NMB Bank Limited v Grace Nhemachena

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/25/13
HELD AT HARARE 6TH SEPTEMBER 2012
CASE NO
JUDGMENT LC/H/25/13
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT LC/H/25/13

HELD AT HARARE 6TH SEPTEMBER 2012		CASE NO LC/H/02/11

NMB BANK LIMITED					Applicant

GRACE NHEMACHENA					Respondent

Before The Honourable G Musariri, President

For Appellant			Mr K Ncube, Attorney

For Respondent			Mr T Marimo, Unionist

MUSARIRI, G:

On 9th December 2010 the NEC Banking made a determination.  In terms thereof it upheld an earlier ruling in terms of which Appellant was ordered to reinstate Respondent’s employment.  Appellant then appealed to this Court against the NEC’s determination.

The grounds of appeal complained that,

“1.	The Appeals Board erred in failing to uphold the original dismissal of the Respondent;

2.	The Appeals Board ought to have found that the Respondent acted, at least, with gross negligence in permitting one or more

withdrawals by persons who were not account holders; and that this conduct caused the Appellant substantial loss.”

Appellant’s case was further elaborated by its attorney as follows;

“A.  Submissions In General

1.  It is respectfully submitted that the National Employment Council

Appeals Board fell into error when it failed to find that the         Respondent acted with gross negligence resulting in substantial loss to the Appellant when permitting one or more withdrawals by persons who were not account holders.  Respondent was employed by Appellant as a bank teller and permitted one or more withdrawals by persons who were not account holders to withdraw money from the bank.  Such conduct with greatest respect, is gross negligence.”

Respondent explained the incidents in a memo dated 27th May 2010 addressed to her superior.  She stated that,

“1.  On the withdrawal in question the following procedures were

followed:

-  Positive identification of customer by metal I.D. passport or driver’s       licence (whichever was produced by client)

-  On the $500 withdrawal because it was within limit was processed after    verification of signatures, positive identification and balance enquiry

On the $2000 withdrawal management’s authority was sought as the amount  was above the limit of $500. Transaction was processed after authorisation verification of signature and positive identification was done prior to transaction being processed.  Identity documents were endorsed at the back of transaction vouchers.”

On these facts, the NEC concluded that,

“It is observed that the people who were asked to investigate this matter were the very people who would authorise these transactions.  The vouchers that were used in these transaction were missing and the blame was put on the teller.  In the banking system it is clear that the responsibility of processed vouchers lies with the custodian of the vouchers.  This teller is a victim of circumstances.

This issues involves a chain of tellers.  It is difficult to substantiate charge in the absence of vouchers.  The allegation of negligence was not proven.  The bank did not do much in getting evidence from the supervisor involved.”

(The underlining for emphasis in mine.)

The charge of negligence in this case entailed failure to follow procedures.  Respondent’s memo quoted above explained the procedures which she followed.  She checked for signatures and positive identification of the payees then endorsed same on back of the withdrawal vouchers.  She sought and obtained authority in respect of the transaction above her limited authority.  These appear to be the normal procedures expected of a bank teller.  On the other hand Appellant averred that Respondent acted negligently.  Appellant’s case appears to rest solely on the basis that the payees were not the bona fide account holders.  It was encumbent upon Appellant to produce the withdrawal vouchers.  The endorsements thereon (or lack thereof) would show whether or

not Respondent followed procedures as she averred.  That mala fide payees were involved might well be the result of a fraud perpetuated upon Respondent possibly with connivance by the bank’s employees.  This was adverted to by the NEC in its determination.  These are observations by persons with expertise and experience in banking operations.  They cannot be lightly dismissed.  In these circumstances I am persuaded to agree with NEC’s finding that the charges could not be sustained in the absence of the withdrawal vouchers.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G.  MUSARIRI

PRESIDENT