Barclays Bank of Zimbabwe v Perpetua Nyamayaro

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/188/2016
HARARE, 5 OCTOBER 2015 & CASE NO LC/H/430/2015
18 MARCH 2016
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/188/2016

HARARE, 5 OCTOBER 2015 &			            CASE NO LC/H/430/2015

18 MARCH 2016

In the matter between:

BARCLAYS BANK OF ZIMBABWE					APPELLANT

Versus

PERPETUA NYAMAYARO						RESPONDENT

Before the Honourable E Makamure J

For the Appellant	E T Moyo (Legal Practitioner)

For the Respondent     Ms Z Chirombe (Trade Unionist)

MAKAMURE J:

The respondent was dismissed from the appellant’s employ following disciplinary proceedings. On appeal to the G & DC Appeals Committee, the respondent was successful. The G & DC altered the severity of the charge. It also reversed the dismissal penalty to a final written warning. This aggrieved the appellant and it appealed to the National Employment Council Appeals Board of the Banking Undertaking (NEC). The NEC declined from considering the merits of the case and dismissed the appeal noting that the appeal had been noted a day out of time. The time frames are set out in the applicable Code. Aggrieved by the decision of the NEC the appellant appeals to this court on the following grounds:

The NEC Appeals Board grossly misdirected itself on the facts so as to amount to an error at law in that it found unreasonably so, that the appeal before it had been noted out of time more particularly as there was evidence that the appellant had only been notified of the determination on 10 March 2014 as opposed to 4 March as was held by the Appeals Board.

The NEC appeals board consequently misdirected itself and erred at law in failing to consider the merits of the appeal before it in the circumstances.

On 19 March 2014 the NEC wrote the appellant as follows:

“Re:  LATE APEAL BY BARCLAYS BANK OF ZIMBABWE: PERPETUA NYAMAYARO v  BARCLAYS BANK

This letter serves to inform you that the NEC Appeals Board received separate documents from the appellant, Perpetua Nyamayaro, aside from the case file sent by the bank which was dated 12 March 2014 (see attached copy)

The NEC Appeals Board requires the bank to respond/acknowledge this late appeal by Perpetua Nyamayaro before it commences with its deliberations on the mater

…”

On 18 March the chairman of the G & DC Committee wrote the appellant along the following lines:

“This letter serves to confirm that I chaired the G & DC Committee proceedings that was constituted to hear Mrs P Nyamayaro’s appeal against the decision of the hearing Officer.

The committee sat on 28 February 2014 to hear the mater and the matter was concluded the same day. The decision letter was served on the appellant on 4 March 2014.

The compilation, review and sign of the record of proceeding, was only completed on 10 March 2014. The record together with the letter setting out the findings of the G & DC was only delivered to the business on 10 March 2014.

Prior to that date, the parties had not been advised of the outcome given the outstanding formalities regarding the record of proceedings as afore stated. This remains so notwithstanding the date of the signature as appearing in the minutes as well as the letter addressed to both parties.” (Emphasis added).

The NEC received this letter on 19 March 2014.

It is observed that the query raised by NEC on 19 March 2014 was responded to by a letter written before the query was raised, that is on 18 March 2014. The letter of 18 March was addressed to the appellant and copied to the respondent.

On the other hand the respondent complained to the NEC after she had received a communication of late noting of an appeal on 17 March 2014 (p 15). Part of her letter reads:

“I write to register my objections against the appeal which was lodged Friday 14 March 2014 by Barclays Bank of Zimbabwe Limited on the grounds that it was filed outside the time period stated in the Code of Conduct which binds both employers and employees.

The Grievance and Disciplinary Committee announced its decision to reinstate me on 14 March 2014. Accordingly the Bank was required to lodge its appeal within seven days to the Appeals Board as required by Clause 6 (5) of the Code of Conduct. The window period thus expired on Thursday 13 March 2014”.

The G & DC had on its part had on 4 March 2014 wrote through Mr Hombiro, its Chairman to the appellant for the attention of one Nixon Vamwe as follows:

“Dear Nixon

Re:	PERPETUA NYAMAYARO APEAL TO THE GRIEVANCE & DISCIPLINARY COMITEE

Having conducted a Grievance and Disciplinary Committee, the committed (sic) made a decision and reversed the offence of Perpetua Nyamayaro from Category D Section 1 subsection 17 – Failure to comply with standing instructions or following established procedures resulting in substantial loss to the bank to Category “C” section 10 subsection (2) – negligence causing a substantial loss to the bank – final written warning.

Deliberations are contained within the minutes held on 28 February 2014.

Yours faithfully

…”

The above letter is addressed to the appellant and not to the respondent. There is no stamp indicating that this letter was received on 10 March or on any other date. There is no separate letter addressed to the respondent. It can only be assumed that the letter dated 4 March 2014 was received by the appellant on that same date. This supports the respondent’s position that the decision was “announced” to the parties on 4 March 2014 as opposed to the letter by the same Chairman on 18 March that prior to 10 March 2014 parties “had not been advised of the outcome.”

The findings of the NEC or its observations were:

That the case had been heard by the G & DC on 28 February 2014.

The decision of the G & DC had been communicated on 4 March 2014.

That the respondent then appealed against the G & DC decision to the NEC Appeals Board on 14 march 2014.

The NEC therefore found that the appeal had been noted out of time.

The NEC had no power to condone the late noting of that appeal and consequently it dismissed the appeal.

Unfortunately this court has got no power to grant condonation where an appeal was filed out of time in terms of the domestic remedies. This is so because this court is a creature of statute. It can only do those things which are specifically provided for in The Act.

When parties argued before me Mr Moyo argued that the appellant fell into error when it noted with respect to the date of reckoning. The date should have been 10 March instead of 4 March. This has been discussed above when consideration was made of the correspondence between the parties. The date of reckoning was 4 March 2014.

The court was referred to Barclays Bank of Zimbabwe v Naome Mazenge & Anor LC/H/47/15 in which the appellant in that case on appeal had been noted out of time and the NEC for that reason could not entertain the said appeal. This court accepted that the date of reckoning was the date when the aggrieved party received the decision in question. I agree. In the present case the aggrieved party received the decision on 4 March 2014 and that is when the time started running. The case of Rimuka Islamic Society v Enock Mwashuhwa H-124/15 was one of the cases cited in support of the respondent’s case. In that case the High Court stated:

“The onus is on the plaintiff to prove its case against the defendant on a balance of probabilities. The position of the law is that where there are two versions which are mutually destructive, before the onus is discharged, the court must be satisfied upon sufficient grounds that the version advanced by the party upon whom the onus rests is true and the other is false.”

The appellant is therefore required to discharge the onus, on a balance of probabilities that the appeal before the NEC was properly before it, and it was not noted out of time. It is clear that the appellant has not discharged the required onus.

The Collective Bargaining Agreement: Banking Undertaking Statutory Instrument 273/20 provides as follows:

“6. 	Appeal

1 ..

2..

3..

4..

5.	Any employee or employer who is dissatisfied may appeal to the employment council within seven days against the decision of the grievance and disciplinary committee by completing the form V in duplicate.”

The form V which is a notice to the NEC is not part of the documents placed before the NEC. That form does not form part of the record placed before the court. The form has space for the date of clearance and date of submission. Had this form V form been part of the documents placed before the N E C, I am sure that its (the NEC’s) job would have been easier. All the relevant information would have been clear and parties would not have struggled so much to prove the day of reckoning. It is the appellant which was supposed to supply this basic information to the NEC. It did not.  None the less, the NEC made findings on the basis of what was placed before it. In view of what was placed before it, which has also placed before me, I find no misdirection or error at all with its findings. In Hama v National Railways 1996 (1) ZLR the Supreme Court held that:

“In other words the decision must have been irrational in the sense of being so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied his mind to the question would have arrived at such a conclusion.”

In the present case, the NEC calculated the period within which the appeal before it ought to have been noted. It found that the appellant was out of time. I find no misdirection in that finding. The NEC adhered to the provisions of the Code of Conduct which binds both parties.

It is correct that the NEC did not deal with the merits. It could not, as it found that the appeal was noted out of time.

The Mazenge case which was cited shows that the delay caused in that mater was due to the absence of the employment relations manager. Such an assertion has not been made in the present case. So the facts in the Mazenge case are distinguishable from the present mater. It therefore does not support the present matter.

Ms Chirombe argued that the grounds as they are amount to challenging the procedure adopted by the NEC. That being the case, the grounds are not properly before me. In response Mr Moyo for the appellant argued that it is not irregular to challenge procedure by way of appeal. I disagree. It is trite that issues of procedure are raised by way of review as set out in section 89 of the Act (as amended) and Rule 15 of the Rules of this court.

Having stated the above I find that there is no merit in the appeal.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

Scanlen & Holdernes, appellant’s legal practitioners