No. SC 105/04
Appeal No. 287/99
THEOPHILUS DUBE v STANDARD
COURT OF ZIMBABWE
ZIYAMBI JA & GWAUNZA JA
JUNE 21 & DECEMBER 16, 2004
T Matinenga, for the
Phiri, for the
JA: The appellant was employed by the respondent as operations
manager at its Robert Mugabe Branch, a post to which he was
in 1993 having joined the respondent in 1976. On or about 30
September 1994, he was placed on suspension without pay and
application was made to the Minister for authority to dismiss him in
terms of the Labour Relations (General Conditions of Employment)
(Termination of Employment) Regulations, 1985, SI. 371/85 (the
Regulations) on the grounds that he had displayed gross
incompetence and inefficiency in the performance of his work. The
application was granted by the Labour Relations Officer and upheld
both by the Senior Labour Relations Officer and the Tribunal which
delivered, on 27 September 1999, the judgment now appealed against.
The record is long and illegible
in parts. It also contains unnecessary material which need not
concern the Court. The papers are
out of sequence. However
counsel for the respondent has conveniently set out the background
facts in chronological order and I
propose to follow the same order.
On 16 July 1993, the Human
Resources Division of the respondent issued a circular relating to
the unprecedented level of fraud in
the bank involving no fewer than
twenty-nine staff members and pointing out that this was often
brought about by a total disregard
for standing instructions. A
warning was issued that decisive action would be taken to rectify the
17 August 1993 the Head of Branch Operations wrote to the appellant
outlining the duties of branch management and emphasizing the
follow laid down instructions and to undertake regular scrutinies of
On 27 January 1994 the Head of
Branch Operations reported adversely to the Executive Director,
Personal Banking on the unacceptable
state of Robert Mugabe Branch.
He complained to the appellant of the apparent careless attitude
regarding systems and controls
which had led to recent claims by
customers, loss of entries and failure to carry out customers
instructions on time.
appellant was requested to submit an Action Plan by 3 February 1994
outlining how he intended to avert the deteriorating situation.
at your background,
especially your experience in the Internal Control Function, we would
expect tight controls in your administration. We expect
to see a
revamp in your systems and administration. If no improvement is
noticeable with immediate effect we will have no option
but to adopt
3 February 1994 the appellant replied, assuring his superiors that he
was in full control of the branch situation and am always
at ways to improve operations and service and that work is up to
date. He submitted the required Action Plan.
11 February 1994 a circular was issued to all managers referring to
the adverse inspection reports from auditors, particularly
reports graded 3 and 4. These reports were said to be receiving an
increased level of scrutiny not only from local Management
but by the
respondents London Head Office as well. Managers were warned
that accountability for such reports would impact on
development inter alia.
28 February 1994 the Head of Branch Operations wrote to the
appellant, complaining that his list of objectives for 1994
the same objectives which have been set year after year
but you have had limited success in achieving. He urged the
to exert greater effort during that year in order to fulfil
all his objectives.
8 April 1994 the Head of Branch Operations wrote to the appellant
expressing the banks disappointment that the Robert Mugabe
had been awarded the lowest rating by the Internal Controller during
an inspection for the quarter year ended 31 March 1994.
explanation was demanded for this sad state of affairs and how you
are going to rectify it.
2 June 1994, the Head of Branch Operations again wrote to the
appellant, this time advising him of an audit soon to be undertaken
at Robert Mugabe Branch. It was pointed out to the appellant that
as he had been provided with matters arising from previous
audits of three other branches of the bank there was no reasonable
excuse why the weaknesses highlighted in these branches
at the appellants branch. The appellant was urged with the aid
of his staff to update and rectify all areas
you are not happy
with so as to make the audit a success. The appellant was urged
to aim for and attain an overall rating of
not less than 2.
internal control report for the Robert Mugabe Branch for the period
ended 30 June 1994 revealed that the standard of operations
branch is generally unsatisfactory. It was the view of the Head
of Internal Control that:
is quite apparent that a casual approach is being adopted in many of
the key control areas and, as an example, we find it inconceivable
that the Operations Manager can permit bank cheque amounts to be
cleared to unclaimed balances for such well known customers as Cone
Textiles, Old Mutual etc.
audit of selected operational areas of Robert Mugabe Road Branch was
conducted as at the close of business on 3 August 1994.
was graded 4 reflecting an unsatisfactory system of internal
control. The major cause of the present state
of controls is
non-compliance with laid down instructions specifically designed to
manage inherent risk. It was found that contributing
were inadequately trained staff, increased volumes of work, weak
management and poor communication of problems to Head Office.
8 September 1994 the Robert Mugabe Branch again received an adverse
audit report. Out of eight areas audited, five grade 4s were
awarded. The grades achieved were considered unsatisfactory. This
prompted a letter from the Executive Director for Personal
the appellant on 26 September 1994, expressing his disappointment at
the unsatisfactory grading of the branch. The letter
reads in part:
previous discussions on the adverse ratings accorded your Branch by
Internal Control, you vehemently denied that the reports were
reflection of the lax controls and lack of adherence to systems and
procedures prevalent in almost all areas under your control.
asserted that your work deserved better grades from the internal
controller who you alleged to be biased against you. You
your staff including the known poor performers and maintained that
their performance was good. You took issue with your
appraisal rating and called on us on several occasions seeking a
reversal of the adverse grading. As a result of your
attitude and your refusal to acknowledge your glaring shortcomings,
we found it difficult to assist you improve your performance.
is not surprising, then, that a disciplinary hearing was held on 30
September 1994 and the appellant was by letter of that date,
suspended from employment without pay or other benefits pending the
determination of an application to the Ministry of Labour for
approval to dismiss him in terms of s 3(1)(h) of the Regulations.
his suspension, and on 1 December 1994, the new Branch Operations
Manager of Robert Mugabe Road Branch discovered the fraudulent
activities of one Kandafu in relation to customers accounts at
that Branch involving some $67 553,88 during the period 24 December
1993 to 7 November 1994. The following is an extract from his
report to the Head of Branch Operations:
Kandafu credited his account with funds intended for commission from
special clearances. He also fraudulently debited customers
accounts and siphoned funds through other customers (believed to
be his friends) accounts. These funds were then withdrawn in
or through the issue of bank cheques which were cashed over our
deposits to his account were not authorised and Mr Kandafu seems to
have taken advantage of the weak controls over this area as
appear that such deposits were not being queried
On 3 May 1995 permission was
granted to the respondent to terminate the appellants services.
The appellant was found by the Labour
Relations Officer to have
contravened ss 3(1)(a) and 3(1)(h) of the Regulations. The relevant
provisions are set out below:
(1) Where an employer has good cause to believe that an employee is
(a) any act, conduct or omission
inconsistent with the fulfilment of the express or implied conditions
of his contract;
(b) wilful disobedience to a
lawful order given by the employer;
(c) wilful and unlawful
destruction of the employers property;
(d) theft or fraud;
(e) intoxication that renders him
incapable of performing his duties properly;
(f) absence from work for a
period of five or more working days without reasonable excuse;
(g) habitual and substantial
neglect of his duties;
(h) gross incompetence or
inefficiency in the performance of his work;
employer may suspend such employee without pay and other benefits and
shall forthwith apply to a labour relations officer for
an order or
determination terminating the contract of employment.
The main grounds of appeal relied
upon by the appellant were:
that the learned Deputy
Chairman of the Tribunal erred in law by holding that the appellant
had committed a dismissable act of
misconduct in terms of the
registered Code of Conduct when in fact the appellant was not
governed by any registered Code of Conduct;
the learned Deputy Chairman erred and misdirected himself in law in
holding that the manner in which a fellow employee was
not a relevant consideration.
is clear from the record that the appellant was found guilty of
having contravened s 3(1)(h) of the Regulations and that authority
for his dismissal was granted in terms of s 2 of the same
Statutory Instrument. That the Tribunal was aware of this fact is
quite clear from the judgment. At p 9 of the record the
learned Deputy Chairman of the Tribunal said:
respondent sought the appellants dismissal on allegations of gross
incompetence or inefficiency in the performance of his work.
at p 11 :
I am satisfied that the
respondent has proved on a balance of probabilities that the
appellant was grossly incompetent or inefficient
in the performance
of his work.
evidence clearly supports this finding.
was common cause at the hearing before the Tribunal that the Code of
Conduct for the Banking Industry, SI 201/95, was inapplicable
present matter. The reference to a dismissable act of misconduct
in terms of a registered Code of Conduct by the learned
Chairman is clearly inadvertent since it is evident in his judgment
that he was aware, and based his judgment on the fact,
appellant had been dismissed on the authority granted by the Labour
Relations Officer to dismiss him.
to the second ground of appeal advanced on behalf of the appellant,
namely, that the learned Deputy Chairman erred and misdirected
himself in law in holding that the manner in which a fellow employee
was punished was not a relevant consideration, the learned Deputy
Chairman relied on the remarks of McNALLY JA in Lancashire
Steel (Private) Limited v Elijah Zvidzai Mandevana & Ors
SC 29/95 at p 6 of the cyclostyled judgment where he said:
may be addressed ad
as to how unfair it is that the four respondents out of a number of
forty workers who participated in the unlawful collective job
should have been selected for punishment, but such arguments cannot
absolve them of their breach of their statutory duty not
participate in such action. It is not uncommon for the alleged
ringleaders in any unlawful gathering or action to be singled
they are guilty it is not in law relevant that others may also have
In the instant case authority was
granted to terminate the appellants services on the grounds of
gross incompetence or inefficiency
in the performance of his work.
It matters not that authority was not sought for the dismissal of
others who performed badly.
The learned Deputy Chairman was correct
in his application of the law.
the Courts attention to s 12B of the Labour Act [Chapter
which was introduced by the Labour Relations Amendment Act, 2002
No. 17 of 2002 (the Amendment Act), and pointed out
in terms of subs (4) of s 12B the Labour Court has a discretion
to order any other form of punishment. Subsection 4 provides:
any proceedings before a labour officer, designated agent or the
where the fairness of the dismissal of an employee is in issue, the
adjudicating authority shall, in addition to considering the
or gravity of any misconduct on the part of the dismissed employee,
consider whether any mitigation of the misconduct avails
to an extent
that would have justified action other than dismissal, including the
length of the employees service, the employees
disciplinary record, the nature of the employment and any special
personal circumstances of the employee.
the Amendment Act came into effect in March 2003, more than three
years after the matter was heard by the Tribunal and could
therefore, apply to the determination of this case.
submissions were made, in the appellants heads of argument, on the
question of the fairness of the appellants dismissal.
background facts set out in great detail at the commencement of this
judgment show that the appellant was given several warnings
opportunities to better his performance, to no avail. Accordingly,
even if the Amendment Act had been relevant to the determination
this matter, this is not a case where the Tribunal could be faulted
for failing to impose a sentence less than dismissal.
In the result, the appeal is
dismissed with costs.
SANDURA JA: I agree.
GWAUNZA JA: I agree.
Muunganirwa & Company,
appellant's legal practitioners
Welsh & Guest,
respondent's legal practitioners