NMB Bank Limited v Phillis Masanga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/181/2016
HARARE, 26 JANUARY 2016 &
18 MARCH 2016
CASE NO LC/H/64/2011
---------


IN THE LABOUR COURT OF ZIMBABWE	JUDGEMENT NO LC/H/181/2016

HARARE, 26 JANUARY 2016 &			                 CASE NO LC/H/64/2011

18 MARCH 2016

In the matter between

NMB BANK LIMITED						    APPELLANT

Versus

PHILLIS MASANGA						   RESPONDENT

Before the Honourable E T Muchawa J

For the Appellant      Mr S Sadomba (Legal Practitioner)

For the Respondent   Mr T Marimo (Trade Unionist)

MUCHAWA J:

This is an appeal against a determination of the National Employment Council (“NEC”) Appeals Board for the Banking Undertaking.

The respondent is a former employee of the appellant. She was employed as a bank teller, when, on 26 March 2010, she declared a shortfall in the amount of US$1 160-00. She was charged of “gross negligence causing serious loss to the bank” which is a Category D offence, section 11 (15) of the Code of Conduct for the Banking Undertaking, SI 273 of 2000. Following a disciplinary hearing, she was found guilty and dismissed from employment.

Upon appeal to the Grievance and Disciplinary Committee (“the G and DC), two hearings were held, which both resulted in a deadlock leading to the referral of the matter to the NEC Appeals Board.

In the decision appealed against, the NEC Appeals Board ordered the reinstatement of the respondent without loss of salary and benefits from the date of wrongful dismissal.

The grounds of appeal before me are as follows:

The Appeals Board of the National Employment Council erred in:

Failing to appreciate that the respondent had been charged with, and found guilty of, a category D offence warranting dismissal for a first offence;

In ordering the reinstatement of the respondent, notwithstanding that it did not overturn the finding of guilty of a Category D offence, but merely commented that “the penalty awarded …. was too harsh”;

In failing to find, as it ought to have, that the penalty of dismissal was appropriate in the circumstances; and

In the alternative, and in any event, in requiring that the respondent be reinstated, without affording the appellant the alternative of declining to reinstate the respondent.

The appeal is opposed.

The issues emerging from grounds of appeal 1, 2 and 3 relate to the propriety of the interference with the penalty of dismissal by the NEC Appeals Board.

Ground 4 of appeal alleges, in the alternative, that the NEC Appeals Board’s order of reinstatement without the alternative of damages, is incomplete and incompetent.

I will proceed to deal with these issues in turn below.

Propriety of altering the dismissal penalty by the NEC Appeals Board

Whether the finding of guilty was overturned

In ground 2 of appeal, the appellant alleges that the NEC Appeals Board did not overturn the finding of guilty of a Category D offence, but merely commented that the penalty awarded was too harsh.

The determination of the NEC Appeals Board however does not reflect this. As stated by the respondent’s Mr Marimo, the Appeals Board found that the charge of gross negligence was not substantiated as it was not particularized.

It was argued by Mr Marimo that the charge should have emanated from the manner in which the misconduct was allegedly committed not prior disciplinary matters. In this regard the NEC Appeals Board found that the hearing officer referred to prior failures to balance transactions on two counts and a standing written warning and observes that, these factors do not substantiate the current charge.

Over and above finding that the penalty was too harsh, the NEC Appeals Board makes the following further observations:

“The likelihood of shortages and surpluses in the banking industry is not unusual. There was no evidence of malice on the part of the employee. During investigation, the bank went through investigation; the bank went through vouchers and CCTV but failed to show where exactly the money went missing. At the agency she would use spread sheets which had no provision of noting breakdowns. The bank needs to put in place better controls, an issue noted during the G and DC Hearing.”

They conclude:

“In the circumstances, the NEC Appeals Board ordered the reinstatement of the employee without loss of salary and benefits from date of wrongful dismissal.”

In the circumstances, it is incorrect for the appellant to allege that the finding of guilty of a Category D offence was not overturned and there was a mere comment on the harshness of the penalty imposed.

To expect the quasi-judicial appeals board to write its determination as clearly and in a particular form, as would a proper court of law where a legally trained person adjudicates, would be expecting too much. The substance of the determination clearly sets aside the guilty verdict.

Propriety of guilty verdict

Ground of appeal 1 alleges that since the respondent had been found guilty of a Category D offence, dismissal was the appropriate penalty.

It is the appellant’s case that the respondent having admitted to the shortfall in her own statement, and failing to explain how it came about, was sufficient to prove gross negligence. The following findings of the disciplinary committee were relied on:

That she did not follow procedure in terms of balancing before leaving CCD and when she came back from CCD.

That she had the privilege of CCTV yet she failed to pin point where the money was.

In the light of the above findings of fact, it was argued that the appellate court should not have lightly interfered with the findings of fact. Barros & Anor v Chimpondah 1999 (1) ZLR 58 (S) and Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

On the contrary, the respondent referred me to page 20 of the record, being the disciplinary hearing minutes. There is confirmation that all the vouchers were examined and none had a break down that was not adding up. It is actually stated that “all was in order”.

The only problem is said to have related to the schedules used with the farmers at the agency which had no room to confirm the breakdown of denominations (page 18 and 19 of record). Mr Marimo pointed to the flaw in this procedure and how it was then improved and changed after the incident involving the respondent.

The respondent referred me to the case of Standard Chartered Bank Zimbabwe Ltd v Chipiningu SC 104-02 to argue that the appellant did not substantiate the charge of gross negligence as defined therein.

The case quotes with approval from Bickle v Minister of Law & Order 1980 ZLR 36 at 41 A:

“It has been described as ‘ordinary negligence of an aggravated form which falls short of wilfulness’”.

From Prosser, Law of Torts, 4th ed  at 183 it quotes:

“Very great negligence or want of even scant care or a failure to exercise even that care which a careless person would use.”

Further, the following is also a further explanation given:

“Gross negligence connotes recklessness, an entire failure to give consideration to the consequences of his actions, a total disregard of duty.”

Gross negligence has therefore been accepted to signify more than ordinary inadvertence or inattention, but less than conscious indifference to consequences, and that it is, in other words, merely an extreme departure from the ordinary standard of care.

It is contended that the respondent’s conduct did not fall into the category of the definitions above and is not an extreme departure from the ordinary standard of care.

I wish to be guided in my approach in this matter by SANDURA JA’s approach in the case of Tichawana Nyahuma v Barclays Bank (Pvt) Ltd SC 67/05. Therein the appellant, a bank teller had also admitted to a shortfall whose amount was $150 207-00 as a result of negligence. The court had to determine whether or not from the facts and explanation given, there was gross negligence or ordinary negligence. It was held that the decision as to whether the negligence was gross or ordinary must be a value judgment based on an assessment of the facts of each case.

In casu the respondent is unclear as to whether the shortfall was as a result of overpayment or an underpayment of a deposit. One has to look at the amount of $1 160-00 and look at the number of notes which could have been handed over or not received in whatever denomination. In the highest denominations these would have been thirteen.

In Tichawana Nyahuma supra the court considered the eight years’ experience of the appellant and observed that he should have exercised great care in counting money. It is observed further:

“A teller is required to do that at all times, especially when handling very large amounts of money.”

Further, a teller must concentrate on what he or she is doing and be attentive to the matter at hand.

In casu the respondent failed to exercise great care in counting money. That, in my opinion is the basis of the gross negligence. The fact of the lack of a facility on which to record a breakdown is only ancillary and would have assisted in tracing where the shortfall could have occurred. The failure to pin point where and how the shortfall could have occurred given the volume of work points to inattentiveness.

Accordingly I find that the respondent was properly found guilty of gross negligence.

Altering of the dismissal penalty

I now turn to the last issue arising from ground of appeal 3. This is about the propriety of the dismissal penalty.

I find favour with the appellant’s reference to the case of Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6-2012 wherein it was stated:

“A principle has now been firmly established to the effect that as the appellate court should not interfere with an exercise of discretion by the lower court or tribunal unless there has been a clear misdirection on the part of the lower court.”

Gross negligence in the relevant Code of Conduct is a category D offence which warrants dismissal for a first offence.

I find therefore that the Appeals Committee erred in altering the dismissal penalty.

Ground of Appeal 4

This ground was stated in the alternative. Having found for the appellant in grounds 1 and 3, there is no reason to proceed to detain myself on this ground.

Consequently, the appeal succeeds and I order as follows:

The determination of the National Employment Council Appeals Board for the Banking Undertaking of 18 January 2011 be and is hereby set aside.

The respondent stands dismissed as per the hearing officer’s determination of 13 April 2010.

Gill, Godlonton & Gerrans appellant’s legal practitioners