The appellant, (hereinafter referred to as “the Bank”), is
a registered commercial bank. It has branches
throughout the country.
Until 7 September 2004, the respondent was employed by it as a Branch
Manager at its Jason Moyo Branch in Bulawayo.
On 22 June 2004, the Bank preferred the following charges of misconduct against
the respondent:
(i) Failure to comply with standing instructions;
(ii) Gross incompetence or inefficiency;
(iii) Habitual and substantial neglect of his duties; and
(iv) Any act, conduct or omission inconsistent with the fulfilment
of the express or implied conditions of his contract as per the Labour
Relations Act [Chapter 28:01] as amended by Act No.17/02 as read with S.I.130
of 2003.
On 20 August
2004, a disciplinary hearing was conducted
by the Bank in respect of these charges and this resulted
in the respondent being found
guilty on all charges. A penalty
of dismissal was imposed.
The facts upon which the charges were premised are the
following.
The respondent, as the Branch Manager for the Jason Moyo
Branch, had a lending limit of Z$10 million. On 2 June 2004, the respondent
authorized the encashment of a cheque in the sum of Z$73 million against an account which was already
overdrawn in the sum of Z$10,690,875=. In respect of the second charge, the
facts on which the respondent was convicted were that his branch was amongst
the highest in terms of anomalies relating to the failure to adhere to data
capture. The branch had the highest number of overdrawn accounts, greatest
exposure to risk in relation to client indebtedness, as well as the highest
number of unclassified savings accounts. In relation to the third charge, the
respondent was alleged to have disobeyed instructions to 'un-pay' cheques
against certain accounts, which was evidence of habitual and substantial neglect
of his duties.
Overall, he was charged with an act, conduct or omission
inconsistent with the fulfilment of the express or implied conditions of his contract.
The respondent was aggrieved by the outcome
and appealed to a labour officer,
who, in turn, on 9 December 2004, referred the matter to compulsory arbitration
on an alleged unfair dismissal.
On 14 February 2005, the arbitrator issued an award. She
confirmed the finding of guilt
on the charges of misconduct but set aside the penalty
of dismissal imposed
by the Bank. The arbitrator also ordered the Bank to reinstate the
respondent, serve him with a final written warning and transfer him to a
different branch. The Bank appealed to the Labour Court which dismissed the
appeal with costs and upheld the arbitral award.
This appeal is against the dismissal of that appeal by the Labour Court.
The appeal is premised on essentially two grounds;
(i) Firstly, that the court, in upholding the arbitrator's
award against a finding of misdirection on the part of the arbitrator, had also
misdirected itself; and
(ii) Secondly, that the court a quo had misdirected itself in its finding that the severe written
warning operating against the respondent should not be taken into account in
the assessment of a penalty to be imposed upon
him.
The basis for the arbitrator's decision to set aside the dismissal of the respondent by the Bank is implicit in the
following excerpt from the arbitral award:
“Be that as it may, I find it very difficult to isolate
Mbalaka and dismiss him after the Bank officially presented a table of managers
from branches nationwide who flouted the same rules as Mbalaka
did. Mbalaka's percentages of flaws could have been higher
but the fact remains the same, more than one manager committed the same
offence. Singling out Mbalaka
for dismissal irrespective of his personal
record in the file would be tantamount to victimisation
unless there was a Code of Conduct which tabulated degrees of blameworthiness
on each offence. The Labour Amendment Act 17 of 2002 read together with S.I.130
of 2003 do not express different categories of punishment based on the offences.
As long as an offence
is committed it deserves the same concern
but the Act gives room to avoid dismissal by looking at
mitigating factors; section 12B(4).”(sic)
It is also evident from the arbitral award that the
arbitrator neither considered nor made a determination on the exercise, by the Bank,
of its common law right to dismiss an employee where an act of misconduct is
regarded by an employer as going to the root of the employment contract. There
was no finding on the part of the arbitrator that the employer, in imposing the penalty of dismissal, had exercised its discretion capriciously nor that it had acted upon a wrong or incorrect principle
of the law.
The Labour Court dismissed the appeal despite a finding
which it expressed in these terms:
“I find that the arbitrator misdirected herself in only two aspects. Firstly,
in finding that because Mr Mbalaka was not the only one who committed
acts of misconduct, to charge him alone
was tantamount to victimization. This was a misdirection that goes to the
root of the case because it influenced the arbitrator in coming up with the award she made and in that manner, that decision was partly based on a wrong premise.”…,.
The Labour Court also relied on the dicta in Lancashire
Steel (Private) Limited v Mandevana
& Ors SC29-95, wherein the court stated:
“Arguments may be addressed ad misericordiam as to how unfair it is that the four
respondents out of a number of forty workers who participated in the collective
unlawful job action should have been selected for punishment, but such
arguments cannot absolve them of their breach of their statutory duty not to
participate in such action. It is
not uncommon for the alleged ringleaders in any unlawful gathering or action to be singled
out for punishment. If they are guilty, it is not in law relevant that others may be guilty.”…,.
It is beyond doubt that the Labour Court was alive to the
discretion that is reposed in the employer in the application of this principle
in disciplining an employee for an alleged misconduct as appears in the
following statement by the court a quo:
“This does put to rest the argument about perceived
selective punishment and victimisation. The respondent should face the
consequences of his actions and cannot be allowed to hedge behind others.”
In our view, this finding by the Labour Court was eminently
sound, both on the facts and on the law, and yet, the Labour Court then went on
to contradict itself in an apparent abandonment of this finding by stating as follows:
“The arbitrator did support the argument in a way. She
stated that Mbalaka's co- workers, who were probably on the same black list with him, exited with hefty packages. By parity of reasoning, it defies logic to dismiss
him. I agree with her. He has faced the music as it were, gone through a
gruelling hearing, borne the embarrassment that goes with it, and a dismissal
where others are let go with hefty packages defies all logic and common sense,
since disparity in sentences is discouraged. The misdirection is thus not so
gross as to warrant interference by this court.”…,.
Given the finding by the court a quo that the arbitrator had misdirected herself in ruling
that the charges
of misconduct preferred against the respondent amounted to selective punishment and victimization,
and that the misdirection went to the root of the case, it is the finding of
this Court that the Labour Court, in turn, grossly misdirected itself in then
holding that the misdirection by the arbitrator was not so gross as to warrant interference….,.
In the light of the misdirection by the Labour Court…, we
find that there is merit in the appeal and it ought to succeed.
Accordingly, it is ordered as follows:
1. The appeal be and is hereby allowed with costs.
2. The judgment of the Labour
Court is hereby
set aside and is substituted with the following:
(a) The appeal is allowed with costs.
(b) The arbitral award by Mrs F Muzofa, of 14 February 2005,
be and is hereby set aside.
(c) The finding of guilt by the Hearing Officer,
and the resultant dismissal of the respondent from employment, be and is hereby upheld.
