Kingdom Bank v Raymond Mashari

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT
NO. LC/H/422/13
HELD AT HARARE ON 23 MAY & 13 SEPTEMBER 2013
CASE
JUDGMENT NO. LC/H/422/13
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IN THE LABOUR COURT OF ZIMBABWE		      JUDGEMENT NO. LC/H/422/13

HELD AT HARARE ON 23 MAY & 13 SEPTEMBER 2013      CASE NO.LC/H/170/10

In the matter between

KINGDOM BANK			-	     Appellant

And

RAYMOND MASHARI		 -              Respondent

Before the Honourable E.F Ndewere, President

For Appellant		-		Ms Nyasha Timba (Legal Practitioner)

For Respondent		-		Mr Gift Mutasa (Trade Unionist)

NDEWERE, E.F

The Respondent was employed as a personal banker by the Appellant and he was stationed in Gweru.

On 14 October, 2009, the Respondent was charged with Contravening Statutory Instrument 273 of 2000, as follows;

Category D 11(5) – Theft or fraud, in that respondent failed to declare a shortage of US$20.00 on 3 September, 2009 and a surplus of US $20.00 on 8th September, 2009 respectively. Respondent went further to call a client without notifying the supervisor and failing to produce a record on the transactions which he did with the client.

Category D 11 (11) – Gross incompetence or inefficiency in the performance of duty in that he failed to process two deposits totalling US$310.00 and a withdrawal for US$330.00.  Respondent went further to call a client of the bank to bring a top up to his deposit without notifying his supervisor to cover up for a possible shortage which Respondent was supposed to declare.  The top up later appeared to be a surplus and the Respondent called the Bank’s client to collect the surplus money without following proper procedures.  Respondent also failed to follow Section 3.20 of the procedure manual which states that a difference, whether shortage or surplus should be declared and if a till has a shortage or a surplus one should never make a payment or deduction to cover up the difference.

Category D 11 (5) – Theft or fraud in that Respondent failed to declare a surplus of $15.00 on 11 September, 2009, after underpaying a client.

The facts of the matter as narrated in the charges were common cause.  At the end of the hearing, the Respondent was found guilty.  On the penalty the Hearing Officer gave the following penalties.

Final written warning with a life/span of 12 (twelve) months to expire on 13 October, 2010.

Raymond Mashari to pay the US$15 (fifteen dollars) claimed by client.

The hearing officer also advised that if either the Defendant or the Complainant was unhappy with the outcome of the case, they have a right to appeal to the Grievance and Disciplinary Committee in the prescribed manner.  The minutes of the hearing are part of the record.

On 16 October 2009 Appellant’s Gweru branch appealed to the Grievance and Disciplinary Committee restating the undisputed facts above.

On 27 October, 2009, the Grievance and Disciplinary Committee conducted an appeal hearing into the above case. At the end of the hearing, the Grievance and Disciplinary Committee altered the Respondent’s penalty from a final warning to dismissal.  The minutes of the appeal hearing are part of the record.

On 29 October, 2009, the Managing Director of the Appellant wrote to the Respondent, advising him that the “Grievance and Disciplinary Committee had unanimously agreed that the hearing officer was right in finding you guilty of the offence, but erred in serving you with a final written warning instead of the applicable Dismissal penalty”.

The Respondent appealed to the National Employment Council for the Banking Undertaking.  There is a photocopy of a letter signed by E. Marunda, the Chairperson for the Employment Council for the Banking Undertaking, dated 19 February 2010 reinstating the Respondent with benefits from the date of dismissal.  There are no minutes of any appeal hearing by the National Employment Council.

The Appellant appealed to the Labour Court.  Its grounds of appeal were as follows:

While accepting that the Respondent committed the offences he was charged with, the National Employment Council for the Banking Undertaking erred in prescribing a lesser penalty than the one of dismissal provided in the Code of Conduct and which had been imposed by the Appellant’s Disciplinary and Grievance Committee.

Had the court aquo applied its mind to the circumstances of the matter relating to commission of the offence, the court aquo should have appreciated that the appropriate penalty for a breach of the code in the brazen manner in which Respondent committed the offences was dismissal.

The court aquo misdirected itself in failing to appreciate that the manner in which the Respondent committed the offences was punctuated by gross dishonesty which clearly rendered Respondent unfit for the job he was employed to do.

The court aquo erred in holding that dismissal was not the correct penalty.

The court aquo did not give due cogence to the findings of the Grievance & Disciplinary Committee regarding the CCTV Video clip evidence which was presented during the disciplinary hearing.

After hearing Counsel for the Appellant and the Respondent’s representative, this Court is of the view that the appeal must succeed for the following reasons:

The facts of the matter are admitted thus the Respondent’s guilt is confirmed by his own admission.     On the penalty, Statutory Instrument 273 of 2000, in its Annexure III, provides a guide to penalties. That annexure has only one penalty for Category D offences and that penalty is dismissal.  The initial hearing officer therefore had no reason to deviate from that prescribed penalty.  Indeed, in his judgment, the Hearing Officer did not explain why he deviated from passing the prescribed penalty of dismissal.  The Grievance and Disciplinary Committee was therefore correct when it set aside the Hearing Officer’s penalty.  A Hearing Officer cannot willy nilly deviate from penalties prescribed by a Code of Conduct.  The Code of Conduct is his bible and he should not deviate from it.

The National Employment Council for the Banking Undertaking did not provide the minutes of their hearing as part of the record.  In fact, the Court asked both parties to search for the minutes and avail them to the Court and both parties said they could not find them.  So as matters stand, the Court does not even know if the Council actually sat and considered any appeal.  To make matters worse, even the “determination” provided to the Court is a photocopy and not the original; thus raising doubt on the authenticity of the National Council hearing and decision.  Even the so called “determination” does not read like a serious document from a Council operating in the financially sensitive industry of banking.  It sounds like a document written by just one person who did not appreciate the sensitive nature of banking transactions.  The second paragraph of the letter even seems to be disputing incompetence on the part of the respondent yet incompetence was clearly proved by the evidence during the hearing.  This court therefore dismisses the purported hearing by the Council, if it was held, as a casual approach to disciplinary issues.  Section 6 (8) of Statutory Instrument 273 of 2000 requires the Chairman of the Council to convene a meeting within 10 working days of receipt of all relevant documentation in the office of the Council.  In the absence of minutes, there is no proof that a meeting was convened.  Section 6 (9) of the same Instrument requires the Secretary of the Council to attend all meetings for the purpose of recording the proceedings.  Again, there is no evidence of any record of the hearing.

The Respondent tried to argue that the employer had no right to appeal to the Grievance and Disciplinary Committee; only the employee could do so.  The Court rejected this argument as being contrary to the principles of natural justice in that one party to the disciplinary proceedings cannot have a right which the other party is denied.

The respondent also tried to argue that the respondent was not advised of the appeal hearing to the Grievance and Disciplinary Committee.  The Court also rejected this argument in view of the fact that the Code did not require service of documents on the parties but on the representatives.  Since the Worker representatives on the Committee were served and appeared and ably participated in the Grievance and Disciplinary Committee appeal hearing on behalf of the Respondent, the court is satisfied that there was no prejudice to the respondent.

Consequently, all the grounds of appeal raised by Appellant have merit.  The appeal therefore succeeds and the decision of the National Employment Council reinstating the Respondent is set aside and the decision of the Grievance and Disciplinary Committee dismissing the respondent is confirmed.

Each party will pay its own costs.

Kantor & Immerman – Appellant’s Legal Practitioners

General Secretary Zibawu – Respondent’s Representatives