the National Employment Council Banking undertaking within 7 days from the date of receipt of the letter.  Respondent appealed to National Employment Council and the notice of appeal was received on 29 May 2009.  She challenged the letter by the chairman on the basis that the contents of the letter were different from the decision of the G & D.C.  The Respondent understood the decision of the G & D.C. to be reinstatement with a demotion.  The National Employment Council Banking Undertaking (NEC) remitted the matter back to the G & DC “to make decision clear”.

Appellant appealed to this Court against the decision by the NEC.  This Court in judgment number LC/H/197/2011 found no fault with the NEC’s decision to remit the matter to the G & D.C. for a determination.  Submissions had been made that some members of the G & D.C. had since resigned and could not be located.  The Court ruled that if the same G & D.C. could not be reconstituted then the matter could be heard by a different G & D.C.

On 9 November 2011 a different G & D.C. met and deadlock was declared.  The Committee agreed to reconvene on 15 November 2011.  On the subsequent meeting another deadlock was declared.  The matter was thereafter referred to the NEC.

The NEC Appeals Board ruled that Respondent deserved leniency.  It ordered the reinstatement of the Respondent with effect from 15 March 2012 with no order to pay any back pay and benefits from the date of the original dismissal which was 15 April 2009.  In the event that reinstatement was not tenable the parties were to negotiate on the issue of damages failing which either party could approach the NEC for quantification of the appropriate damages.

The appellant was aggrieved and appealed to this Court.  The grounds of appeal are:

The NEC Appeals Board improperly exercised its discretion and erred in substituting the penalty of dismissal imposed by the Hearing Officer who initially sat to adjudicate over the proceedings.  There was no justification in interfering with the exercise of discretion by a lower tribunal which discretion had been properly exercised.

The NEC Appeals Board failed to apply its mind to the matter before it and made a number of incorrect findings of fact.

The NEC Appeals Board failed to apply its mind and balance the mitigating and aggravating circumstances surrounding the offence but in fact placed undue weight and emphasis on what it perceived to be mitigating factors.

The NEC Appeals Board failed to take into account all the relevant circumstances of the matter and in particular, the history of the matter and the practicalities required given such history.

The NEC Appeals Board completely failed to take into account the clearly aggravating circumstances of the respondent’s infraction whereby among other reasons, she deliberately and intentionally submitted a false claim with the intention to mislead the employer.

Appellant prayed for the setting aside of the NEC Appeals Board order and for the dismissal of the Respondent.

The Respondent’s response to the grounds of appeal was:

The NEC is clothed with powers to confirm the decision of the hearing officer or to set it aside in line with the evidence before it. Therefore the Appellant cannot just make a bold assertion that the NEC improperly exercised its discretion.  The NEC has wide powers.

It is not in doubt that the Respondent was entitled to school fees allowance up to USD250 and what she asked for was less than the USD250.  Could it then be said that the Respondent had an intention to defraud the Appellant.

The NEC had to pay due regard to the Labour Court order to the effect that the matter be remitted to the G & D.C. for a determination on penalty.  A determination on penalty will ordinarily look at aggravating and mitigating factors.  The NEC accordingly on a balance of probabilities, found in favour of the Respondent.

At the hearing of this matter Appellant emphasized that it is well settled law in our Courts that the discretion of a lower tribunal should not be interfered with unless there are good and sufficient reasons.  It was further submitted that the discretion that was exercised by the hearing officer that resulted in the dismissal of the Respondent should be upheld as Respondent’s actions were premeditated, needless and were bound to throw the whole system into disrepute.

It was submitted for the Respondent that the Court should take judicial notice of the period in which the misconduct arose, January 2009, when the country was not yet in the multi-currency regime.  It was submitted that economic challenges caused Respondent to act as she did.  The Court does not agree that economic challenges can be used as an excuse to act in the manner Respondent did.  She should have found a lawful manner of dealing with her challenge.  Moreover the reason she gave for acting as she did is not that schools were reluctant to issue invoices in united states dollars for fear of reprisals as submitted on her behalf.  The reason she gave appears in her letter to the Manager Security department on page 81 of the record.  Therein she states:

“I did not have the money to go to Mt Darwin to get the invoice”

She repeated the same reason on the initial hearing in the hearing before the G & D.C.

The success or failure of the appeal hinges on the grounds of appeal.  It is important to analyse the issues raised therein.  Firstly, the question is whether or not there was justification for the NEC Appeals Board to interfere in the exercise of discretion by the hearing officer.  It seems to me that the answer is that there was no justification.

The reason given for interfering with the penalty imposed by the hearing officer is

“In light of the mitigating factors that exist in this case ……… “

The mitigatory factors are

1 - length of service – 24 years.

2 - that this incident was the first time Respondent had committed an offence.

3 - that Respondent had demonstrated contrition.

4 - that there had not been proper communication from Human Resources.

5 - that there was no element of prejudice in this case.

6 - that incident occurred just prior to the introduction of the multi-currency regime

When most schools did not want to be seen to be breaching the law by charging

School fees in foreign currency.

The mitigatory factors do not justify interference with the exercise of discretion by the hearing officer.  Length of service can be both mitigating and aggravating.  One would have expected a person of such long standing to be more prudent in her dealings. In any event, the Supreme Court in the case of Mashonaland Turf Club v George Mutangadura SC 5/2012 confirmed the dismissal of a managerial employee who had been employed for 20 years.  It held that a penalty of dismissal imposed by an employer should not be altered because the appellate court does not agree with it.  It reiterated that in the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment.

The Supreme Court has also held that

“The reliance on the fact of the Respondent being a first offender to set aside the dismissal in the absence of a finding of misdirection on the part of the employer was improper”

per Malaba DCJ in the case of Z.B. Financial Holdings v Maureen Manyarara SC 3/2012.

I find that the issue of prejudice is not relevant to the assessment of an appropriate penalty.  As stated in the case of Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6/2012.

“The Offence committed involved a betrayal of trust and confidence reposed in the Respondent by the Appellant thereby going to the root of the relationship between the employer and employee”.

The fact that there had not been proper communication from Human Resources is disputed by the Appellant.  The period at which the incident occurred is immaterial.  As stated before Respondent did not raise the problem of difficulty in getting an invoice from the correct school due to the school’s reluctance to issue one.  Her problem was lack of funds to travel to the school.

For the reasons stated above, the NEC Appeals Board had no justification in interfering with the discretion of the hearing officer.  As a result the first ground of appeal succeeds.  I do not find it necessary to go into the merits of the remaining grounds of appeal.

Accordingly the appeal succeeds.

It is ordered that

The order by the National Employment Council Appeals Board be and is hereby set aside.

The Respondent’s dismissal is hereby confirmed.

…………………………………………

Maxwell J

………………………………………….

Muchawa J