Labour Court upholds ZABG head dismissal

Stella Nhari who was fired for resisting restructuring and new reporting structures.
On November 14 2007 the bank wrote a memo advising its senior management of a new reporting structure.
Part of the memo read: “The general manager (compliance) will now report through the head (legal and corporate services) whilst the general manager (operations and logistics) will report through the head of retail banking sector.
“The reporting structures do not affect the grade, salary and benefits of any incumbent.”
Nhari was unhappy with the new arrangement and sought clarification from the chief executive officer, who responded clarifying the position.
She was still not satisfied with the explanation and insisted on using the old reporting structures.
On January 18 2008, Nhari wrote to the CEO: “I am resubmitting my housing loan application form to you. You will be aware that I have always reported to you and asking me to submit the application through Head, Legal and Corporate Services is clearly improper.”
The CEO responded: “I am surprised and disappointed by the seemingly insubordinate attitude you have shown towards both me and the board.
“It appears to me that you have decided to disregard the new reporting structure adopted by the board. Your conduct is particularly disappointing because you persist in this attitude despite notification and several clarifications.”
However, Nhari continued to question the new structure and she wrote to the board expressing her grief particularly that she was no longer head of a department.
A lot of correspondence was exchanged between the parties regarding this matter, culminating in the bank writing Nhari two letters on June 6, 2008.
One of the letters raised allegations of misconduct against her, while the other letter was for suspension from work without salary or benefits in terms of the Labour Regulations (national employment code of conduct).
Thereafter a disciplinary hearing was conducted on June 20 2008. Nhari was advised through her lawyers to come and hear the verdict and make representations, but did not do so.
On July 14 2008 the respondent wrote to Nhari advising her of the verdict in which she was found guilty of first charge and not guilty on the second one. She was asked to come and address in mitigation but again failed to do so, and the penalty of dismissal was passed in her absence.
Nhari then sought a review of the decision to dismiss her at the Labour Court, questioning whether respondent was entitled to continue with the disciplinary proceedings after the expiry of 14 day period notwithstanding her protestations.
She also questioned whether the charge of misconduct and act or omission in consistent with the fulfillment of the express or implied conditions of her contract of employment was proved.
Labour Court president Ms Euna Makamure observed: “With due respect, on the question of mitigation the record shows that the applicant was advised to attend but she failed to do so.
“The applicant made a deliberate conscious decision not to be heard. It is unfortunate that she was unco-operative and she now lays blame on the hearing officer and that cannot be accepted.”
Ms Makamure said there was no explanation as to why she failed to attend and she cannot now turn around and blame the respondent for her unexplained absence at the time of mitigation.
After the appellant had failed to address the hearing officer in mitigation, the appeals officer proceeded to pronounce the penalty of dismissal with respect of the first charge.
The verdict statement advised the applicant to appeal to the appeals officer within a period of seven days but she did not do so and instead, appealed to the Labour Court.
Ms Makamure said as the record showed the application was overtaken by events by the disciplinary process and her subsequent dismissal.
She ruled that in view of the foregoing, she found that there was no merit in Nhari’s application and dismissed it.