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Fidelis Munyoro Chief Court Reporter
NMB Bank has failed in its bid to produce new evidence in the appeal by five top executives fired more than a decade ago for improper conduct and the arbitrator hearing the appeal by the five is now limited to what was present at the original disciplinary hearing.
The bank sought to bring the fresh evidence against Mr Tawanda Mushaya, Mr Watson Chakawa, Mr Simon Ngirande, Mr Onias Dhadhai and Mr Learnmore Chatima who were fired in 2007 after having undergone a disciplinary hearing for theft and fraud.
The five successfully challenged an attempt by the bank to give the arbitrator additional evidence. NMB wanted to hand in documents that were in existence at the time of the disciplinary hearing, but did not use the evidence, to fortify its case when the hearing took place.
The arbitrator, Labour Court, High Court and Supreme Court have all agreed that no new evidence can be submitted, because the arbitrator is hearing an appeal against a decision that the bank won, not making the original decision.
The arbitrator’s prompted the bank to appeal against that arbitration decision at the Labour Court, which upheld the arbitrator, ruling that the proceedings before the arbitration constituted an appeal and that the arbitrator was correct in confining himself to the record of proceedings and not making a decision over whether the dismissal was fair.
Dissatisfied with the decision, NMB went to the High Court, which backed the Labour Court, and so the bank appealed to the Supreme Court.
However, three judges of the Supreme Court upheld the findings of the lower court noting that the court could not interfere in unterminated proceedings that were before the lowest tribunal, in this case the arbitrator.
But it has taken 12 years to reach the stage where the appeal to the arbitrator can now be heard.
Writing the Supreme Court judgment, Justice Paddington Garwe found that that the arbitrator properly dismissed the NMB Bank application to adduce further evidence in October 2009.
The appeal to the Labour Court was dismissed in March 2016.
Twelve years down the road, Justice Garwe noted the real contention which remains unresolved between the parties was whether or not the five were unfairly dismissed.
The case is a classic example of the deleterious effect that interference in unterminated proceedings can have in on going proceedings, said Justice Garwe noting that after 12 years and, in light of this appeal, the arbitrator will now be asked to proceed with the arbitration that was interrupted by the noting of an appeal by the Bank in 2009.
Justice Garwe said NMB’s request to adduce further evidence at arbitration could not have succeed on the basis that as the employer, the bank had been successful in the original disciplinary proceedings.
In this regard, the five had been found guilty of misconduct and fired from employment hence the bank could not properly apply to adduce evidence in a matter which had been concluded in its favour.
The judge said the Labour Court was correct in upholding the arbitration decision dismissing the application to adduce fresh evidence.
“No new evidence was necessary to determine whether, on the evidence led before the disciplinary committee, the respondents had been unfairly dismissed from employment,” said Justice Garwe dismissing the appeal with costs of suit.
The bank insisted that the dismissal was appropriate, claiming that it had obtained fresh evidence against them, which made them ineligible to re-join the bank.
It claimed that the arbitrator erred on point of law in failing to permit the production of the new documents which the bank wanted to avail. NMB also appealed against the ruling at the High Court which upheld the Labour Court ruling.
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