Anyadiegwu v Commission For Conciliation Mediation and Arbitration and Others (JR 22/23) [2025] ZALCJHB 373 (18 August 2025)

Case Note

Anyadiegwu v Commission for Conciliation, Mediation and Arbitration, Commissioner Tshakafa & Nedbank Group Ltd
Labour Court (Johannesburg) – Cithi AJ
Case No JR 22/23 – [2025] ZALCJHB ___
18 August 2025

Reportability

This judgment is marked “Reportable” because it revisits the proper approach to reviews of CCMA arbitration awards under section 145 of the Labour Relations Act 66 of 1995 after the repeal of the Labour Court Practice Manual. It clarifies when a review application will be deemed withdrawn for non-compliance with the erstwhile clause 11.2 and explains how the “reasonable decision-maker” test continues to apply notwithstanding procedural amendments introduced by the 2024 Labour Court Rules. The judgment is also significant for its detailed treatment of dishonesty by financial planners and the intersection between labour law and the Financial Advisory and Intermediary Services regulatory framework.

Cases Cited

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC)
Glencore Operations South Africa (Pty) Ltd v Taala and Others [2025] 6 BLLR 559 (LAC)
Makuleni v Standard Bank of SA (Pty) Ltd and Others (2023) 44 ILJ 1005 (LAC)
Head of Department of Education v Mofokeng and Others (2015) 36 ILJ 2802 (LAC)
South African Society of Bank Officials – The Finance Union and Another v Standard Bank Ltd and Others [2022] 10 BLLR 934 (LAC)
Mlombo v Standard Bank Financial Consultancy and Another (FSP30/2019) [2019] ZAFST 4 (23 December 2019)
Nedcor Bank Ltd v Frank and Others (2002) 23 ILJ 1243 (LAC)
Ex parte Brounsall (1778) Cowp 829

Legislation Cited

Labour Relations Act 66 of 1995
Financial Advisory and Intermediary Services Act 37 of 2002
General Code of Conduct for Authorised Financial Services Providers and Representatives (BN 80 of 2003)
Determination of Fit and Proper Requirements (BN 194 of 2017)
Rules Regulating the Conduct of the Proceedings of the Labour Court, 2024

Rules of Court Cited

Rule 7A(5), Rule 7A(6) and Rule 7A(8) of the 1996 Labour Court Rules (now Rules 37(9), 37(13)&(14) and 37(20) respectively under the 2024 Rules)

HEADNOTE

Summary

The applicant, a financial planner dismissed for dishonesty after charging prohibited repeat upfront fees to a client within a five-year period, sought to review and set aside a CCMA award that had upheld his dismissal. He argued that the review had not been properly prosecuted and that the commissioner had misconceived the evidence and ignored procedural unfairness. The Labour Court rejected a preliminary contention by Nedbank that the review was deemed withdrawn, found that the commissioner’s conclusions were supported by the record, and held that the award satisfied the Sidumo reasonableness test. The review was therefore dismissed with no order as to costs.

Key Issues

Whether the review application was automatically withdrawn for late filing of an incomplete record
Whether the commissioner committed reviewable errors in finding the dismissal procedurally and substantively fair
Application of the Sidumo “reasonable decision-maker” standard after repeal of the Practice Manual
Interaction between FAIS regulatory duties of honesty/integrity and labour-law concepts of misconduct
Appropriateness of dismissal for deceitful financial conduct in the banking sector

Held

The record filed on 10 May 2023 was adequate for adjudication; the matter was not deemed withdrawn.
The commissioner reasonably concluded that the applicant was aware the funds reinvested were recent withdrawals and that he intentionally levied impermissible fees.
Procedural complaint about removal from payroll was satisfactorily explained as an administrative error and did not taint the process.
Given the gravity of dishonesty in the financial services industry, dismissal was an appropriate sanction.
The award therefore falls within the band of decisions a reasonable commissioner could reach; the review was dismissed.

THE FACTS

Paschal Obinna Anyadiegwu had been employed by Nedbank as a financial planner since July 2007 and acted as a representative under the FAIS Act. His remuneration included a share of upfront fees earned when clients invested funds through him, but the Nedbank Financial Planning Business Handbook limited such fees to one charge of 3.45 percent on the same capital within five years.

Between 2017 and 2020 the planner advised Ms Thelma Padiri, a 66-year-old pensioner, to withdraw sizeable amounts from existing investment funds and almost immediately re-invest them in new Nedgroup products. He levied fresh upfront commissions on each “new” investment although the capital was merely recycled. The transactions contravened both the Handbook and the FAIS Code which demand honesty, fair treatment of clients and full disclosure of the source of funds.

Nedbank’s forensic investigator, Mr Herbst, traced the pattern of withdrawals and reinvestments and found handwritten notes indicating the applicant was “on leave” on the actual withdrawal days, suggesting a calculated attempt to distance himself from the cash-out instructions. The bank reimbursed the client R56 797 in unlawful fees, suspended the applicant, charged him with dishonesty and rule breaches, and dismissed him after a hearing on 14 April 2022. The CCMA subsequently upheld the dismissal.

THE ISSUES

The Labour Court first had to decide whether the review was properly before it in light of Nedbank’s point in limine that clause 11.2.3 of the (now repealed) Practice Manual rendered the matter withdrawn because a complete record was delivered outside 60 days. This raised the broader issue of how the new 2024 Rules impact pending reviews.

Substantively, the court had to determine whether the commissioner committed a gross irregularity, exceeded his powers or reached an unreasonable outcome when he found the dismissal fair. Central to that enquiry was whether the evidence established deliberate dishonesty, whether the applicant’s procedural grievances (non-payment of salary and alleged pre-emptive dismissal) had merit and whether dismissal was an appropriate sanction for the misconduct proved.

Finally, the court had to reconcile labour-law review principles with the financial-services regulatory framework governing the applicant’s conduct, considering the public-interest dimension emphasised in FAIS jurisprudence on debarment of dishonest representatives.

ANALYSIS

Cithi AJ accepted that the applicant filed the essential portions of the record timeously. The supplementary bundle containing Nedbank’s documents, although late, was not indispensable to determining the review and therefore the application could not be deemed withdrawn. The judge emphasised that clause 11.2 was designed to facilitate, not frustrate, expeditious justice and could not extinguish a review where a serviceable record was before court.

On the merits, the judgment painstakingly traced bank statements, withdrawal forms and Records of Advice. The court found that the applicant’s own evidence showed he had reviewed those very statements when drafting the ROAs, contradicting his claim of ignorance. His description of the reinvested capital as an “additional lump sum” and his implausible explanation that the client needed cash for a “son-in-law’s import business” (the client had no son-in-law) pointed irresistibly to conscious deceit.

Applying Sidumo, the court held that the commissioner considered relevant evidence, discarded irrelevancies and arrived at conclusions falling squarely within the range of reasonable outcomes. Alleged errors such as mis-stating the applicant’s preferred remedy were collateral and had no bearing on the fairness findings.

The court also aligned itself with LAC authority stressing that dishonesty in the financial sector strikes at the heart of the trust relationship, rendering continued employment intolerable. It drew from Financial Services Tribunal jurisprudence to underscore that removing dishonest advisors protects the investing public rather than punishes employees.

REMEDY

Having dismissed the jurisdictional objection, the Labour Court proceeded to dismiss the review application in its entirety. The commissioner’s award therefore stands, confirming the applicant’s dismissal and the listing of his name on the register of dishonest employees. Each party was ordered to pay its own costs, the court finding no compelling considerations of law or fairness warranting a costs order in a matter of this nature.

LEGAL PRINCIPLES

First, compliance with procedural deadlines for filing the record must be assessed pragmatically: where a functional record has been delivered, clause 11.2 of the repealed Practice Manual will not automatically extinguish a review (especially after the advent of the 2024 Rules).

Second, the Sidumo reasonableness standard remains the touchstone for all section 145 reviews: the Labour Court may intervene only where the arbitrator’s decision is one no reasonable decision-maker could reach, not merely where the court would have reached a different conclusion.

Third, employees in the financial-services environment owe an elevated duty of honesty and integrity to both their clients and employers. Charging impermissible fees through misrepresentation constitutes serious dishonesty justifying dismissal, as recognised in SASBO, Glencore and allied cases.

Fourth, a commissioner’s isolated misstatements or minor procedural slips will not vitiate an award absent a demonstrable causal link to an unreasonable outcome; review grounds must show materiality.

Finally, labour-law sanctions must align with wider regulatory obligations. Where the FAIS framework would require debarment for dishonest conduct, dismissal in the employment sphere is not punitive but protective of the public and the integrity of the financial system.