Saimon Mabugu v CBZ Bank Limited and The Appeals Officer, Paul Chimudzi N.O

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/257/25
HELD AT HARARE, 14th NOVEMBER 2024
CASE NO LC/H/101/22
AND 24th JULY 2025
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/257/25 HELD AT HARARE, 14th NOVEMBER 2024		CASE NO LC/H/101/22 AND 24th JULY 2025

IN THE MATTER BETWEEN:

SAIMON MABUGU	APPELLANT

And

CBZ BANK LIMITED	1st RESPONDENT

And

THE APPEALS OFFICER, PAUL CHIMUDZI N.O	2nd RESPONDENT

Before the Honourable Chivizhe J

For Appellant,	Mr C Macheka (Legal Practitioner) For 1st Respondent, Mr G, M Nyangwa with Mr P.C Fanti For 2nd Respondent, No appearance

CHIVIZHE, J:

The delay in hand down of this judgement is regretted. This is an appeal against the determination made by the 1st Respondent, CBZ Bank Limited wherein it issued a decision against Simon Mabugu, the appellant on the 31st of January 2020.

PROCEDURAL ISSUES

The parties had both raised points in limine. In an order issued under reference LC/H/ORD 775/2022 this court determined the points in limine. Parties having requested for reasons, a judgement was handed down .The court per Kachambwa, Senior Judge on 4 October 2024 granted an order rescinding the judgement. He directed a remittal of the matter for continuation of hearing before me.The matter was then heard on the 14 of November 2024 on the merits of the appeal.

BACKGROUND FACTS

The appellant is Saimon Mabugu, a former employee of the 1st respondent. The appellant was employed by the 1st respondent as a Branch Manager stationed in Rusape. He was charged with misconduct in terms of Statutory Instrument 15 of 2006.He faced numerous charges. The appellant was notified to attend a disciplinary hearing on 10th December 2019 which was postponed to 20 December 2019 at his request citing the unavailability of the key witness and the worker representative. The matter was finally heard before Mr G Gijima, the disciplinary authority chairman. The appellant was facing the following allegations,

Any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract in that:

The appellant accessed personal fuel under the Staff prepayment arrangement which was introduced by the bank on 16th October 2018 and he failed to debit his account to settle the fuel expenses for the fuel which he had used.

That the appellant exceeded his allocation of 80litres per month for his job grade without any authority for the months of November and December 2018and he drew 108b and 105litres of fuel respectively.

That the appellant did not put controls in place and as a result the Operation Manager accessed fuel which he did not pay for until 28th August 2019, when the bank had commenced investigations into the alleged misconduct.

That the appellant omitted, from the very onset, to send the required control returns to group logistics department, which returns were going to assist the group logistics department in ensuring that staff pay for fuel already used before accessing the next allocation

That the appellant and Branch Operations Manager were drawing fuel from the branch generator container for personal use without the knowledge and approval of top management

That the appellant allegedly forged or caused forgery of the branch vehicle log book covering the period 3 September 2018 to 9 October 2019.

Theft or Fraud in that:

On the 27th of July 2019, the appellant took 40 litres of fuel from the branch generator fuel container with the assistance of a cleaner and a security guard on duty and fuelled his personal car, this was captured on CCTV

After the disciplinary hearing, the appellant was found guilty and was subsequently dismissed from employment. The appellant appealed the verdict of guilty and the penalty of dismissal. The appeal was heard by the 2nd respondent, as the Appeals Officer on 29th January 2020.

The Appeals Officer upheld the decision of the Disciplinary Authority. It is the decision of the appeals officer that the appellant is challenging before this court.

GROUNDS OF APPEAL AND RELIEF SOUGHT

The appellant raised the following grounds of appeal,

The Appeals Officer grossly erred and misdirected himself in failing to address specific grounds of appeal raised by the Appellant and went on to dismiss the entire appeal without making a determination on each individual ground of appeal

The Appeals Officer grossly erred and misdirected himself in making a finding that the Appellant did not challenge the alleged acts of misconduct when in actual fact the grounds of appeal raised by the appellant challenged all the alleged acts of misconduct and attendant charges.

The Appeals Officer grossly erred and misdirected himself in fact in law in upholding the decision of the Hearing Officer even after making a finding that the Hearing officer had erred in concluding that the Appellant had exceeded his monthly allocation of 80 litres of fuel.

The Appeals Officer grossly erred and misdirected himself in confirming the Hearing Officer’s finding that the Appellant was guilty of any act of conduct or omission inconsistent with fulfilment of express or implied conditions of contract where he ought not to have done.

The Appeals Officer grossly erred and misdirected himself in confirming that the Appellant was guilty of theft, without providing the reasons for such a finding and where there was no evidence to support such a finding.

Further and consequently, the Appeals Officer erred and misdirected himself in upholding a penalty of dismissal without providing reasons for doing so.

The appellant is therefore seeking the following relief, that:

That the appeal succeeds

That the decision of the Appeals Officer dated 31 January 2020 be and is hereby set aside and substituted with the following:

“The Appellant is found not guilty of all the offences charged”

The penalty of dismissal from employment be and is hereby set aside.

The 2nd Respondent shall reinstate the Appellant to his employment without loss of salary and benefits. If reinstatement is no longer tenable parties shall negotiate damages in lieu of reinstatement failure of which parties shall approach this court for quantification.

The Respondents shall pay cost of suit.

ISSUES FOR DETERMINATION

The grounds of appeal raised by the appellant raise the following issues for determination:

Whether or not the Appeals Officer erred by failing to properly consider and determine the specific grounds of appeal raised by the appellant.

Whether or not the Appeals Officer erred in fact or in law in upholding the findings of misconduct against the appellant, including the allegations of exceeding fuel allocation.

Whether or not the Appeals Officer erred in upholding the penalty of dismissal without providing adequate reasons.

WHETHER OR NOT THE APPEALS OFFICER ERRED BY FAILING TO PROPERLY CONSIDER AND DETERMINE THE SPECIFIC GROUNDS OF APPEAL RAISED BY THE APPELLANT.

It is the appellant’s submission that the Appeals Officer erred and misdirected himself by failing to properly consider and determine the specific grounds of appeal that were placed before him. The appellant argues that instead of addressing each ground individually, the Appeals Officer dismissed the appeal in its entirety without sufficient examination. The appellant further contends that the Appeals Officer incorrectly found that the alleged acts of misconduct had not been challenged, despite the fact that the grounds of appeal clearly disputed all the alleged acts of misconduct and related charges.

In response, the 1st respondent argues that both the opening paragraph of the appeal minutes and the appeal determination show that the Appeals Officer confined himself to the grounds actually raised, without embarking on a rehearing of the matter. Furthermore, the 1st respondent submits that the Appeals Officer was not empowered to make new findings of fact, nor was it appropriate for him to readily interfere with the Disciplinary Authority’s factual determinations in the manner suggested by the appellant.

A careful reading of the Appeals Officer’s decision reveals, from the very first paragraph, that he expressly stated he had considered all the issues raised as grounds of appeal. He further indicated that, after applying his mind to the matter and analysing the charges brought against the appellant, he found no merit in the arguments advanced to suggest that the appeals officer had misdirected himself. The Appels Officer stated as follows,

“After listening to all the issues as grounds of appeal and after having applied my mind and analysed charges against you as the appellant ,I did not find any merit in the arguments being proffered that the Hearing Officer misdirected himself”

This clearly demonstrates that the Appeals Officer undertook a substantive review of the appeal and gave due consideration to the appellant’s grounds in arriving at his decision. In addition, the minutes of the proceedings further confirm that the Appeals Officer carefully examined the grounds of appeal before reaching his determination. As such, the appellant’s assertion that the Appeals Officer failed to consider specific grounds of appeal is not supported by the record and appears to be without basis. The decision and accompanying minutes reflect a deliberate and thorough engagement with the grounds presented, even if the Appeals Officer ultimately found them unpersuasive.

WHETHER OR NOT THE APPEALS OFFICER ERRED IN FACT OR IN LAW IN UPHOLDING THE FINDINGS OF MISCONDUCT AGAINST THE APPELLANT, INCLUDING THE ALLEGATIONS OF EXCEEDING FUEL ALLOCATION.

The appellant submits that the Appeals Officer erred and misdirected himself both in fact and in law by upholding the Hearing Officer’s decision, despite having found that the Hearing Officer had been mistaken in concluding that the appellant exceeded his monthly allocation of 80 litres of fuel. The appellant argues that the Appeals Officer wrongly treated this erroneous finding as inconsequential or immaterial to the outcome of the case. Furthermore, the appellant contends that the Appeals Officer erred and misdirected himself by confirming the Hearing Officer’s finding that the appellant was guilty of conduct or omissions inconsistent with the fulfilment of express or implied conditions of the employment contract, when he ought not to have done so.

Per contra, the 1st respondent contends that the Appeals Officer cannot be criticised for choosing not to interfere with the factual findings of the Disciplinary Authority, as it is well established that an appeal body should be slow to disturb such findings in the absence of clear error or misdirection. The 1st respondent maintains that the Disciplinary Authority was in the best position to assess the evidence and credibility of witnesses. Moreover, the 1st respondent argues that it is beyond dispute that the appellant was caught on camera stealing fuel from a generator a serious act of misconduct. This evidence, the respondent submits, was clear and compelling, and the misconduct was proven on a balance of probabilities. Accordingly, the Appeals Officer was justified in upholding the finding of guilt and the disciplinary sanction imposed.

Although the Appeals Officer found the appellant not guilty of exceeding the monthly fuel allocation of 80 litres for December 2018, accepting that an authorising email for the additional fuel had been produced and agreed to, this did not dispose of the disciplinary case in its entirety. The other charges of misconduct remained standing, most notably the allegation of theft, which was supported by clear and compelling evidence including video footage. Such misconduct, even if considered alone, strikes at the heart of the employment relationship by destroying the essential bond of trust and confidence between employer and employee. This further supports the approach articulated in Standard Chartered supra where the Court held that there is no rigid rule defining the degree of misconduct justifying dismissal, and that each case turns on whether the proven conduct is incompatible with the fulfilment of the contract of employment. Even where some charges fall away, remaining acts of serious misconduct can justify dismissal if they are fundamentally inconsistent with continued employment.

Accordingly, the Appeals Officer cannot be said to have erred in upholding the overall finding of misconduct and the penalty of dismissal. His decision demonstrates a proper evaluation of the charges that remained substantiated on the evidence.

WHETHER OR NOT THE APPEALS OFFICER ERRED IN UPHOLDING THE PENALTY WITHOUT PROVIDING ADEQUATE REASONS.

The appellant contends that the Appeals Officer erred and misdirected himself by upholding the penalty of dismissal without offering sufficient reasons to justify that outcome. It is argued that the Appeals Officer was under an obligation to explain the basis upon which he concluded that dismissal remained the appropriate sanction, particularly given the seriousness of its consequences for the appellant’s employment and livelihood. A review of the Appeals Officer’s decision reveals that he did not provide adequate or detailed reasons setting out how he assessed the relevant charges, weighed any mitigating factors, or concluded that dismissal was proportionate in the circumstances. The appellant maintains that this failure amounts to a misdirection in law, as it denies both the parties and the reviewing court a clear understanding of the reasoning behind the decision, undermining the principles of transparency and accountability that should guide disciplinary appeal processes.

Whilst it is indeed the position of the law that the judicial officer must provide adequate or sufficient reasons for a decision taken and such failure may amount to a gross irregularity which vitiates the decision. The circumstances in this case show that the appeals officer having considered the appellant’s grounds of appeal came to the conclusion that those grounds were meritless. His view was that the Hearing Officer had not misdirected himself in arriving at a conviction and the dismissal penalty. This is apparent from the following finding made.

“Save for the issue relating to the appellant haven’t exceed his monthly fuel allocation of 80litres in the month of December 2018 for which an instruction email authorising the allocation of additional fuel was produced and agreed to, I did not find that the Hearing Officer misdirected himself both procedurally and substantially”.

It is the court’s view that the Appeals Officer was correct in retaining the conviction and penalty

.It is apparent from the record that the appellant having being exonerated on one of the count under the first charge, he has not before this court challenged his conviction on the remaining five counts. It is also not in dispute that having been employed as a Branch Manager he had a duty of good faith towards his employer. There is no doubt that through his conduct trust was broken between the parties. It is also the position that at law that an act /conduct inconsistent with express/implied conditions of a contract of employment attracts a penalty of dismissal.

In the case of Standard Chartered Bank v Chapuka 2005 (1) ZLR 52 (S) at p57B-D, MALABA JA (as he then was) had this to say:

"Conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and an employee, giving the former a prima facie right to dismiss the latter. In Clouston & Co Ltd v Corry [1906] AC 122 LORD JAMES OF HEREFORD remarked by way of a dictum at p 129: "Now the sufficiency of justification depends upon the extent of misconduct. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course, there may be misconduct in a servant which will not justify the termination of the contract of service by one of the parties to it against the will of the other. On the other hand, misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal."

.

DISPOSITION

While the Appeals Officer’s reasons for upholding the penalty could have been more detailed, this procedural shortcoming does not outweigh the overwhelming evidence of serious misconduct warranting dismissal.

In the result, the appeal is dismissed.