Appeals must be on a point of law

lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”
Unfortunately, some companies are not conversant with this and have to file amended grounds of appeal.
One such company was FBC Bank Limited that had to amend its appeal against an arbitration award in favour of a worker who had been dismissed.
Regina Taonezvi had been charged with and dismissed for gross incompetence or inefficiency in the performance of her work. This was in terms of Section 4 (f) of the Labour (National Code of Conduct) Regulations 2006 S.I 15 of 2006.
Conciliation proceedings yielded nothing and the matter was referred to arbitration. The term of reference under which the arbitrator was to consider was whether the dismissal was fair or not. He was also to determine the remedy.
The background of the matter was that Taonezvi was in FBC Bank’s employ as an information officer based at the Kwekwe branch. In March 2008, she was appointed to the position of customer services officer (information), which was a managerial position.
At the time (2009) the charges arose, Taonezvi was still in this position. As customer services officer, one of her duties was to authorise teller transactions through use of physical vouchers.
This was meant to eliminate misposts. Blind authorisations were not permitted at all. It was during her tenure in office that two fraudulent transactions were done by one of the tellers on two different days.
These transactions were authorised by Taonezvi and were for R2 050 on February 20 2009 and US$5 000 on March 6 2009. It is these two transactions that gave rise to the charge preferred against Taonezvi.
FBC Bank’s main ground of appeal to the Labour Court was that the arbitrator made a grossly unreasonable decision on the facts in finding that Taonezvi was neither grossly incompetent nor inefficient.
It submitted that this finding was so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision.
In cases such as this one, where a part is attacking the arbitrator’s factual findings, it is not enough just to allege gross unreasonableness. It must also be shown that the misdirection on the facts was so unreasonable. (See Hama versus NRZ 1996 (1) ZLR 664 (SC), and Florence Chinyange versus Jaggers Wholesalers, SC 24/2004).
The arbitrator’s analysis and findings revealed that batch authorisation was the norm at Kwekwe branch and was very material in the resolution of this matter.
He found that since it was the teller, Believe Kundai Mazina, who perpetrated the fraud, there was no basis to charge Taonezvi. The arbitrator said it was FBC Bank who failed to put in place sound systems to detect fraud.
The bank did not have a teller maximum cash withdrawal limit and, as such, the fraud was a self-inflicted harm which FBC could not be heard to complain.
There was no nexus between Taonezvi and fraudster Kundai insofar as the fraud in the transactions in dispute was concerned. The arbitrator pointed out that Taonezvi could not therefore be penalised for the fraud, which was committed by another employee.
Taonezvi’s dismissal was ruled to be in contravention of Section 12 B (2) (a) of the Labour Act, hence it was unlawful. A scrutiny of the arbitrator’s finding vis-à-vis the evidence and submissions filed of record clearly shows that he seriously misdirected himself on the facts and came to a grossly unreasonable conclusion.
Firstly, it is common cause that Taonezvi was being charged — not with fraud — but with gross incompetence or inefficiency in the performance of his duties.
It is also common cause that it was as a result of Kundai’s fraudulent transactions that allegations against Taonezvi were raised.
Secondly, it is not in dispute that when Taonezvi was an information officer she used to act as customer services officer. In March 2008 she was promoted to the customer services officer position.
When the fraud in question was perpetrated, Taonezvi had been in this position for a year, and had been executing the duties of a customer services officer for over a year. It is also not in dispute that the customer services officer’s position was a managerial position. As such Taonezvi had a supervisory role over the tellers, Kundai included. In particular, it was one of her crucial duties to authorise teller transactions.
Her duties specifically prohibited blind authorisation, which she did not deny.
Taonezvi confirmed authorising the batches in question without having had sight of the vouchers.
The arbitrator in his findings stated and exonerated Taonezvi on the basis that batches’ authorisation was the norm at Kwekwe branch.
FBC Bank’s submissions on the facts that batch authorisation were the norm does not make it the correct procedure, especially in view of the specific prohibition.
In the disciplinary hearing, the bank gave some damning evidence, which was not challenged.
In response to the question on what batch authorisation was, FBC Bank stated the following.
“The computer gives the supervisor the option to authorise work entry by entry, or authorise as a batch. The first option is the one instructed supervisor to use because it gives them details of the transactions individually.
“Under the second option, all work is authorised at once without the supervisor viewing the transactions he/she would be authorising. Taonezvi was of the staff who helped the bank in looking transactions done by Kundai and it appeared she was aware of them.”
The Appeals Officer’s conclusion was that therefore Taonezvi had been entrusted with a more powerful user identification that enabled her to authorise. In this she was supposed to have rejected any suspicious transaction had she authorised item by item.
It was also FBC Bank’s evidence that had Taonezvi authorised the transactions item by item, the fraud could have been discovered earlier.
It was not the bank’s contention from the onset that Taonezvi ought to have stopped fraud.
With this evidence, the appeals officer was correct in finding her guilty of gross incompetence.
The arbitrator was wrong in his analysis of the evidence before him and in the process misdirected himself on the facts and came to a grossly unreasonable conclusion.
In the result, Labour Court senior president Ms Gladys Mhuri found herself at liberty to interfere with the arbitral award.
Accordingly, Ms Mhuri ordered that the award be set aside, and the appeals officer’s decision confirmed.