NMB Bank Ltd v Shepherd Goto

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/329/2016
HARARE, 1 JUNE 2015
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/329/2016

HARARE, 1 JUNE 2015			                        CASE NO. LC/H/108/13

AND 13 MAY 2016

In the matter between:-

NMB BANK LTD				Appellant

And

SHEPHERD GOTO				Respondent

Before The Honourable E. Makamure, Judge

For Appellant		Mr. S.V. Hwacha (Legal Practitioner)

For Respondent	Mr. P.G. Mutasa (Trade Unionist – with him, Miss M. Z. Sibanda Legal Officer)

MAKAMURE, J:

This is an appeal against both an arbitral award reinstating respondent to the appellant’s employ and a subsequent quantification of damages.  The respondent was employed by the appellant as a security officer.

He was charged with and dismissed for:

Any act of conduct or omission inconsistent with the fulfilment of his express or implied conditions of his terms of contract.  This is a violation of section 4 (a) the National Employment Code of Conduct, Statutory Instrument 15 of 2006 (S.I. 15/2006):

Wilful and unlawful destruction of the employer’s property.  This is a violation of section 4 (c) of S.I. 15/2006.

With respect to the first offence the facts are that while driving the respondent’s vehicle along the Harare-Mutare highway and during the course of his duties, the respondent stopped at an undesignated place to purchase vegetables from vendors.  The second offence arises from the fact that he failed to keep proper care or lookout while performing cash-in-transit (CIT) duties. The respondent was transporting appellant’s cash from one port to another.  He needed to ensure safety of the cash that was in his custody during the journey.  His failure to so take proper care resulted in the loss of USD150 000.00 and ZAR 150 000.00 belonging to the appellant.

Following his dismissal the respondent was unhappy with the decision and the matter was referred for arbitration.  The issues for arbitration were

“(i)	Whether or not the dismissal was fair; and

To determine the appropriate remedy.”

The Learned Arbitrator found that the appellant (respondent then) had failed to provide an appropriate cash in transit vehicle and was therefore partially liable for the loss that it suffered.  The arbitrator then proceeded to hold such factor, among others, as mitigatory and ordered the reinstatement of the respondent with an alternative order for damages should reinstatement not be possible.  At a later stage the arbitrator quantified the damages payable to the respondent by the appellant.  The arbitral awards aggrieved the appellant leading to the present appeal. The grounds of appeal are as follows

“1.	On the merits, the Arbitrator erred on issues of law as follows;

Having otherwise confirmed that the Respondent was guilty of the charges, the Arbitrator a quo erred and or misdirected himself on issues of law in that he did not apply the correct principles which are applicable when an external appeal hearing considers the penalty initially fixed by a disciplinary committee.

More particularly, the Arbitrator erred in deciding to reverse the penalty of dismissal by applying the wrong legal test or principle “whether the (employer) acted reasonably within the confines of the law by imposing the penalty of dismissal”.

The correct test is that a disciplinary penalty is in the discretion of the employer and that it “remains part of our law that disciplinary penalties lie in the first place within the province of the employer to set the standard of conduct to be observed by its employees and to determine the sanction with which non compliance will be visited.  Interference herewith is only justified in the case of unreasonableness’s and unfairness.”

See Country Fair Foods (Pty) vs CCMA and Others (1999) 201LJ IT01 (LAC)

iii) 	The Arbitrator a quo erred at law in overlooking and not applying the principle applicable on appeal that;

“if (on appeal) you look at the sentence and you say to yourself this sentence is so excessive that I cannot allow it to stand.  It is open to interference (But) if you would not have imposed the same sentence it is not.  Unless the sentence makes you whistle it must stand”.  See Country Fair Foods case supra.

iv) 	The Arbitrator erred at law in failing to apply the principle of law that ……..

“It should be emphasized that a Court of law will not interfere with the exercise of its discretion by a quasi-judicial body merely on grounds that it was unreasonable.  To warrant interference on grounds of unreasonableness, the unreasonableness must be so gross that something else can be interfered from it. (sic)

In reviewing the proceedings of a statutory or other body lawfully vested with a discretion, the jurisdiction of a Court of Law is limited to the question whether that body in fact excised its discretion. (sic)

It has no jurisdiction to enquire into the correctness of the conclusion arrived by it on the evidence before it”.

See Geza vs ZFC 1998 (1) ZLR 137, Coh Coh Enterprises vs Mativenga SC 30/01 Teresi vs Public Service Commission 1996 (1) ZLR 196 and Oskill Properties vs Chairman Rent Control Board 1985 (2) SA 234 with above quote.

v)	The Arbitrator a quo erred further in law in not applying and in overlooking the principle that;

“Dismissal is not an expression of rage, much less is it an act of vengeance.  It is or should be a sensible operational response to risk management in the particular enterprise.  This is why shelf packers who steal small items are routinely dismissed.  It has everything to do with operational requirements of employer’s enterprise”.

See De Beers Consolidated Mines vs CCMA and others (2006) 21 ILJ 1051 (LAC) at 1058F-G.

vi)	Considering all of the above, and the fact that the Arbitrator did not reverse the verdict of guilty for violation inter alia of sensitive, core, cash in transit operations, which are central to the sensible operational requirements of the Appellant Bank, the Arbitrator’s decision to reinstate the Respondent to the same security sensitive position was so grossly unreasonable that no reasonable appeal tribunal could have arrived at such decision on the evidence and in the circumstances.

2.	With regard to the quantification of damages the Appellant appeals on the following issues of law.

i)	The Arbitrator a quo erred in awarding damages without evidence as to the reasonable time it would take Respondent to secure alternative employment.

ii) 	The hearing a quo erred in taking into account the age of the Respondent in determining damages which consideration is irrelevant.

The hearing a quo erred and or misdirected itself in taking into account vague and indeterminable factor of “economic challenges” in determining the quantum of damages, and in holding therefore that Appellant’s liability for damages is increased by economic challenges over which Appellant is neither in control nor responsible.”

The arbitrator’s awards are undated, and therefore the court is not able to assess whether the appropriate time limits were observed.  Parties however agreed that the matter proceeds on the basis that the appeal was timeously noted.

The facts are not disputed. It is clear from the findings of the Arbitrator that there was some wrong doing on the part of the respondent resulting in the loss of funds. Following disciplinary proceedings for the wrong doing, his employer decided to dismiss him.  The Arbitrator ordered the reinstatement of the respondent. The Learned Arbitrator’s reason for upsetting the dismissal penalty and ordering reinstatement was based on provisons of section 12B (4) of the Labour Act [Chapter 28:01] (The Act) and section 65 of the Constitution.

Section 12B (4) of the Act provides:

“(4)	In any proceedings before a labour officer, designated agent or 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 part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the 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.”

and

Section 65 (1) of Constitution provides that

“Every person has the right to fair and safe labour practices and standards and to be paid a fair and reasonable wage.”

In considering this matter the Learned Arbitrator stated: “the question is whether the conduct was so bad that the employer was justified in terminating the contract”.

The Act provides for an adjudicating authority to make other considerations like, among other things, mitigation before the ultimate penalty of dismissal is imposed.  This however should not be taken in isolation.  Authoritative decisions of the Supreme Court must necessarily be considered.  Those decisions are binding on all lower courts and tribunals.  Equally, the provisions of the Constitution provide for labour standards which should be adhered to at the work place.  The statutory provisions provide for enabling environment at the work place.  They protect workers but they do not support what is wrong. So while mitigation must be considered, aggravation must also be considered in order to arrive at a balanced decision. In the same vein, the fact that the Constitution provides for labour rights does not entitle an employee to disregard their duties and then seek to hide behind constitutional provisions.

It was the Learned Arbitrator’s view that the penalty of dismissal was harsh and that the employer did not consider the corrective and educational aspects before imposing the ultimate penalty of dismissal. The respondent herein supports the Arbitrator’s reasoning and is of the view that the award should stand.  On the quantification, the respondent avers that sufficient evidence was placed before the arbitrator enabling the quantification.  The appellant’s position is that the Learned Arbitrator applied the wrong principles.  Note was taken of the fact that while the Arbitrator agreed that the respondent had misconducted himself, he did not offer a substitute penalty.  He simply ordered reinstatement.  I agree that there ought to have been some substitute penalty imposed once it had been found that a misconduct was committed.

The appellant is of the view that the Learned Arbitrator used the wrong test in arriving at his decision.  In support of this, reference was made to the case of Country Fair Foods (Pty) vs CCMA and Others (1999) 201LJ IT01 (LAC) where it was stated that it “remains part of our law that disciplinary penalties lie in the first place within the province of the employer to set the standard of conduct to be observed by its employees and to determine the sanction with which non compliance will be visited.  Interference herewith is only justified in the case of (gross) unreasonableness and unfairness.”

In Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6/2012 the Supreme Court held that the employer’s decision on penalty should not be interfered with unless in the making its decision, the employer improperly applied its discretion.  (See also Circle Cement v Nyawasha SC 63/03 and Barros & Anor v Chimponda 1999 (1) ZLR 58 (S).  Arbitration proceedings are an outside appellate body.  They, like the Labour Court, should be slow to interfere with decisions made at the work place.  They should only interfere where there is impropriety on the part of the employer.  In this regard I respectfully associate myself with the authorities referred to above. What this means is that the Learned Arbitrator fell into error and used the wrong test when he considered the degree of the employee’s wrong doing vis-avis the appropriate penalty.  Once it was established that a misconduct had been committed, the employer was entitled to exercise its discretion in imposing the penalty which it considered appropriate. The degree of the employee’s fault becomes irrelevant.  This is the province of the employer.

Having stated the above, the award of the arbitrator on the merits cannot stand.  It is set aside in its entirety.  On the quantification award, it was made on the basis of evidence presented. It is trite that an award on damages is factual in nature and therefore not appealable.  See Leopard Rock Hotel Co (Pvt) Ltd v Van Beek 2000 (1) ZLR 251 (S).

In the present case however, the main award has been set aside.  The quantification  award can therefore not stand.  Accordingly the quantification award is set aside in its entirety.

In the result the appeal is granted. The dismissal of the respondent by the appellant is hereby confirmed.

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

Dube, Manikai & Hwacha, appellant’s legal practitioners