RBZ wins appeal  over leaked document In its ruling, the Labour Court took the view that the RBZ failed to prove the allegations against Makena and that the proceedings appeared to have been hurriedly done without giving thought to the requirement that Makena had to discharge the onus which was upon it.

Fidelis Munyoro-Chief Court Reporter

The Reserve Bank of Zimbabwe (RBZ) has won an appeal against the Labour Court decision to uphold the bank’s former economist’s appeal against dismissal from employment for leaking a “de-dollarisation roadmap” document before its approval by authorities four years ago.

 The court of lower ranking had ordered the reinstatement of former senior economist, Philton Makena, or alternatively, the payment of damages in the event that reinstatement was no longer possible.

The detailed de-dollarisation roadmap, which went viral on social media platforms, outlined key macro-economic policy measures to support the five year de-dollarisation strategy.

In its ruling, the Labour Court took the view that the RBZ failed to prove the allegations against Makena and that the proceedings appeared to have been hurriedly done without giving thought to the requirement that Makena had to discharge the onus which was upon it.

 As a result, the lower court quashed the central bank’s disciplinary committee ruling and ordered the reinstatement of Makena or that he be paid damages in lieu of reinstatement.

 This prompted the RBZ to approach the Supreme Court on appeal, seeking to reverse the lower court’s decision.

 In its appeal, the central bank asked the superior court to determine whether or not the lower court erred in finding that the RBZ had failed to prove that Makena was guilty of the act of misconduct. 

 A three-judge panel of Justices Tendai Uchena, Alfas Chitakunye and Joseph Musakwa unanimously allowed the central bank appeal with costs, finding that the RBZ was able to prove its case.  

This is so because Makena, being a managerial employee, breached confidence by sharing a confidential document to an unauthorised person. 

Hence, the Labour Court erred in its findings against the central bank.

 “The essential elements of the misconduct were established.  Resultantly, the appeal has merit and ought to succeed,” said Justice Musakwa, writing the judgment for the court. 

“It is accordingly ordered as follows:-The appeal be and is hereby allowed with costs.

“The judgment of the court a quo is set aside and substituted with the following: The appellant’s (Makena) appeal be and is hereby dismissed with costs.” In his judgment, Justice Musakwa said the fact that Makena was a principal economist of the RBZ was evidence that there was a deep-rooted level of trust between the parties to the extent that Makena was entrusted with confidential information of the bank.  “It was, therefore, the duty of the respondent(Makena) to safeguard the document in question to the best interests of the appellant(RBZ),” he said.

 

 “Thus, the argument by counsel (Makena’s lawyer) that the document in issue was not accessed by virtue of the respondent’s work and neither was it confidential cannot prevail.”

The nature of Makena’s position and the fact that he was working from home ‘on standby’, Justice Musakwa said, entails that he ought to have exercised due diligence when he received the document in question.

  “The misconduct by the respondent went to the root of the relationship between him and the appellant, therefore, the appellant had the unfettered discretion to dismiss the respondent.”

In the leaked de-dollarisation framework, the use of the US-dollar for domestic transactions was set to remain permissible in the next four years while a fixed and dual exchange system was to be adopted. 

After leaking the confidential document, Makena was arrested and charged with communicating official documents to unauthorised persons or alternatively contravening section 60 (1) of the RBZ Act, “Preservation of secrecy by bank employee”.

He was convicted and sentenced to perform 240 hours of community service. Makena successfully appealed against both conviction and sentence at the High Court.

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