Donald Mhishi v Standard Chartered Bank Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/213/2020
HARARE, 3 MARCH, 2020
CASE NO. LC/H/227/17
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/213/2020

HARARE, 3 MARCH, 2020			     CASE NO. LC/H/227/17

AND 9 OCTOBER, 2020

In the matter between:

DONALD MHISHI								APPELLANT

Versus

STANDARD CHARTERED BANK ZIMBABWE

LIMITED									RESPONDENT

Before The Honourable Hove J;

For Appellant:		Mr A. Moyo (Legal Practitioner)

For Respondent:		Mrs Z. Majena (ZIBAWU Legal Officer)

HOVE J:

This is an appeal against the decision of the National Employment Council Appeals Board of the banking undertaking (the appeals board) by the Appellant (the employer). The Respondent noted a cross appeal. These proceedings are to determine both the appeal and the cross appeal.

For ease of reference, the parties will be referred to as the employer and the employee.

The Brief background is that the employee was employed at the Masvingo Branch of the employer as a vault/strong room dual custodian.  He was charged with misconduct it being alleged that he had contravened a category ‘D’ clause 11 (1) offence, that is;

“any serious act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his employment contract where such is not provided for under category A, B or C.”

The facts which gave rise to these allegations were that on 6 August 2016, the employee was alleged to have failed or neglected to lock the strong room door in contravention of the Global Process Standards 6.2 (1) on dual control which states that;

“the vault/strong room door must always be opened and closed under dual control.”

This omission happened on a Saturday before the long holiday on Monday 8 August and Tuesday, the 9th of August 2016. The employee, it was alleged, ought to have locked the strong room but he failed or neglected to do so.

The disciplinary committee found him guilty and dismissed him.

He appealed against the decision of the disciplinary committee and there was no consensus therefore the matter was referred to the appeals board. The appeals board upheld the finding of guilt by the hearing officer. It stated in its findings as follows;

“The Appeals board upheld the verdict of the hearing officer in finding the appellant guilty of a category D clause 11(1) offence with a misconduct charge of conduct inconsistent with implied terms of his employment contract, however the Appeals Board was of the view that given the above-mentioned factors, the hearing officer misdirected himself in imposing a penalty of dismissal”.

In other words, the appeals board found that the penalty impose was too severe, and it imposed a less harsh penalty. The employer was aggrieved. It noted an appeal against the imposition of a less harsh penalty and the employee too was aggrieved and cross appealed.

The appeal and the cross appeal are the subject of this current dispute between the parties.

The grounds for appeal by the employer are that:

1)	Having found, as it did or must be taken to have done, that respondent was properly charged and convicted of a category “D” clause 11 (1) offence (which itself is a dismissable offence) the appeals board erred and misdirected itself in law in contradictorily and impliedly finding that Respondent had not committed a dismissable offence.

2)	The Appeals Board erred and misdirected itself in law in interfering with the penalty of dismissal imposed by the hearing officer in a situation where there was no factual and / or legal basis to do so.

3)	Overally, the Appeals Board misapplied the legal principles applicable to the imposition of penalties/sentences in Labour matters and thus committed an error of law in imposing the penalty of a “severe written warning” in the circumstances of the matter.

The employee in the cross appeal raised the following issues;

1)	The Appeals Board erred at law in finding that the Appellant in reconvention was guilty of a category D (1) and yet it accepted contradictorily, that the undisputed facts of the matter was that the Appellant in reconvention failed to comply with standing instructions. Such a finding placed the offence under category B and automatically removed it from category D.

2)	Consequently, the Appeals Board misdirected itself in imposing a severe written warning penalty when there was no legal basis to do so and the appellant should have been discharged.

For different reasons, both parties appear to be at one in that they agree

that there was no legal basis to impose the severe written warning penalty on the part of the appeals board.

The employee’s argument is premised on the fact that the category D offence which was preferred against the employee was incompetent on the basis that the charge itself states that it can be preferred

“where such in not provided for under category “A” “B” or “C”.

These other categories do not necessarily carry a dismissal penalty as does category D offences. So, the parties agreed that category D offences can only be preferred where the offence committed is not provided for under categories ‘A’ ‘B’ or ‘C’ in their code of conduct, ie the agreement between the employers and the employees.

During arguments in court, the employee’s representative clarified that they are not querying the charge preferred by the employer but their argument was based on the fact that the employer had failed to prove all the elements of the charge in that the charge ought to have been preferred where the act complained of is not provided for under categories ‘A’, ‘B’ or ‘C’.

They argue that what the employee did was to fail to comply with instructions. The hearing officer thus misdirected himself when he found that the act complained of was a breach of a category D offence when all the elements of a category D offence were not satisfied. This is because, it was argued, the breach was one that was provided for under the categories ‘A’, ‘B’ or ‘C’. To satisfy all the elements, it must have been shown that failing to comply with instructions was not provided for under categories ‘A’, ‘B’ or ‘C. This element was not satisfied.

Both parties appear to accept that it is the employer’s prerogative to decide which charges to prefer. In this case the employer was within its rights to prefer a Category D offence. All the employer needed to do was to prove its case on a balance of probabilities. Did the employer prove its case against the employee?. The employee’s representative submitted that the employer failed to prove that the conduct that is complained of is not provided for under categories ‘A’, ‘B’ or C.

She argued that what the employee did was failure to comply with standing instructions or negligence as provided for under category “B” offences. Since such conduct is provided for under category “B” it becomes incompetent for the employer to charge the employee under a category “D” offence, in other words, the employer failed to satisfy an essential element of the category ‘D’ offence preferred which was that the conduct complained of must not be provided for under categories “A”, “B” or “C”.

The employer’s view was that the employee had failed to perform his duties and a breach of duty goes to the root of the contract. Is this misconduct provided for under categories “A’ “B” or “C”?. I do not believe that the conduct complained of falls under either “A”, “B” or “C” categories.

There may have been an element of negligence and there may have been a failure to follow procedure yes but the employer did not view the employee’s conduct as mere failure to comply with standing instructions provided for under category “B”.

The employer took a serious view of the employee’s conduct and viewed it as a

failure to do his duties, a breach which went to the very root of the contract of employment. The employer, through the complainant said;

“Your actions were against your implied terms and conditions of service, that you should safeguard the employer’s assets at all times”.

The employer took into account that the strong room which was not locked is where the bank kept its assets and depositor’s cash. The employee played an independent role from the other custodians. His breach was thus viewed seriously by the employer who preferred a category ‘D’ offence.

Category “B” offense of negligence or failure to comply with standing instructions did not fit the offence which had been committed according to the employer. It becomes apparent from the above that the argument that category “B” offences provided for employee’s conduct is not correct. Category ‘B’ offences do not cover the offence committed by the appellant. The employer did not view it as a mere failure to comply with standing instructions but a breach which went to the very root of the employee’s contract of employment. His duty was to lock the strong room, he failed to perform his duty.

It was argued that in the case of Stanbic Bank Zimbabwe Limited v Suggest Ruzave LC/H/701/2015 honourable Manyangadze J found that the employee’s conduct fell under category “A” offences and thus it was incompetent to charge him under category ‘D’ offences in view of the contract between the parties (their code of conduct) which provided (as it does in casu) that where certain conduct is provided for under categories ‘A’, ‘B’ or ‘C’, an employee cannot be charged with a category “D” 11 offence.

The Court found in that case that the conduct complained of fell under category “A” offences. In casu, I have made a finding that the conduct complained of did not fall under category “B” offences so it was proper to charge the employee under category “D” 11(1) of the code. The conduct complained of, that is failure to lock the strong room/vault where the bank kept its assets and depositor’s monies when one was employed as a vault/strong room dual key custodian was failure to do his duties, a failure which went to the very root of the contract of employment. The bank considered this a very serious duty to the extent that it employed 3 different custodians each conducting his duties independently of the other 2. Failing to realize the seriousness of the need for security in a bank and then failing to lock the vault is in my opinion a serious breach different from the mere failure to follow procedure provided for under category “B” and in view of the fact that he was employed as a vault/strong room dual key custodian he failed to perform his duties.

The case of Zimasco (Pvt) Ltd v Chizema 2007 (2) ZLR 314 (S) which held that where the evidence does not support the charge preferred by the employer the accused employee is entitled to an acquittal is clearly distinguishable from this case where an employee employed as a dual key custodian fails to perform the duties he is employed to do, that is, locking the strong room. This is a complete obrogation of one’s core duties and the conduct was admitted.

The employee was properly found guilty of conduct inconsistent with the fulfilment of his duties. See in this regard the case of Standard Chartered Bank of Zimbabwe Limited v Chapfuka SC 125/04 where the court said conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and employee giving the former a prima facie right to dismiss the latter.

Sentence

The issue of sentencing has now been settled in this jurisdiction. Several Supreme court judgments have made this very clear that the issue of sentencing after an employee is found guilty of an act of misconduct is clearly one of discretion. It is trite that an appeal court does not interfere with the exercise of discretion by a lower tribunal unless it is shown that the discretion was improperly exercised. The penalty imposed must show a serious misdirection to justify interference.

See the cases of:

Passmore Malimanji v Central Africa Building Society (CABS) SC47/07.

Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (S).

Mashonaland Turf Club v George Mutangadura SC 5/12

Circle Cement (Private) Limited v Chipo Nyawasha SC 60/03.

In casu, it is this court’s finding that the employee was properly found guilty. There was therefore no basis for the appeals board to interfere with the penalty. It is not enough for an appellate body to think that if it had been in the lower tribunal’s shoes it could have imposed a less severe penalty and then go on to impose such lesser penalty. The appeals board ought to have realized that it was for the employee to show that the conduct complained of was so trivial, so inadvertent, so aberrant or otherwise so excusable, then, under those circumstances, the imposition of a lesser penalty would be justifiable. In casu, the employee did not discharge this onus upon him to warrant interference by the appeals board.

The accepted facts show that this was a serious misconduct, an employee employed as a key custodian, failing to perform the very core of his duties. I do not see how he could argue that his failure to lock the vault was trivial or excusable. There was just no justification for interference with the penalty meted out.

In Circle Cement (Pvt) Limited v Chipo Nyawasha S66/03 the court had this to say;

“once the employer had taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment, the question of penalty less severe than dismissal being available for consideration would not arise”.

The misdirection of the appeals board in imposing a less severe penalty thereby interfering with the employer’s discretion is left in no doubt.

In the result, the appeal must succeed and the cross appeal must fail. The following order is made;

Order

1.	The appeal succeeds

-	The decision of the appeals board is set aside and the following is substituted;

-	The dismissal of the employee as per the first determination by the hearing officer be and is hereby upheld.

2.	The cross appeal is dismissed.

3.	Each party will bear its own costs.

Kantor & Immerman	-	Appellant’s Legal Practitioners