THE Supreme Court has ruled that employers have a right at common law to single out an employee for dismissal even in cases where several other workers are guilty of the same offence.In a judgment delivered in August this year, but the full details of which were only made public last week, the Supreme Court ruled that ZB Bank (formerly the Zimbabwe Banking Corporation) was right in dismissing one of its branch managers for offences that several of his colleagues throughout its branch network were habitually committing.
In September 2004, the bank dismissed Saidi Mbalaka, a manager at one of its branches in Bulawayo after finding him guilty of gross misconduct. Mbalaka had been charged with four counts that were listed as: Failure to comply with standing instructions; gross incompetence or inefficiency; habitual and substantial neglect of duties; and an act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract.
At the time, Mbalaka who had a (per client) lending limit of ZW$10 million, had authorised the encashment of a ZW$73 million cheque against an account that was already overdrawn to the tune of over ZW$10 million.
An investigation by the bank revealed that his branch was among 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.
It was also established that Mbalaka had disobeyed instructions to ‘un-pay’ cheques against certain accounts, which the bank charged was evidence of habitual and substantial neglect of his duties.
After a disciplinary hearing found him guilty on all the four charges, Mbalaka was dismissed.
An aggrieved Mbalaka appealed to a labour officer against his dismissal, arguing that since he was not the bank’s only manager who had misbehaved in this way, his dismissal amounted to selective punishment and victimisation.
The matter was referred to an arbitrator who, in February 2005 — while agreeing with the guilty verdict — however, ruled that instead of being dismissed, the branch manager should be given a final written warning and be transferred to another branch.
The bank appealed against the arbitrator’s ruling to the Labour Court, which also confirmed that Mbalaka was indeed guilty of the four offences, but still upheld the arbitrator’s ruling that he be re-instated, warned and transferred to a different branch.
The arbitrator had made the ruling that Mbalaka should be re-instated on the basis that he was not the only one in the financial services group who had committed similar offences. This is the ruling that the Labour Court concurred with.
This forced the bank to appeal to the Supreme Court.
Justice Anne-Mary Gowora, sitting with Justices Susan Mavangira and Elizabeth Gwaunza as the Supreme Court, trashed the previous rulings saying the bank was right in dismissing Mbalaka as he had his own contract as an individual that he alone was supposed to protect and therefore could not be allowed the privilege to hedge behind others.
It was the Labour Court that ruled that Mbalaka could not hide in the crowd, but went on to contradict itself by nevertheless agreeing that he should be re-instated.
“Given the finding by the (Labour) 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 victimisation, and that the misdirection went to the root of the case, it is 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,” Justice Gowora ruled.
The court then ruled that ZB Bank was right in dismissing Mbalaka.
This particular case also serves to highlight how slow the Zimbabwean judiciary process can be as it took the Supreme Court a record 10 years to make a ruling.
This latest ruling adds to a barrage of other cases in which the Supreme Court has of late ruled in favour of employers.
In July, the court ruled that employers have a right at common law to terminate workers contracts of employment on the same three months’ notice that workers enjoy.
The ruling resulted in more than 30 000 workers losing their jobs as Zimbabwean employers — who are struggling to keep afloat in the country’s harsh trading environment — stampeded to shed off extra staff.
The same court followed up with another ruling to the effect that staff benefits are not an entitlement, but a favour that employers can choose not to give their workers.
In yet another ruling, the Supreme Court ruled that it is the prerogative of the employer to decide where an individual in their employment should be deployed.
This was a ruling in a case in which it dismissed a constructive dismissal case appeal by a former Rainbow Tourism Group general manager, Richard Nkomo, who had left the hotels group employment after being transferred from Harare to Victoria Falls.