Vimbai Simon Chiginya v Banc ABC

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
CASE NO
LC/H/1076/24
HELD AT HARARE, 30TH JANUARY 2025
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IN THE LABOUR COURT OF ZIMBABWE                       CASE NO LC/H/1076/24

HELD AT HARARE, 30TH JANUARY 2025

AND 6 MARCH 2025

In the matter between: -

VIMBAI SIMON CHIGINYA:				APPELLANT

And

BANC ABC:					                     RESPONDENT

BEFORE THE HONOURABLE KACHAMBWA J,

For the Appellant:                                     P. Makururu, Legal Practitioner

For the Respondent:                                 N. Chidembo, Legal Practitioner

KACHAMBWA, J:

THE APPEAL

This is an opposed appeal against the decision of the Respondent’s Disciplinary Authority. Eight grounds of appeal were raised as follows:

“The Disciplinary Authority grossly misdirected himself in holding that the Appellant breached clause 6.3 (4) of the Respondent’s policy and procedure manual, which manual was not applicable to Appellant.

In any case, the Disciplinary Authority further grossly misdirected himself in holding that the appellant breached clause 6.3 (4) of its policy and procedure manual, which was not operational at the time and no evidence had been led of its existence on a portal.

In any case, the Disciplinary Authority further grossly misdirected himself in dismissing the Appellant on the basis of a breach of clause 6.3 (4) of its policy and procedure manual in instances where a cash check is concerned with items making up a cash balance and not entries, which items are bank notes and their denomination.

The Disciplinary Authority further grossly misdirected himself in holding that appellant failed to initiate criminal proceedings in instances where he complied with what was required of him in terms of the security policy and procedure manual.

The Disciplinary Authority further grossly misdirected himself in holding that appellant failed to initiate criminal proceedings since he had gone to recover the money yet all he had done was to drive the Security Manager who recovered the money.

The Disciplinary Authority further grossly misdirected himself in holding that the Appellant failed to initiate criminal proceedings in instances where an interim report had concluded that there was no evidence of commission of an offence.

The Disciplinary Authority further grossly misdirected himself in holding that the Appellant failed to initiate criminal proceedings in instances where the security policy and procedure manual required that a report to the police is only made in cases of material prejudice.

The Disciplinary Authority further erred in dismissing the Appellant for lax or inadequate implementation and monitoring of CCD controls in instances where no evidence of laxity or inadequate implementation was proved.”

The Court, having heard the parties, dismissed the appeal and now provides reasons for its decision as follows.

BACKGROUND OF APPEAL

The Appellant was employed by the Respondent as a Senior Manager -Branch Operations. The Appellant’s responsibilities were outlined in his Contract of Employment and Job Description, which are linked to the position, and are also governed by relevant Legislation, Regulations, Legal Instruments, the Bank’s Policies, and Regulatory Directives. Among other duties, the Appellant was responsible for ensuring that procedures and processes were established and consistently followed, verifying that cash was balanced daily with any excesses reported according to policy, monitoring approved cash holding limits across all branches, and overseeing staff motivation and discipline, which included managing subordinates both functionally and disciplinarily.

On the 28th of October 2022, the Bank received a sum of US$3,000,000.00 from the Reserve Bank of Zimbabwe (“RBZ”). However, this amount was not recorded in the Bank’s Central Cash Depot Vault Register. On the same day, the Appellant is said to have conducted a cash check and subsequently certified the totals in the Bank’s Vault Register. In doing so, it is alleged that the Appellant failed to adhere to the Bank’s policies and procedures by not properly verifying all items that made up the total figures and did not ensure their accuracy.

The Respondent conducted internal audit investigations regarding fraudulent transactions and withdrawals from its cash vault. These investigations uncovered that US$75,000.00 had been unlawfully taken from the Bank’s vault by vault co-custodian Kudakwashe Benza. The amount was later recovered from Mr. Benza’s residence. Despite the Appellant’s position as Senior Manager and his responsibilities, the Appellant did not take any action against his subordinate(s). This failure directly violated clauses 3.1 of his Job Description, which say that:

“3.1 Resource Management:

Provide input to Branch Managers to put in place meaningful BSC for Branch Operations Teams.

Provide input to ensure that performance reviews are done on time.

Identify training needs for Branch Operations staff and ensure that raining is delivered.

Liaise with other departments to promote team work.

Facilitate various Branch Operations forums.

Provide training and coaching to Branch Operating teams.

Ensure proper training and coaching to Branch Operations Teams.

Attend to all Central Bank meetings in relation to Cash Management.

Facilitate meetings and ensure that minutes are kept and actions followed up.

Responsible for insuring that adequate and relevant skills are retained.

Ensure that there is “On the job training” in the branches.

Achieve resource flexibility through cross training and job rotations.

Responsible for staff motivation and discipline.

and 5.1a, which also states that:

SUBODINATES:

-Manage subordinates functionally and disciplinary.”

Investigations were conducted and revealed poor or insufficient implementation and oversight of Central Cash Depot, herein after referred to as “CCD” controls and procedures within the Bank. This failure included:

the falsification of the Vault Register, omissions from the register,

cash movements without inter-teller tickets,

instances where employees in the Vault took high-denomination notes and left the CCD with the cash hidden in their pockets, as well as swapping higher denomination notes for lower ones, harming the Bank.

improper record-keeping of soiled notes, with no documentation of their denominations,

unofficial swap deals, or arbitrage related to the said notes,

sharing or misuse of sensitive passwords among staff, highlighting general weaknesses in CCD controls, and the unlawful removal of cash from the Vault.

It was alleged that these activities stemmed from the Appellant’s failure to ensure adherence to proper procedures and processes in CCD management, as outlined in his duties and job description. The Appellant’s actions or lack thereof were, therefore, allegedly in violation of the express or implied terms of his employment contract and/or reflected gross incompetence or inefficiency in performing his duties.

As a result on the 4th of June 2024, Respondent charged the Appellant of 3 counts of misconduct  in terms of Section 4 (a) of the Labour National Employment Code of Conduct Regulations 2006 (S.I 15 of 2006) i.e “Any act or conduct or omission inconsistent with the fulfillment of the express or implied conditions of his contract of employment” and/or contravention of Section 4(f) of SI 15 OF 2006 “gross incompetency or inefficiency in the performance of his work.”

The charges against the Appellant arose after a forensic audit investigation carried out by BCA Forensic Audit Services (“BCA”) at the Respondent's request.

The misconduct counts leveled against the Appellant related to:

“Negligent cash checks. This was after the Appellant, on 28 October 2022, certified inaccurate information on the Bank’s Vault Register without checking all the items making up the total figures to satisfy himself as to their correctness.

Failure to initiate criminal proceedings. This was after a sum of US$75,000.00 was unlawfully removed from the Bank’s vault by the Appellant’s subordinate, who did not initiate criminal proceedings against.

Failure to put in place and monitor Central Cash Depot (“CCD”) controls and procedures. This was after investigations uncovered numerous unprocedural CCD practices, notwithstanding the Appellant’s duty to ensure that CCD procedures and processes were adhered to at all times.”

The Appellant was tried, convicted, and dismissed from employment. The internal appeal failed. Aggrieved by the decision, the Appellant appealed to this Honourable Court.

RESPONSE TO THE APPEAL

In response to the appeal, the Respondent raised two preliminary points. The first one was the notice of appeal was fatally defective and that it was not in compliance with Rule 26(1)(b) of the Labour Court Rules 2017. The second one was that  abandoned. He persisted in arguing the first preliminary point. Respondent stated that, although the Appellant faced only three (3) misconduct charges before the tribunal aquo, the Appellant presented eight (8) separate and disjointed grounds of appeal. He noted that it was well-established that multiple grounds of appeal, which attempt to challenge every aspect of the reasoning by the adjudicating authority and fail to clearly define the issues to be decided by the Court, are undesirable and do not meet the standard of conciseness. Respondent referred to the case of Chikura N.O. & Anor V Al Sham’s Global BVI Limited SC 17/2017 where it was stated that:

“….The real issues for determination should be immediately ascertainable on perusal of the grounds of appeal. That is not so in the instant matter. The grounds of appeal are multiple, attack every line of reasoning of the learned judge and do not clearly and concisely define the issues which are to be determined by this Court”.

Based on the above argument, the Respondent prayed for the matter to be dismissed based on the raised preliminary point. The appellant opposed the preliminary point.

The Court stated that, from its perspective, the number of grounds was not a concern. Ultimately, the parties could address the issues. While the grounds could have been put differently, the Court emphasized that it was of the view that it should not strike the matter out or dismiss it, as doing so could result in an injustice. Therefore, the point in limine was dismissed and the matter proceeded to a hearing on the merits.

MERITS OF THE APPEAL

APPELLANT’S SUBMISSIONS

Whether the Bank’s Teller & Cash Handling Policy and Procedure Manual was applicable to the Appellant

The Appellant argued that the policy in question did not apply to him, as he was performing a cash check at a central cash depot (CCD) which had its own policy and procedure manual. He noted that the CCD manual included its guidelines regarding cash checks, and it was these procedures that the Appellant followed. The Appellant was not charged with violating the procedures in the CCD manual, but rather with breaching the Bank's Teller Cash Handling Policy, which did not apply to the CCD. Therefore, the Appellant submitted that the Disciplinary Authority failed to recognize this distinction. Charging him under a policy that was not relevant to his situation and finding him guilty was, consequently, an error.

Whether Bank’s Teller & Cash Handling Policy and Procedure Manual was operational at the time of the alleged offence

Appellant argued that the Disciplinary Authority claimed that an updated version of the manual was available on the portal, including a 2022 version, during the evidence-gathering process. However, the Appellant stated that this claim was not supported by facts. Moreover, the Appellant submitted that the Disciplinary Authority erred by concluding that the policy existed when it was not even utilized. The appellant further noted that the hearing was not based on the 2022 policy, instead, a 2023 policy was referenced. Therefore, the Appellant noted that the conclusion that the manual was violated or that the Respondent had a common law duty of care in which he did not perform a cash check as outlined in the manual was legally incorrect. The Appellant noted that the Disciplinary Authority ought to have reviewed the provisions of S.I 15 of 2006 in conjunction with the manual to determine whether S.I 15 of 2006 was violated.

Whether a cash check is concerned with items making up a cash balance and not entries

The Appellant argued that the Disciplinary Authority made an error by failing to recognize that a cash check focuses on the actual cash balance rather than the entries in the system. In other words, Appellant stated that a cash check compares the physical cash on hand with what is recorded in the electronic system. The individual whose cash was checked had a balance that matched the system's records, indicating that the Appellant was not negligent. He noted that an omission in the vault register was not relevant to a cash check but pertained to day 2 validation. Given this, the Appellant concluded that the conclusion that the Appellant was negligent was not supported. Therefore, the Appellant concluded that the Appellant’s certification of the balance was correct and the Disciplinary Authority’s decision lacked merit and ought to be dismissed.

Whether or not the appellant was obliged to institute criminal proceedings

Regarding the last ground of appeal, Appellant stated that there was no significant harm that had occurred to the bank, as the stolen amount of USD 75,000,000 was recovered on the same day it was discovered missing. Appellant quoted Clause 3.3 of the Security Policy and Procedure Manual of the bank which stated that:

Notwithstanding the provisions of paragraph (3.2) above, only cases where there is material prejudice to the bank will be reported to the police. In all other cases insurance requirement will apply.

Therefore, the Appellant concluded that the Disciplinary Authority made an error in deciding that the Appellant should have initiated criminal proceedings as there was no material prejudice to the bank.

RESPONDENTS SUBMISSIONS

Respondent submitted that grounds of appeal Number 1, 2, and 3, the Appellant seeks to challenge the findings made by the Disciplinary Authority regarding the negligent cash check (count 1). He noted that the key facts that led to the misconduct charge against the Appellant were that on the 28th of October 2022, the Respondent received a sum of US$3,000,000.00 from the Reserve Bank of Zimbabwe. However, this amount was omitted from the Bank’s Central Cash Depot Vault Register. It was noted that on the same day, the Appellant conducted a cash check and certified the total figures on the Bank’s Vault Register, despite the omission.

Respondent further stated that in determining the misconduct charge, the Disciplinary Authority concluded that during cross-examination, the Appellant admitted to the facts upon which the misconduct charge was based. These facts showed that the Appellant had certified inaccurate information and failed to perform a thorough cash check. Hence, the Appellant’s act of certifying inaccurate information was inconsistent with the express or implied terms of his employment contract. Respondent went further to state that, had the Appellant been diligent in carrying out his duties, he would have noticed the omission in the vault register. However, he did not act with due diligence, and as a result, he failed to notice the error.

Respondent stated that grounds of appeal number 1 and 2 missed the point. Whether or not the Teller Policy was in effect or applied to the Appellant was irrelevant. Respondent argued that through his admitted actions, the Appellant breached his common law duty to exercise due care and diligence at all times. This duty did not need to be specified in a written policy to be enforceable or for the employee to be held accountable for its violation.

Likewise, the Respondent submitted that ground of appeal number 3 cannot be upheld. The Appellant’s argument on this ground was that he was not responsible for the misconduct, as the omission in the vault register was related to "day 2 validation." He noted that what was apparent from the Appellant’s argument was an attempt to shift the blame onto others. However, Respondent noted that as a matter of fact and law, the Appellant cannot be exonerated from wrongdoing simply by claiming that others should have noticed the error instead of him. He was the ultimate responsible person.

In grounds of appeal No. 4, 5, 6, and 7, Respondent stated that the Appellant collectively seeks to challenge the findings made by the Disciplinary Authority regarding the failure to initiate criminal proceedings (count 2). The key facts that led to the misconduct charge against the Appellant were as follows:

“Internal investigations revealed that US$75,000.00 had been unlawfully taken from the Bank’s vault by vault co-custodian, Kudakwashe Benza (“Mr. Benza”)”.

This amount was eventually recovered from Mr. Benza’s residence.” Despite the Appellant’s position as Senior Manager, Respondent submitted that he failed or neglected to take any action against Mr. Benza.

The Respondent further noted that after the funds were recovered, no further action was taken by the Appellant or his team. The matter was not reported to the police and instead faded away. Respondent said that a fundamental principle in the employer-employee relationship is that an employee has a duty to protect the interests of the employer. Respondent argued that the Appellant’s decision not to pursue criminal action against a thief who stole US$75,000.00 from the Bank, especially given his senior and managerial role, could never be seen as consistent with the duty to protect the employer’s interests. Therefore, the finding against the Appellant was said to be correct.

With respect to ground number 8 Respondent’s position was that Appellant as Senior Manager – Branch Operations, it was his responsibility to ensure that procedures and processes were in place and followed at all times. However, Respondent said that investigations revealed a lack of proper implementation and oversight of CCD controls and procedures within the Bank. Hence the claim that there was no evidence of laxity or inadequate implementation is therefore not a correct argument. As a result, he argued that the Appellant’s eighth ground of appeal is without merit and should be dismissed.

ANALYSIS

After considering the arguments presented by both parties, the Court is of the view that the Appellant did not adequately perform his duties or exercise the necessary diligence. As a Senior Manager, the Appellant was tasked with ensuring that banking operations were conducted in accordance with the established procedures and policies. His failure to do so resulted in a breach of both his contractual obligations and the expected conduct for his managerial role. Additionally, the Appellant's actions were not in alignment with the duties expected of a Senior Manager at the Bank. His negligence in overseeing controls, failing to take appropriate action regarding theft, and neglecting to properly verify financial records reflected a pattern of carelessness that could not be justified. The Appellant's inability to meet the standards set out in his contract and job description is alarming. He had a crucial responsibility to protect the employer's assets, and the evidence shows that he did not fulfill this obligation at all. He did not even seem to appreciate his role.

It is important to note that the Appellant certified inaccurate information on the Bank’s Vault Register without thoroughly checking all the items that made up the total figures when the bank had received US$3,000,000. The Appellant was expected to exercise due diligence, which he failed to do, thereby putting the bank at risk of potential loss due to his failure to ensure accuracy in executing his duties as Senior Manager - Branch Operations. A breach of employment terms undermines the very foundation of the employment relationship, thereby providing the employer with valid grounds to terminate the employee’s contract.

In the case of Celsys Limited v Nobert Ndeleziwa SC 298/11, on page 5, Gwaunza JA (as she then was) referred to Standard Chartered Bank v. Chapuka SC 125/04, where it was stated that:

“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.”

Furthermore, in the case of Clouston & Co Ltd v. Corry, 1906 AC 122, Lord James of Hereford remarked, by way of a dictum at p 129 that:

“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.”(my underlining)

Considering the given analysis, it is the Court’s view that the appeal has no merit and ought to be dismissed.

DISPOSITION

After having looked at both parties’ arguments before this court, it is ordered that:

The appeal be and is hereby dismissed with costs.