British America Tobacco Zimbabwe v Jonathan Chibaya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
HARARE, 30 JULY 2014
JUDGMENT NO LC/H/773/2014
CASE NO 773/2014
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/773/2014

HARARE, 30 JULY 2014 &			          CASE NO LC/H/269/2014

& 21ST NOVEMBER 2014

In the matter between:

BRITISH AMERICA TOBACCO ZIMBABWE				APPELLANT

Versus

JONATHAN CHIBAYA							RESPONDENT

Before The Honourable B S Chidziva	:	Judge

For the Appellant		S Chako	(Legal Practitioner)

For the Respondent	S Chikambi  (Legal Practitioner)

CHIDZIVA J:

This is an appeal against the decision of the National Employment Council Industry Grievance and Disciplinary Committee 9”NEC Disciplinary Committee”) handed down on 7 February 2014. In its findings the Disciplinary Committee found that the appellant failed to prove a prima facie case against the Respondent. It then made the order which is couched as follows:

“The decision of the Works Council to dismiss Jonathan Chibaya (“the appellant”) is set aside. The appellant is to be reinstated without loss of pay and benefits or is to be paid damages in lieu of reinstatement.

The parties are to agree on the damages failure of which they may refer the matter to the NEC Grievance and Disciplinary Committee for the quantification of damages.”

The grounds of appeal are that:

Having accepted that there was possibility of connivance between the respondent and the bank personal in the commission of the fraudulent transaction complained of, the NEC Disciplinary Committee erred at law in holding that the appellant failed to substantiate its claim.

The NEC Disciplinary Committee grossly misdirected itself in disregarding the forensic report of the handwriting expert.

The NEC Disciplinary Committee grossly misdirected itself in putting emphasis on the evidence that was not placed before it.

The NEC Disciplinary Committee erred in law in conducting the appeals hearing in a manner akin to a fresh hearing of the matter. In this regard, the NEC Disciplinary Committee improperly exercised its powers on appeal.

The NEC Disciplinary Committee erred in fact and at law in totally ignoring the point raised by the appellant with regards the existence of two identification details on the withdrawal slip used in the fraudulent transaction.

The NEC Disciplinary Committee erred in fact and at law in totally ignoring the point raised by the appellant with regards the existence of two identification details on the withdrawal slip used in the fraudulent transaction.

The NEC Disciplinary Committee grossly misdirected itself in holding that the fraudulent transaction must have been committed by a bank personnel.

On these grounds the appellant prayed that the decision of NEC Disciplinary Hearing Committee should be set aside and the decision by the Works Council dismissing the respondent should be upheld.

The respondent on the other hand told the court that:

The possibility that the respondent connived with the bank personnel was not supported with evidence.

The way the signatures were constructed could not be identified by examining photocopies.

There is clear evidence on record that the fraudulent transaction was committed by the bank personnel. The respondent only went to withdraw money upon instructions from the appellant.

The respondent therefore prayed for the dismissal of the appeal with costs.

The brief history of the matter is that the respondent was employed by the appellant as the Trade Market Representative for Mutare. In 2012 two withdrawals were made from BAT Zimbabwe Mutare Stan Chart Account using the same withdrawal instruction. An amount of $2 605-00 was withdrawn on each of the two occasions i.e. on 18 May 2012 and 31 May 2012. The withdrawal slips were made by one John Chibaya. The respondent was charged for the fraudulent withdrawals and he was found guilty by the Disciplinary Committee. He appealed to the Works Council which also upheld the dismissal penalty. The respondent appealed to the NEC Grievance and Disciplinary Committee which then set aside the decision of the Works Council. The appellant is now appealing against the decision of the NEC Disciplinary Committee.

It is common cause that:

Two withdrawals were made on the same instruction;

The withdrawal slips were purportedly made by Jonathan Chibaya;

Report by the handwriting expert was obtained from the examination of photocopies;

At the initial hearing Stanchart Mutare Branch could not provide video footage of 31 May 2012, vehicle tracking system report and Econet Call History Analysis of 31 May 2012 due to lapse of time;

It took more than a year before the respondent was charged.

The transaction of 31 May 2012 was done at 0800 hours i.e. the time doors of the bank are opened.

What is to be decided is whether the NEC Grievance and Disciplinary Committee erred by setting aside the dismissal penalty or not.

The withdrawal was facilitated by a bank official hence the money that was withdrawn from the appellant’s bank account. The second withdrawal is said to have been effected at 0800 hours i.e. the time that the doors to the bank are opened. There is no evidence to show that the respondent was already in the bank at that time. Furthermore the forensic report was based on photocopies and not the original documents. The documents relating to the withdrawal of money were kept at the bank.

From these facts what is very certain is that the bank was directly involved in the fraudulent activities. What is not clear is whether the respondent was involved or not. The bank could have used documents used previously to capture the signature and identity particulars of the Respondent.

To that end therefore this court finds that the appeal lacks merit.

Accordingly it is hereby ordered that:

The decision of the NEC Grievance and Disciplinary Committee be and is hereby upheld.

The appellant is to bear costs of suit.

Mushangwe & Company, appellant’s legal practitioners

Muringi & Kamdefwere, respondent’s legal practitioners