SANDURA JA: This is an appeal against a judgment of the
Labour Court which dismissed the appeal by the appellant ("the bank") against the
decision of the appeals board of the Employment Council for the Banking
Undertaking which had declined to hear the bank's appeal against the decision
of the grievance and disciplinary committee reinstating the respondent
("Ncube") as an employee of the bank.
The relevant facts are
as follows. Ncube was employed by the
bank at its Main Street Branch in Bulawayo
as a senior cashier. In March 2002 the
bank preferred charges of misconduct against him in terms of its Code of Conduct)
("the Code"), published in Statutory Instrument 273 of 2000.
On 24 April 2002
Ncube appeared before a hearing officer, and was found guilty of failure to
comply with standing instructions or follow established procedures resulting in
substantial loss to the bank, an act of misconduct which fell within
category D, and the penalty for which was dismissal. Accordingly, the hearing officer recommended
that Ncube be dismissed, and he was dismissed on 26 April 2002.
On 27 April 2002
Ncube appealed to the grievance and disciplinary committee which, on
24 May 2002, altered the verdict to one of guilty of negligence causing a
substantial loss to the bank, an act of misconduct which fell within
category C in terms of the Code, and substituted a severe written warning
for the penalty of dismissal.
Aggrieved by that
result, the bank appealed to the Employment Council for the Banking
Undertaking, but did not do so within seven days as required in terms of the
Code.
When the matter came
before the appeals board of the Employment Council for the Banking Undertaking
on 7 August 2002, the appeals board declined to hear it on the ground that
the appeal had not been noted timeously.
Thereafter, the bank
appealed to the Labour Court
which dismissed the appeal.
Dissatisfied with that result, the bank appealed to this Court.
The real issue in this
appeal is whether the appeals board erred when it declined to hear the
appeal. The Labour Court answered that question in
the negative. In my view, that decision
was correct.
In declining to hear the
appeal, the appeals board said the following:
"The Appeals
Board considered the fact that the case had been appealed to the NEC out of
time. The excuse given by the bank was
that the case had erroneously been sent to another Grievance and Disciplinary
Committee. However, the Appeals Board
did not feel that a mistake like that was a valid excuse for submitting a late
appeal. The bank has vast experience in
dealing with disciplinary issues, and the procedure is very clear in the Code
of Conduct."
It was, therefore,
common cause that the appeal had not been noted timeously, although it is not
clear from the record when the appeal was noted. However, in a letter dated 3 July 2002,
and addressed to the Secretary of the Employment Council for the Banking
Undertaking, Ncube stated that the bank filed its appeal on 14 June 2002,
about three weeks after the grievance and disciplinary committee had made its
decision.
As the appeal was not
noted timeously, it was not properly before the appeals board, and the appeals
board properly declined to hear it.
In addition, there is no
provision in the Code which empowers the appeals board to condone the late
noting of an appeal to it.
Consequently, the appeals board correctly declined to condone the bank's
failure to note its appeal timeously.
In the circumstances,
the appeal is devoid of merit and is, therefore, dismissed with costs.
ZIYAMBI JA: I
agree
GARWE JA: I
agree
Scanlen & Holderness, appellant's legal
practitioners
Mwonzora &
Associates, respondent's legal practitioners