F.B.C. Bank Limited v Dionne Kwezani

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/85/2016
HELD AT HARARE, 01 APRIL 2015
CASE NO. LC/H/1025/14
AND 19 TH
JUDGMENT NO. LC/H/.../2015
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/85/2016

HELD AT HARARE, 01 APRIL 2015			   	     CASE NO. LC/H/1025/14

AND 19TH FEBRUARY, 2016

In the matter between:-

F.B.C. BANK LIMITED			Appellant

And

DIONNE KWEZANI			Respondent

Before The Honourable E. Makamure, Judge

For Appellant		Mr. A.K. Maguchu (Legal Practitioner)

For Respondent		Mr. E. Ndhlovu (Legal Practitioner)

MAKAMURE, J:

Respondent was employed by the appellant bank as a bank teller. She was charged for failure to comply with standing instructions or follow established procedures resulting in a substantial loss to the Bank.  This was a violation of Category D (17) of the applicable Code. Disciplinary proceedings were conducted against her and she was dismissed. The facts of the case are that the respondent approved a transaction, and in terms of the standing instructions she referred the client to the next appropriate bank employee. Thereafter the client or the application was referred to her superiors. The superior approved a withdrawal of forty thousand United States dollars (US$40 000.00). It was upon such authority that the amount in question was withdrawn. It turned out that the withdrawal had been fraudulent and caused substantial loss to the bank in the above mentioned amount. What should be noted is that the withdrawal was not authorized by the respondent but by her superior. Had such authority not been obtained, the withdrawal would not have occurred and the appellant would not have suffered the loss in question. So what is important is not just the respondent’s degree of involvement in that transaction. The person who authorized the transaction is the one issue must be taken with. It is not disputed that the amount in question was well above the respondent’s authority, hence she did not approve it. Even if she had wanted or intended to approve it, she could not. She had no authority to do so.

Following her dismissal. She appealed in terms of the laid down procedures. Her appeal to the National Employment Council of the Banking Undertaking Appeals Board (NEC) was successful. The NEC ordered the appellant to reinstate the respondent to her job without loss of salary and benefits with effect from the date of dismissal.

The appellant was aggrieved by that decision and appeals to this Court on the following grounds:

“1.	The NEC Appeals Board erred in failing to find that the Respondent assumed the functions of a Customer Service Officer and in so doing, failed to comply with the standing instructions applicable to those functions.

The NEC Appeals Board erred in failing to find that the Respondent affirmed

the authenticity of the customer’s documents without having followed the

process for such.

The NEC Appeals Board erred in failing to hold that Respondent as with any

other Teller is obliged to apply the Know Your Customer principles before

asking his/her superior to approve a transaction.

Consequently the NEC Appeals Board erred in failing to find that the Respondent failed to apply the Know Your Customer principles.

In the circumstances set out above, the NEC Appeals Board erred in finding the Respondent not guilty and in failing to approve of Respondent’s dismissal.”

It is trite that an appellate court does not interfere with the decision of a lower tribunal unless it is shown that the earlier tribunal improperly exercised its discretion. In Barros and Anor. vs. Chimponda 1999 (1) ZLR 58 (S) the Supreme Court stated that:

“It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion…. In short this court is not imbued with the same broad discretion as was enjoyed by the trial court.”

It is also important to note that the earlier tribunal is familiar with the operations of the workplace because it forms part of the domestic remedies. This is a clear advantage which this Court does not have (Barros and Anor. v Chimponda (above)). In this case it is not disputed that the respondent facilitated the opening of a banking account.  It is also not disputed that following the opening of the account certain amounts of money were fraudulently withdrawn.  It appears not to be in dispute that the respondent did not follow the laid down procedure in the account opening process.  The respondent, a bank teller is not being faulted because that she failed in the duties of a bank teller. It is other duties which she did not perform properly. The fact that the respondent did not perform duties for which she was not specifically employed to do properly does not delete her failure in those other areas. However the substantial loss which occurred was the result of another person’s conduct and not the respondent’s authority.

The question is who authorized the withdrawal? The answer is someone else and not the respondent. In its deliberations the NEC made a finding that the amount of USD40 000.00 was withdrawn after the respondent’s superior authorized the withdrawal.  It was not the respondent who granted the authority. It was the NECs view that it was the respondent’s superior and not herself in particular who was under the circumstances responsible for the loss.

In Hama vs. National Railways of Zimbabwe 1996 (1) ZLR 664 (S) the Supreme Court stated;

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

In Bambe vs. Bambe SC 91/02 the Supreme Court stated as follows;

“Unless the decision is clearly wrong it cannot be interfered with ….. ´we are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is infact plainly wrong that an appellate body is entitled to interfere”’

I am not able to say that the finding by the NEC was so outrageous in its defiance of logic to the extent that it requires interference.

As noted earlier on the NEC forms part of the domestic remedies and it is aware of the operations of the appellant institution.  It is also conscious of the consequences of the decisions which matters it makes. It is my considered view that it exercised its discretion properly. In the result its decision should not be interfered with.

In view of the above I find that there is no merit in all the grounds of appeal.

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

Dube, Manikai & Hwacha, appellant’s legal practitioners

Mabundu Law Chambers, respondent’s legal practitioners