DISTRIBUTABLE (10)
Judgment
No. SC 26/09
Civil
Appeal No. 401/05
BARCLAYS
BANK OF ZIMBABWE LIMITED
v
FORTUNE NCUBE
SUPREME COURT OF
ZIMBABWE
SANDURA JA, ZIYAMBI JA
& GARWE JA
HARARE, OCTOBER 16,
2007 & MAY 12, 2009
G V Mamvura, for
the appellant
D T Mwonzora,
for the respondent
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
banks
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
banks 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
