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Mashudu Netsianda Senior Reporter
THE Supreme Court, in yet another judgment in favour of employers, yesterday quashed a ruling by the Labour court upholding a decision by an arbitrator to reinstate a former ZB Bank employee who was fired 11 years ago for exceeding his lending limit by authorising a withdrawal of Z$73 million on a client’s overdrawn bank account.
In the court papers, ZB Bank is the appellant while Saidi Mbalaka, the bank’s former manager at its Jason Moyo branch in Bulawayo, was cited as the respondent in the matter.
The judgment, which was delivered by Justice Elizabeth Gwaunza sitting with Justices Anne-Mary Gowora and Susan Mavangira during a Supreme Court circuit in Bulawayo, follows an appeal by ZB Bank contesting the Labour Court ruling to uphold an arbitral award in favour of Mbalaka.
Mbalaka had won his case both before an arbitrator and the Labour Court with an order compelling ZB Bank to either reinstate him or give him a retrenchment package.
However, the Supreme Court allowed ZB Bank’s appeal and ruled that the Labour Court misdirected itself by upholding the arbitrator’s award.
“In the circumstances the order of the Labour Court be and is hereby set aside and substituted with the appeal be and hereby allowed. The determination of the arbitrator is set aside and substituted with a determination of confirming the dismissal of the respondent,” ruled the judge.
The dispute arose in 2004 when Mbalaka, who was employed by ZB Bank for 22 years, was dismissed from his job on November 17 following a disciplinary hearing. The management accused Mbalaka of breaching his lending limit letter by authorising a withdrawal of Z$73 million on an account of a client which was already overdrawn by $10,690,875,88.
His lending limit was $10 million and according to the bank’s standing regulations, Mbalaka was supposed to first seek authority to withdraw the excess amount. The bank said by allowing the withdrawal, the financial institution was exposed to an $83 million loss.
Dissatisfied with the management’s decision to fire him, Mbalaka through his lawyers, approached a labour officer who referred the matter for compulsory arbitration.
The arbitrator gave an award that respondent should either be reinstated and be transferred to another branch with a written warning or be given a retrenchment package.
ZB Bank, through its lawyers, Gill, Godlonton and Gerrans Legal Practitioners, unsuccessfully appealed to the Labour Court where the arbitral award was upheld.
The bank appealed against the arbitral award on the grounds that the arbitrator misdirected herself on points of law.
The bank further argued that there were procedural irregularities in the manner in which the hearing was conducted.
“The arbitrator misdirected herself by failing to take into account the fact that at the time of the disciplinary hearing the respondent was serving a severe written warning,” said the bank’s lawyers.
ZB Bank, in its notice of appeal, argued that the Labour Court erred by upholding the arbitrator’s award when the court a quo had itself found quite correctly that the arbitrator had misdirected herself on a matter that went to the root of her decision.
“In the circumstances of the case, to uphold the arbitrator’s award was misdirection so gross that it could not have been committed by a reasonable tribunal having regard to the facts placed before it. The respondent had been charged with failure to comply with a standing instruction, gross incompetency and inefficiency and habitual and substantial neglect of his duties,” argued the bank.
The bank further argued that it had no choice but to dismiss him because of the respondent’s poor performance as his branch was rated among the worst five branches in terms of the highest number of overdrawn accounts.
Mbalaka was dismissed in terms of Statutory Instrument 130 of 2003 and Section 12B of the Labour Act Amendment 17 of 2002.
Mbalaka on the other hand contended that there was no misdirection at all on the part of the arbitrator and prayed for the dismissal of the appeal with costs.
“The arbitrator acted in terms of the law and her actions were not at all irregular. This appeal should be dismissed with costs,” he said.
Mbalaka further argued that the appeal contravenes Section 98 (10) of the Labour Act in that it is not an appeal on a point of law but on a point of fact.
The section reads: “An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator in terms of this section.”
Thousands of workers have so far been fired empty-handed following the Supreme Court judgment in the Zuva Petroleum case.
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