First Capital Bank v Nobert Nyamhuri

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 10 JANUARY, 2023 AND 31 MARCH, 2023
JUDGMENT NO. LC/H/97/23
CASE NO. LC/H/62/19
In the matter between:-
FIRST CAPITAL BANK
Appellant
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 10 JANUARY, 2023 AND 31 MARCH, 2023

Judgment No. LC/H/97/23
Case No. LC/H/62/19

In the matter between:-

FIRST CAPITAL BANK
Appellant
Versus

NOBERT NYAMHURI
Respondent

Before The Honourable L. Hove, Judge:

For Appellant : F.T. Moyo (Legal Practitioner)
For : M. Gwisai (Legal Practitioner)
Respondent

HOVE J:

Sometime in February 2022 the Supreme Court remitted to this court this matter for the court to consider in mitigation and to determine the appropriate penalty.

The facts

The employee was charged with and convicted of two counts of “any serious act; conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract in terms of the relevant code of conduct. It was specifically alleged that the employee had on two occasions encashed a total of US $2 590.00 and also facilitated encashment of US $1 000.00 by signing on the withdrawal slip without the necessary mandate to do so. The employee had been employed in the employer’s NGO branch which served employees of non-governmental organizations (NGO’s) who were the Bank’s customers. These customers earned in hard currency and had the privilege to make hard currency withdrawals which privilege was not extended by the bank to other of its customers in the other branches. It had been alleged that the employee had knowingly and improperly facilitated encashment of cash above set weekly limits of non-salary credits and on accounts of customers who were not NGO employees. The Supreme Court upheld the conviction and the court is now seized with determining the appropriate penalty.

The bank’s position

The appellant argued that under the common law the employer has the prerogative to effect dismissal where the employer considers the misconduct as one that is as serious as to go to the root of the contract of employment. It was submitted that the following cases made this position clear:

Standard Chartered Bank Zimbabwe v Chapuka SC 125|04

- Toyota Zimbabwe v Posi 2008(1) ZLR 173(5)
- ZB financial Holdings v Maureen Manyarara SC 3|12
- Circle cement (Pvt) Ltd v Nyawasha SC 60|03
- Mashonaland Turf Club v Mutangadura 2012(1) ZLR 183(5), and
- Innsor Africa (Pvt) Ltd v Chimoto SC 6|12

It was further submitted that:

The employee can only escape dismissal if he can show that “his misconduct, though technically inconsistent with the fulfilment of the conditions of his contract, was so trivial, so inadvertent, so aberrant or otherwise so excusable, that the remedy of dismissal was not warranted.” It was further argued by the appellant that the common law position remained extant strictu sensu regardless of the provisions of S.12 B (4) of the Labour Act [Chapter 28:01] (the Act). Reliance for this proposition was placed in the case of Madzinga v Marange Resources (Pvt) Ltd SC 19|12.

The Respondent’s position

It was argued on behalf of the employee that a proper consideration of the matter in casu shows that there are principles derived from: -


1) Employment codes of conduct
2) The Act, and


3) The constitution of Zimbabwe amendment (No 20) Act, 2013 (the Constitution)

Which have impacted and modified the common law prerogative of the employer to dismiss where an employee is found guilty of an act of misconduct which goes to the root of the contract of employment. The instruments, it was argued, imposed an additional requirement of “fairness” when deciding whether or not a dismissal penalty is to be effected.

It again was submitted that in the seminal constitutional court decision of *Greatermans Stores (1979) Limited t/a Thomas Meikles Stores and Anor v The Minister of Public Service, Labour and Social Welfare and Anor CCZ 2*|18 the Deputy Chief Justice (as he then was) while commenting on convention 158 had stated that it;

*“..... contains principles which have been accepted at international level on how employees whose contracts of employment have been terminated on notice at the initiative of the employers must be treated under national law...... The convention contains a touch stone against which the notion of fairness may be gauged.”*

The respondent’s representative proceeded to cite the provisions of articles 7 and 8 of Recommendation 166 which provide that generally, mitigation factors must be taken into account and workers should be given a second chance and or room to improve on performance unless there are compelling reasons otherwise.

The two articles provide as follows;

7) The employment of a worker should not be terminated for misconduct of a kind that under national law or practice would justify termination only if repeated on one or more occasions, unless the employer has given the worker appropriate written warning.


8) The employment of a worker should not be terminated for unsatisfactory performance, unless the employer has given the worker appropriate instructions and written warning and the worker continues to perform his duties unsatisfactorily after a reasonable period of time for improvement has elapsed.


It was argued that the employer’s unfettered common law discretion on an employee guilty of conduct that goes to the root of the contract of employment was modified.

It was argued further that the international law principles were incorporated both in general Zimbabwean municipal law and directly in the employment code of conduct applicable in the instant case.

The Act provided in section 12B (4) that;

“(4) In any proceedings before a Labour officer designated agent or the Labour Court where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall in addition to considering the nature or gravity of any misconduct on the rights of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal including length of the employee’s service, the employee’s previous disciplinary record, the nature of the employment and any special personal circumstances of the employee.”

The relevant code provides in its section 3(1) as follows;

“1. It is the responsibility of all persons involved to ensure that required standards of discipline are maintained within the enterprise and that the administration of discipline is conducted in a fair and suitable manner. It is the intention of this code that where ever possible disciplinary action should be corrective rather than punitive.”

Under Penalties section 7, it is provided as follows;

7. (1) .................

(2) Penalties may include warning, demotion, suspension without pay, fines or dismissal having regard to the category of offence as set out in appendix 1.

(3) Before a decision is made on the disciplinary action to be taken, all relevant circumstances in each individual’s case must be taken into account.


The court was urged to take into account the principles enunciated in these international principles incorporated into our domestic laws through codes of conduct.


The court was urged to discard ghosts of the past which stand in the path of justice clanking their medieval chains. The proper course is for the judge to pass them undeterred. The court should avoid the dangers of using outdated common law principles The Supreme Court has had occasion to comment on the Provisions of section 12B (4) of the Act and the codes of conduct.

In the case of *Madzima v Marange Resources (Pvt) Ltd* SC 19|12 the apex court held that mitigating factors as provided for under S 12B (4) on the Act do not have the effect of altering the common law position that allows an employer who views an employee’s misconduct as one going to the root of their employment agreement, to exercise its discretion and terminate the relationship.

No useful purpose can thus be gained by this court, which is bound by the decisions of the apex court to seek to give a different effect to section 12B (4) of the Act on the common law position. The Supreme Court clearly stated that mitigatory factors as provided in S.12B (4) of the Act do not affect the common law and the employer’s prerogative to effect the punishment of dismissal for acts of misconduct which go to the root of the employment contract.

As regards the argument that codes of conduct altered the common law position, the apex court has expressed itself on the matter and held in several cases that codes of conduct do not alter the common law position.

See in this regard the cases of;

1) *Toyota Zimbabwe v Posi* 2008 (1) ZLR 173 (5) where the court reaffirmed the common law position that the employer is entitled to dismiss for conduct that goes to the root of the contract of employment. See also *ZB Financial Holdings v Maureen Manyarara* SC 12|02.

“Articles 7 and 8”

The earlier cited article 7 provides that an employee’s contract should not be terminated for misconduct of a kind that under national law or practice would justify termination only if repeated. This does not outlaw dismissal in circumstances such as the present one where national law as encoded in the code of conduct allows that for some serious offences, the employer may dismiss on the first commission of the act of misconduct.

Under the Banking Industry Code, a first offender can be dismissed for category D offence that is, serious offences that go to the root of the contract.

This having been said, it remains for this court to consider what penalty can be appropriate in this case.

The Respondent is a first offender who has been employed from the year 2001. He is a family man with responsibilities and has school fees to pay for members of his family who still attend school. The Supreme Court has ruled that mitigation factors as provided for in S 12B (4) of the Act do not have the effect of altering the common law position.

The common law position is that for serious acts of misconduct, ones that go to the root of the employment contract of employment. The employee may be dismissed. This court is not sitting as an employer but it must decide the matter in a manner that accords with the law on the subject. The fact that the employee who was employed as a cashier in a bank signed and forged customer’s signatures and withdrew money is too serious an offence which goes to the very root of the contract of employment. The circumstances of this offence warrant the penalty of dismissal.

It is therefore ordered as follows;

Order;

1. The Respondent is accordingly dismissed from employment.

2. Each party will bear its own costs.


Scanlen & Holderness, appellant’s legal practitioners
Matika, Gwisai & Partners, respondent’s legal practitioners
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