Judgment No. SC. 125/04
Appeal No. 361/03
CHARTERED BANK ZIMBABWE LIMITED
COURT OF ZIMBABWE
CJ, ZIYAMBI JA & MALABA JA
OCTOBER 5, 2004 & JANUARY 27, 2005
for the appellant
Maganga, for the respondent
MALABA JA: This appeal is against part of the judgment of the
then Labour Relations Tribunal (the Tribunal) setting aside
dismissal of the respondent (Chapuka) from employment with the
appellant (Standard Chartered) and substituting the
FINAL WRITTEN WARNING on a conviction of misconduct
inconsistent with the fulfilment of the express or implied conditions
of his contract of employment in contravention of s 11(1) of
Category D offences under the Employment Code of Conduct
for the Banking Undertaking, Statutory Instrument 201 of 1995 (the
facts on which the appeal turns are these. Chapuka, who was
employed by Standard Chartered, a financial institution, as a
service manager at its branch in Bindura, was in 1999 granted a loan
under a scheme to assist employees to build their own
houses. The loan was granted in terms of a contract which required
that payment of the money be made through bank cheques
Standard Chartered on its branch at Africa Unity Square in Harare in
favour of suppliers of building materials or contractors.
26 August 1999 Chapuka submitted a written request to the Credit
Department at Standard Chartered's Africa Unity Square
had the responsibility of administering the housing loan scheme, for
two bank cheques in the amounts of $17 496.37
and $15 638.38
drawn in favour of Valley Farm Services and D.S.T. respectively for
the purchase of building materials.
cheques were drawn in favour of the named payees and given to
Chapuka. They bore two signatures of officials authorised
the cheques on behalf of Standard Chartered. Each cheque was
crossed and endorsed account payee only. Once the
were in his custody, it became Chapukas duty to preserve them in
their complete and regular form and deliver them to the
payees in that state.
breach of the obligation to preserve the instruments in their
integrity, Chapuka altered them in material parts by deleting the
names of the payees, by putting lines across them and substituting
his wifes name as payee. He did not deliver the cheques to
intended payees. He signed for the alterations and got a teller who
was his subordinate to counter-sign so as to create the
that the alterations had the authority of Standard Chartered. To
induce the unsuspecting teller to put his signature
on the altered
cheques, Chapuka misrepresented to him that the cheques had been
drawn in favour of the original payees by mistake
and the alterations
had been authorised by the Credit Department at Africa Unity Square
Branch of Standard Chartered.
forged cheques were deposited by Chapuka into his wifes account.
An amount of $32 000 was immediately withdrawn therefrom
deposited by Chapuka into his own personal account, leaving a balance
of $2 099.75 in his wifes account. He deposited
the $32 000
into his account without having sought and obtained authority from
the branch manager.
To guard against its employees misappropriating depositors funds
and depositing them into their own accounts, the bank had a standing
order requiring that all deposits by employees into personal accounts
should receive the authority of branch managers.
discovering Chapukas conduct, the branch manager charged him with
conduct inconsistent with the fulfilment of the express
conditions of his contract of employment. On 21 September 1999
Chapuka appeared before a hearing officer to answer
the charge, the
particulars of which were that Chapuka had
1. Altered bank cheques without authority/falsified bank records.
a subordinate to carry out an improper transaction.
cheques meant for the benefit of a bank employee into the wifes
$32 000 into a personal account without authority.
5. Left a
balance of $2 099.75 in the wifes account when she was not
entitled to it.
Chapuka did not deny committing all these acts. He said he wanted
to have access to the money so that he could buy the cheapest
building materials in the market. As the facts were not in dispute,
the hearing officer had no difficulty in holding that the misconduct
which Chapuka admittedly committed was inconsistent with the
fulfilment of the express or implied conditions of his contract of
The hearing officer also held that the misconduct by
Chapuka involved a breach of trust and its degree of seriousness
dismissal from employment, as it struck at the root of the
confidential relationship between the parties. Chapuka was
appealed unsuccessfully to the grievance and disciplinary committee
and then to the appeals board of the National Employment
the Banking Undertaking. In holding that the misconduct justified
Chapukas dismissal, the chairman of the appeals
board, writing for
all its members, on 17 December 1999, said:
The facts of the case were clear and the Appeals Board were in
complete consensus that the evidence clearly showed that Mr Chapuka
was guilty of the charges laid against him. They agreed that he had
abused his position in the bank to misdirect money that was
paid for a house. The bank would never have lent him the money if
they were not sure that the house itself would act as
Mr Chapuka knew this and deliberately flouted the regulations.
They all felt that Mr Chapuka had abused a
position of trust.
appeals boards view of the facts constituting the misconduct
committed by Chapuka was that it was not trivial and inadvertent
serious and deliberate.
determination that the misconduct Chapuka was convicted of having
committed gave Standard Chartered the power and authority
Chapuka from employment, as it constituted a serious breach of trust
and confidence on which the relationship of employer
and employee was
based, was not challenged on appeal to the Tribunal. Chapuka
ground of appeal was that he had been wrongly
contention was that he should have been charged with failure to
comply with standing instructions in contravention
of s 8 of
Category B offences under the Code.
Tribunal confirmed the determination by the appeals board that
Chapuka had committed conduct which was inconsistent with the
fulfilment of the express or implied conditions of his contract of
employment, effectively holding against him on the ground on which
the appeal turned.
Without it having been raised as a question for determination by
Chapuka, the Tribunal nonetheless considered the correctness or
otherwise of the decision by the appeals board that the misconduct
Chapuka had been found to have committed gave Standard Chartered
right to dismiss him from employment. The inference it drew from
some of the facts was that the dismissal was not justified.
It is not disputed that the appellants conduct was improper.
However, it must be borne in mind that the intention behind
(appellants conduct) was not to defraud the respondent. When the
respondent wrote a cheque (sic) in favour of the creditors it
was effectively doing so on the appellants behalf. Thus what
money was being paid to the creditors
effectively belonged to the
appellant. What the appellant did, did not prejudice the bank.
dismissal was then set aside and substituted with the penalty of a
FINAL WRITTEN WARNING. The Tribunal said that in substituting
dismissal with the less severe penalty of a FINAL WRITTEN WARNING
it acted in terms of s 91 of the Labour Relations Act
[Chapter 28:01] (the Act).
decision was attacked on appeal to this Court on two grounds. The
first was that s 91 of the Act did not authorise the
substitute its own determination for a determination on a matter not
appealed against. The second was that as its decision
could only be
made upon consideration of the correctness of the dismissal of
Chapuka as a question of fact, no such question had
been raised in
the grounds of appeal for the Tribunal to consider. Even if the
question had been raised, the determination would
have been reached
only if the Tribunal was satisfied in regard the question that the
decision of the appeals board was one no reasonable
found it unnecessary to consider the validity of the first ground of
appeal because I am satisfied that the determination
misconduct committed by Chapuka did not give Standard Chartered the
right to dismiss him from employment was clearly wrong.
are the following
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.
In Clouston & Co Ltd v Corry  AC 122 LORD JAMES OF
HEREFORD remarked by way of a dictum at p 129:
Now the sufficiency of justification depends upon the extent of
misconduct. There is no fixed rule of law defining the degree
misconduct which will justify dismissal. Of course, there may be
misconduct in a servant which will not justify the termination
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. (the underlining is mine for emphasis)
Sinclair v Neighbour  2 QB 279 SELLERS LJ held at
287 that to be conferred with the power and authority to dismiss a
manager found guilty of
taking money out of the till and leaving an
I.O.U. note when he knew that if he had asked he would not have
been given the
it was sufficient for the employer if he could, in all the
circumstances, regard what the manager did as being something
inconsistent incompatible with his duty as the
manager in the business in which he was engaged.
Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (S)
McNALLY JA approved of the dictum by LORD JAMES OF
HEREFORD in the case of Clouston & Co Ltd v Corry supra
before going on at 218H-219A to say the following:
I consider that the seriousness of the misconduct is to be
measured by whether it is inconsistent with the fulfilment of the
express or implied conditions of his contract. If it is, then it
is serious enough prima facie to warrant summary dismissal.
Then it is up to the employee to show that his misconduct, though
technically inconsistent with the
fulfilment of the conditions of his
contract, was so trivial, so inadvertent, so aberrant or otherwise so
excusable, that the remedy
of summary dismissal was not warranted.
case it was held on the facts by the Tribunal that the misconduct
Chapuka had been convicted of having committed was inconsistent
the fulfilment of the express or implied conditions of his contract.
He did not show that the misconduct was so trivial,
inadvertent, so aberrant or otherwise so excusable, that the remedy
of dismissal was not warranted.
Workers Union v Brodrick 1948 (4) SA 959 (A) GREENBERG JA
held at p 978 that a wrongful and unauthorised alteration by its
Secretary General of
a resolution made by the executive committee of
the appellant amounted to misconduct which justified summary
termination by the appellant
of the relationship of employer and
clear from the cases that even if the question of the correctness of
the decision by the appeals board that Standard Chartered
justified in dismissing Chapuka from employment for the misconduct
had been raised as a ground of appeal, the Tribunal would
have had to
be satisfied that the decision was on all the facts clearly wrong.
judgment, what was said by the Tribunal about the effect of the
misconduct committed by Chapuka against Standard Chartered
have been sufficient to justify interference with the judgment of the
appeals board. The relevance of the statement by
the Tribunal that
the intention of Chapuka in committing the misconduct was not to
defraud Standard Chartered and that no prejudice
was suffered by
Standard Chartered as a result of his acts is open to doubt, because
the alleged intention of a fraudulent employee
cannot be taken as a
standard with which to determine whether an employer acted reasonably
in taking the view that the misconduct
was so serious in nature as to
justify dismissal. The unlawful intention would have been one of
the circumstances which put the
employee in the position in which he
considered the pursuit of personal interest more important than the
honest discharge of his
duties to the employer.
The relationship between Standard Chartered and Chapuka was one based
upon trust and confidence. It is sufficient that in dismissing
Chapuka from employment Standard Chartered felt that as a result of
his own acts of misconduct it could not continue in future to
in him the trust and confidence that he would perform his duties as a
senior member of staff with a high degree of honesty.
It was also
sufficient that any reasonable employer in the position of Standard
Chartered could on the facts have dismissed Chapuka
for what he did.
appeal is allowed with costs. The decision of the Tribunal is set
aside and substituted with the following
The appeal against the decision of the appeals board of the
National Employment Council for the Banking Undertaking upholding
dismissal of the respondent from employment is dismissed with costs.
CJ: I agree.
JA: I agree.
Blanckenberg, appellant's legal practitioners
& Maganga, respondent's legal practitioners