Brenda Garudzo v Nedbank Zimbabwe Limited (Formerly MBCA Bank Ltd) & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/…/2020
HARARE, 3 NOVEMBER 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/…/2020

HARARE, 3 NOVEMBER 2020		             CASE NO. LC/H/LRA/128/19

AND 2020

In the matter between:-

BRENDA GARUDZO					Applicant

And

NEDBANK ZIMBABWE LIMITED			1st Respondent

(FORMERLY MBCA BANK LTD)

And

LYNETTE NASHE						2nd Respondent

Before Honourable B.S. Chidziva, Judge

Applicant			In person

For 1st Respondent	Ms R. Magundani (Legal Practitioner)

For 2nd Respondent	Ms C. Mahlangu (Legal Practitioner)

CHIDZIVA, J:

This is an application for confirmation of the draft ruling by Labour Officer Brenda Garudzo that was handed down on the 8th of March 2019.

The brief facts of the matter are that,

The 2nd Respondent was employed by the 1st Respondent as a Sales Consultant in November2013.

In November 2016 she was promoted to the position of a Team Leader.

On the 26th of May 2017 she was charged with misconduct and she was dismissed from employment on the 3rd of August 2017.

She appealed to the Appeals Committee but before the Appeals Committee had made a decision she then referred the matter to the Labour Officer.

The Labour Officer allowed the appeal and ordered that the 2nd Respondent be reinstated to her original position without loss of pay and benefits and if reinstatement was no longer an option either party was to approach the Tribunal for quantification of damages in lieu of reinstatement.

The 2nd Respondent was charged for an act inconsistent with the fulfilment of the express or implied conditions of her contract. The main allegation was that she sanctioned improper change transactions i.e.

That she changed small notes to big notes and some of those transactions were not recorded in the bank system.

That she handled cash which she was not supposed to handle.

That she processed transaction out of the view of the clients.

It is common cause that,

The second Respondent was promoted to the position of the team leader.

The second Respondent did not have a job description.

Godfrey Mubvumbi was the sole witness in the hearing.

The CCTV footage which was the source of evidence during the hearing was not adduced during the hearing.

What is to be decided is whether or not the Labour Officer erred in her findings.

A proper job description would have assisted the Disciplinary Committee to assess whether or not the 2nd Respondent could handle cash. It would have assisted the Disciplinary Committee in assessing whether the 2nd Respondent was guilty of acts on omissions inconsistent with her contract of employment.

Mr Mubvumbi could not even state whether 2nd Respondent was a branch manager or Team Leader. During cross-examination he stated that a team leader could handle cash whenever the need arises.  From this it is not clear as to whether or not a team leader could handle cash. It was therefore not disputed that as a Team Leader she was responsible for both sales and operation duties and thus at times she could perform Teller duties.

Godfrey Mubvumbi was the only witness in this case. It has not been disputed that Mubvimbi just relied on the charge letter. There is no evidence of substance that he adduced. The investigation report was not adduced. Even the auditor who compiled the report did not attend the hearing.

Hoffman and Zerfort in SA Law of Evidence 4th Edition at page 263 stated that,

“Oral or written statements by persons who are not parties and are not called as witnesses are inadmissible to prove the truth of the matters stated.”

Mubvumbi just stated what was in the charge sheet.  The auditor’s report cannot be relied on since he did not appear before the hearing officer to relate his findings. In the circumstances their evidence is inadmissible. It is also a trite principle of law that he who alleges should prove.

Mubvumbi also indicated in his evidence that the CCTV was his evidence but the CCTV was not produced. It is the 1st Respondent’s submission that the 2nd Respondent refused to view the footage. There is nothing on record to prove that 2nd Respondent refused to view the CCTV. On page 158 the Mr Mubvumbi refused to bring witnesses. He also said that,

“CM argued that it was not her duty to present that evidence as the witnesses in question were Complainant’s witnesses and the CCTV was also Complainant’s evidence.”

The hearing officer therefore did not see the footage and thus had no evidence to come up with the finding that he made.

In the case of National Foods Limited vs Masukusa 1994 ZLR 160 it was held that,

“For a person to be convicted of committing any act or omission inconsistent with the express or implied conditions of his contract of employment the conduct complained of must be such as to show that the employee disregarded the essential conditions of his contract of service express or implied to the extent that the substructure of employer … employee in relations was destroyed.”

In the case of Tobacco Sales Floor Limited v Chimwala 1987 (2) ZLR 210 it was held that,

“It is also submitted that for an inconsistent act to warrant dismissal, it should amount to disowning in or repudiating the contract of employment which is not the case in the present matter.”

The first Respondent failed to prove its case before the hearing officer because the CCTV footage was not adduced, valid evidence from witnesses was not adduced and the contract of employment for the 2nd Respondent was not produced.

In the circumstances it is ordered that,

The ruling by the Labour Officer Brenda Garudzo dated 8th March 2019 be and is hereby confirmed.

The 2nd Respondent be and is hereby reinstated to her original position without loss of salary and benefits within 30 days of receiving this ruling.

If reinstatement is no longer an option either party can approach Labour Officer for quantification of damages in lieu of reinstatement.

The 1st Respondent shall pay costs in the sum of $73-00 within 21 days of this order.

Scanlen & Holderness, 1st respondent’s legal practitioners

Munyaradzi Gwisai and Partners, 2nd respondent’s legal practitioners