Mitigatory vs Aggravatory

factors for adjudicators to use their discretion judiciously.
Itai Karimazondo was employed by Barclays Bank of Zimbabwe Limited as a trade finance clerk.
His duties included safeguarding the bank’s monies, which were kept in a vault. Karimazondo was a co-custodian of the money, meaning he kept one set of keys to the vault. One Morris Dhewa kept the other set of keys. On March 12, 2010 Karimazondo was suspended on full pay pending investigations into the disappearance of US$127 315 and R25 000.
The investigations revealed that the money was stolen by Karimazondo’s co-custodian Morris Dhewa.
They also revealed that on the day of the theft, Karimazondo and Dhewa had opened the vault to deposit some money. Karimazondo had handed over his keys to Dhewa since he was holding cash. Dhewa opened the vault and closed after depositing the money.
Karimazondo did not check nor verify that the vault door was closed. Barclays Bank therefore concluded that Dhewa did not lock the vault after opening it and – hence managed to open the vault and steal some money. As a result, Karimazondo was charged and found guilty with having committed “any serious act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of contract.”
He was dismissed from employment and appealed to the grievances and disciplinary committee, which was deadlocked. The matter was referred to the Appeals Board of the National Employment Council for the Banking Undertaking.
The Appeals Board found that whilst Karimazondo was to be blamed to a certain extend, the branch manager was also negligent in authorising Dhewa to collect spare keys from Standard Chartered Bank.
The Appeals Board found that such spare keys were issued to open the vault. It also found that there was no evidence of connivance between Karimazondo and Dhewa. As a result Karimazondo was reinstated on a severe written warning. Aggrieved by the ruling, Barclays Bank noted an appeal with the Labour Court, arguing that after finding Karimazondo guilty as charged, the Appeals Board erred in failing to uphold the dismissal penalty. It further argued that the Appeals Board erred in placing emphasis on other lapses in control when evidence abound that the theft was made possible by Karimazondo’s leaving his vault keys in the custody of Dhewa. Barclays submitted that the Appeals Board erred in finding that spare keys were used to open the vault when in fact the compromise occurred before the upliftment of the keys from Standard Chartered Bank.
It further submitted that the Appeals Board found Karimazondo guilty as charged.
The Appeals Board found that: “Karimazondo is blameworthy in some respect. He made the serious error of judgment that Dhewa was going to lock up the vault using his own keys.
“Dhewa took advantage in the security lapse so presented.”
From the above, it is clear that the Appeals Board found Karimazondo guilty. However, the Appeals Board considered mitigatory factors that the theft was perpetrated by Dhewa and not Karimazondo, while there was no connivance between the two.
The other factor was that Dhewa used spare keys he got from Standard Chartered Bank to open the vault.
The Appeals Board even found that: “If management had maintained their security system intact and made a follow up on the keys from Standard Chartered Bank, this incident would not have occurred.”
From the above, the mitigatory factors of the case far outweighed the aggravatory factors and the appeals board used its discretion judiciously.
Barclays Bank’s argument that once the Appeals Board confirmed the conviction, it was bound to authenticate that the dismissal penalty is unsustainable.
Section 12 B (4) of the Labour Act enjoins the Appeals Board to also look at the mitigatory factors of the case before confirming the penalty of dismissal.
In the present case, the Appeals Board found that either Dhewa used the spare keys or had not locked the vault using Karimazondo’s keys.
The Appeals Board could not confirm Karimazondo’s dismissal when the possibility was very high that Dhewa had used the spare keys. There is no fault with the Appeals Board’s reasoning.
The investigations also found that the door leading to the vault was controlled by one key, which was kept by Dhewa. Karimazondo had no keys to that door.
The Appeals Board found that Barclays Bank management was to blame for giving Dhewa such advantage over Karimazondo. Barclays Bank also argued that Dhewa had access to the keys well after the theft had occurred, a submission that was not supported by evidence.
The evidence on file was that ever since the theft occurred, Dhewa had not been found, suggesting the spare keys were in his custody before the theft.
According to evidence, such spare keys were uplifted from Standard Chartered Bank, and Barclays Bank argument could not stand. The issue of penalty is one of discretion. The Labour Court can only interfere with the penalty if it found that the Court aquo (lower) fails to consider mitigatory factors, or if the penalty exceeded such as provided by the Code.
Barclays Bank referred to the case Standard Chartered Bank Zimbabwe Limited versus Chipiningu SC
In this case, a co-custodian handed over his keys to a co-custodian and failed to accompany the latter to the strong room. However, the case is distinguishable from the present where the co-custodian was present in the strong room, but handed over the keys because he was carrying cash.
Karimazondo was present with the co-custodian, hence his blameworthy was lower than that of Chipiningu in the Standard Chartered Bank case.
Thus, Barclays Bank failed to show any justification for interfering with the penalty provided for by the Appeals Board. Accordingly, Labour Court president Ms Loice Matanda-Moyo dismissed the appeal by Barclays Bank, and ordered the reinstatement of Karimazondo to his previous position without loss of salary or benefits.
Should reinstatement no longer be an option, Barclays Bank was ordered to pay agreed damages in lieu of reinstatement. Either party was free to approach the Labour Court for quantification of the damages.