Stanbic Bank Zimbabwe v Verity Mutsamwira

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/770/2014
HARARE, 30 SEPTEMBER 2014
CASE
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/770/2014

HARARE, 30 SEPTEMBER 2014			        CASE LC/H/574/2013

& 21ST NOVEMBER 2014

In the matter between

STANBIC BANK ZIMBABWE					APPELLANT

Versus

VERITY MUTSAMWIRA						RESPONDENT

Before The Honourable E Muchawa  :  Judge

For the Appellant		I Chagonda  (Legal Practitioners)

For the Respondent	P G Mutasa  (Trade Unionist)

MUCHAWA J:

This is an appeal against the decision of the NEC Appeals Board of the Banking Undertaking.

The respondent is the appellant’s employee who at the material time was employed as a teller at the appellant’s Chitungwiza branch. She is also the Workers Committee Chairperson and also Vice President of the Zimbabwe Banks and Allied Workers Union (ZIBAWU).

A letter dated 2 October 2012 was delivered to the respondent on 7 December 2012 instructing her to transfer to the appellant’s Ngezi branch with effect from 1 January 2013.

It is common cause that in April 2011, the appellant had written to the respondent instructing her of a similar lateral transfer to the Ngezi branch. Then, the respondent successfully lodged a grievance with the Grievance and Disciplinary Committee and they ruled on compassionate grounds that she be transferred to any branch within the Harare-Chitungwiza region. The appellant however reserved the right to transfer the respondent at any time in line with its policy.

In response to the 2012 letter of transfer, the respondent filed a fresh grievance which was received on 29 December 2012 but no full hearing was done. A purported grievance hearing convened on 15 January 2013 did not consider the merits of the grievance as the chairperson noted that she was an inappropriate hearing officer as the transfer had been authorized at a level higher than her. The matter was adjourned and never reset down for a hearing before an appropriate authority.

In the meantime the appellant processed a relocation allowance into the respondent’s account on 29 January 2013. The appellant’s view was that the respondent’s refusal to comply with the transfer request was a refusal to obey a lawful order. She was charged of contravening category D 11 (3) of the Code of Conduct for the Banking Undertaking, S I 273/200. It particularly reads as follows:

“wilful disobedience to a lawful order given by the employer.”

The respondent was found guilty and dismissed.

The NEC Appeals Board determination found that the respondent had a legitimate expectation to be heard before the transfer could be carried out. A direct link was found to exist between the former and latter grievances. The respondent was found to have been unfairly dismissed. Reinstatement was ordered. To date the respondent has been reinstated.

The appeal grounds are as follows:

The Appeals Board of the National Employment Council (NEC) erred in failing to realize and appreciate that the respondent was obliged at law to abide by the directive to transfer her to Ngezi branch irrespective of the respondent’s grievance.

The Appeals Board of the NEC failed to appreciate that the respondent is obliged by law to comply with the directive before raising a grievance and that the raising of a grievance without complying with the directive would amount to approach (sic) the court with dirty hands.

The Appeals board of the NEC failed to appreciate that the respondent’s wilful disobedience to a lawful order given by the employer was so gross in its defiance of authority that went to the root of the contract. (sic)

The Appeals board failed to appreciate that overally, there were very clear grounds for the dismissal and that there was absolutely no defence that could be legally availed to the respondent.

The Appeals board failed to appreciate that reinstatement without an alternative order as to damages was an incompetent order and that even if dismissal was improper, the appeals board should have given the employer an opportunity to pay damages in lieu of reinstatement.

The appeal is opposed. The respondent is raising the defence that the order to transfer was unlawful as it disregarded the grievance raised and its relationship to the 2011 grievance. She claims that she had a right to be heard before being transferred.

In my opinion the key questions for determination arising from the six grounds of appeal are:

Whether the order to transfer was lawful; and

Whether the order of reinstatement without an alternative order as to damages was a competent order.

I deal with each of these issues below.

Was the order to transfer the respondent lawful?

The appellant prefaces its submissions by making reference to a Reserve Bank Circular of 25 November 2008 titled “Overhaul of Risk Management and Internal Control Systems” which provided in paragraph 6 as follows:

“In order to curtail abuse of office by bank employees, all banks are required to submit schedules of staff rotation, especially for tellers, custodians and branch managers, indicating where from and whereto they are being transferred.”

The staff rotations were meant to deal with some bank employees who had become too comfortable in their zones that they had created own empires and regarded themselves as sacred cows.

The above circular coupled with the Staff Promotion and Transfer Policy and Procedure which states:

“It is a condition of service that an employee can be transferred to anywhere where the bank has business operations”

is said to be the legal basis for the order of transfer. Reference is futher made to the CBA SI 273 of 2000 in section 27 (4) which deals with accommodation upon transfer.

The respondent made reference to the case of Standard Chartered Bank v China Shougang SC-49-13. The court therein held that the bank was liable to repay the money deposited by the respondent which had been forwarded to the Reserve Bank of Zimbabwe in terms of a 2007 directive. The directive was held to be unlawful and the bank was not bound to comply without properly investigating the lawfulness thereof.

In casu the respondent is said to have been at the Chitungwiza branch for about a year and could not therefore fit into the description of those who had become too comfortable. Further the respondent who was employed as an account analyst at Chitungwiza is not mentioned in the categories of the “risky” groups.

I find therefore that the mere reliance on the RBZ directive is not sufficient to found a lawful order.

I note however that the conditions of employment reserved the right to transfer on the appellant. On that basis and in the circumstances, was the order to transfer lawful?

The appellant cited the case of ZCTU v Makonese SC-141-04 where a lawful order is defined as one given by the employer, which is capable of being carried out by the worker and is for the advancement of the employer’s business whilst closely related to the duties of the employee.

The respondent referred me to Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S) for a definition of lawful as what is in conformity with (or frequently not opposed to) the principles and spirit of the law whether moral or judicial.

This therefore takes me to available precedents on transfers.

The respondent relies on the case of Kanonhuwa v Cotton Company of Zimbabwe 1998 (1) ZLR 68 (H). It that case the employee requested a transfer based on her personal circumstances from Sanyati to Harare. This was granted but she was then ordered on short notice to transfer to another station in Gokwe. It was held that in the circumstances of this case, the applicant had a legitimate expectation to be heard. This was because the respondent had agreed to transfer her to Harare because of her personal circumstances and before transferring her elsewhere she should have been heard as her circumstances remained essentially the same. In my opinion the Kanonhuwa case is on all fours with the current case.

The respondent’s 2011 transfer had been stayed on the basis of her gender roles as a mother to minor school going children and caring for a sick husband including taking over some of the roles the husband used to perform. In my opinion the respondent had a legitimate expectation of being heard before the decision to transfer her was made. My position is buttressed by the matter of Director of Works & Anor v Nyasulu & Ors SC-213-2001. It cites with approval Administrator, Transvaal & Ors v Traub & Ors 1989 (4) SA 731 A. The legitimate expectation doctrine is said to include being accorded a hearing before some decision adverse to the interests of the person concerned is taken.

The next level inquiry is to therefore establish whether the right to be heard was extended to the respondent.

The appellant relies on the Kanonhuwa case supra and the Danai Guruva v Traffic Safety Council of Zimbabwe case SC-30-08 for the assertion that the right to be heard does not translate to a full hearing but can be through written submissions. Reliance is also placed on the case of Taylor v Minister of Higher Education & Anor 1996 (2) ZLR.

The respondent accepts this statement of the law but counters this by stating that even though the respondent lodged a grievance, it was not considered on the merits and so she was not heard before being ordered to transfer.

Indeed the record shows that at the purported hearing of 15 January 2013 the grievance was not considered on the merits as a Ruth Kanyenze who was chairing recused herself and adjourned the matter on the basis that as the transfer had been authorized at a higher level, she was an inappropriate hearing authority. My conclusion is that the respondent was not heard prior to the decision to transfer her nor was she heard after filing her grievance. The record has no further evidence to show that the procedure laid out in SI 273 of 2000 was followed in processing the grievance. The decision on the grievance should have been communicated within three working days of the completion of the investigation.

The appellant’s further argument is that the respondent should have complied with the administrative order pending the hearing of the grievance.

The respondent relies on Danai Guruva case supra on how an employer can cure a failure to hear an employee before transfer. On page 7 of the cycostyled judgment it is stated:

“While the respondent may have erred in not giving the appellant a hearing in the very first place, I am satisfied that since the respondent did not compel the appellant to go on transfer before he was heard, but deliberated on the issue before re-affirming its previous decision the requirement of the audi alteram partem rule was complied with.”(my emphasis)

In casu the appellant did not seek to cure the earlier failure to hear the respondent but insisted on hearing her after the transfer.

In Director of Works & Anor v Nyasulu & Ors supra, the Supreme Court comments on the defective approach of the appellant on page 7 as follows:

“It is well established that the ability to make representations after the decision has been made rarely cures the procedural defect of a prior fair hearing:-

‘The general rule is that once a decision has been reached, in violation of natural justice, even if it has not been implemented, a subsequent hearing will be no meaningful substitute. The prejudicial decision taken will be set aside as procedurally invalid. In this way the human inclination to adhere to the decision is avoided’”. (See Taylor v Minister of Higher Education & Anor supra).

In the circumstances, the decision of the NEC Appeals Board from the Banking Industry cannot be impugned in all aspects.

Consequently there is no basis to consider the second issue relating to the propriety of the order of reinstatement.

Accordingly, the appeal being without merit, in its entirety, be and is hereby dismissed with costs.

Atherstone & Cook, appellant’s legal practitioners