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[2015] ZALCJHB 286
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Absa Bank Ltd v CCMA and Others (JR1619/13) [2015] ZALCJHB 286 (8 September 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO : JR 1619/13
DATE:
08 SEPTEMBER 2015
NOT
REPORTABLE
In
the matter between:
ABSA
BANK
LTD
.....................................................................................................................
Applicant
And
CCMA
............................................................................................................................
First
Respondent
COMMISSIONER
JOSIAS SELLO
MAAKE
......................................................
Second
Respondent
MIRANDA
NGWENYA
.............................................................................................
Third
Respondent
Heard:
20 August 2015
Delivered:
8 September 2015
Summary:
Review – LRA s 145 – misconduct – gross negligence
– ABSA v Naidu followed – dismissal fair
– award
reviewed and set aside.
Judgment
STEENKAMP
J
Introduction
[1]
The
applicant, ABSA, dismissed the third respondent, Ms Miranda Ngwenya,
for gross negligence arising from an incident on 17 August
2012. The
employee, a “platinum banker”, assisted a client with a
loan application. ABSA alleged that she acted outside
her mandate;
failed to secure his wife’s signature on the loan application;
misrepresented information; and failed to verify
his employment
details. ABSA dismissed her after a disciplinary inquiry. She
referred an unfair dismissal dispute to the CCMA.
Conciliation
failed. The arbitrator (the second respondent) found that the
employee had misrepresented that she had obtained the
signature of
the client’s spouse. It appears that he found that she did not
commit the first act of misconduct complained
of, relating to a lack
of mandate (although he contradicts himself in the award by saying:
“Now having confirmed the convictions
on all four charges, the
question then arises whether or not the dismissal sanction was
substantively unfair.”)
[1]
[2]
The arbitrator nevertheless found that “a
sanction short of dismissal would have been in order”. He found
the employee’s
dismissal to have been substantively unfair and
ordered ABSA to reinstate her, together with a final written warning
valid for
six months, and to pay her four months’ salary as
backpay. The limited backpay had the effect that she forfeited six
months’
salary.
[3]
ABSA seeks to have the award on sanction
reviewed and set aside. It argues that the dismissal was fair.
Background
facts
[4]
The employee was a “platinum banker”
in Polokwane. She interacted with the bank’s clients on various
transactions,
including the issuing of loans. On 17 August 2012, she
processed a loan application for R70 000 for a client, Mr L I
Motimele.
The bank alleged that she was grossly negligent for the
following reasons:
4.1
“
You acted outside your mandate in
that you processed the loan application and the payments thereof of
R70 000 outside your
mandate and without necessary override and
authorisation from the mandated official.”
4.2
“
You failed to secure the signature
of [Mr Motimele’s] wife, fully aware that the client is married
in community of property
and therefore the wife should have signed
before the payment of the loan amount of R70 000.”
4.3
“
You
misrepresented information on the ROA
[2]
,
in that you annotated that the client’s spouse had signed,
whereas the client’s spouse had not signed on the said
date.”
4.4
“
You failed to verify [Mr Matimele’s]
employment details.”
“
Your
abovementioned conduct had the potential to expose ABSA to loss,
risks and litigation.”
[5]
At a disciplinary hearing, it was found
that the employee had committed the misconduct outlined above. She
was dismissed and referred
an unfair dismissal dispute to the CCMA.
It came before the third respondent for arbitration.
The
award
[6]
For ABSA, the arbitrator heard evidence
from the employee’s previous supervisor, Mary Refiloe Maboa,
whom ABSA had also dismissed
for falsifying information on a ROA
document. She did not follow the prescribed procedure when she
handled a revolving loan for
a client. The Lobokgomo branch manager,
Stephinah Modiba, also testified for ABSA. The employee, Ms Ngwenya
(represented by her
attorney of record and by counsel, Adv MJ
Manyelo) led her own evidence and called two further witnesses: the
client, Mr Lekgoba
Isaac Motimele; and another former employee, Betty
Maja, who was a personal banker at the same branch and whom the bank
had also
dismissed.
[7]
The arbitrator considered Ms Maboa to be
the chief witness for ABSA. Ms Modiba essentially testified on
procedural issues, specifically
the investigation into the employee’s
conduct. The arbitrator found the dismissal to have been procedurally
fair.
[8]
Turning to substantive fairness, the
arbitrator found that the bank had not proven that the employee had
acted without a mandate;
and thus found that dismissal on this ground
was not for a fair reason.
[9]
On the second allegation of misconduct –
that of not obtaining the signature of the client’s wife –
the arbitrator
agreed with the bank. The employee continued to deny
that she had committed the misconduct; but the arbitrator found her
explanation
to be “far-fetched and highly improbable”.
Her explanation was found to fly in the face of her own clear
annotation
on the ROA that Mrs Motimele had signed the loan
application form. That was blatantly false.
[10]
The third element of misconduct was an
allegation of misrepresentation as the employee had recorded on the
ROA that Mrs Motimele
had signed the loan application document on 17
August 2012, when she had not done so. The arbitrator found that the
employee’s
version was untrue and therefore a
misrepresentation.
[11]
The fourth element was the employee’s
failure to verify the client’s employment details. The employee
alleged that it
was unnecessary; the arbitrator found the contrary.
[12]
Although the arbitrator had found that the
bank had proven three of the four allegations of misconduct, he
nevertheless recorded:
“
Now
having confirmed the convictions on all four charges, the question
then arises whether or not the dismissal sanction was substantively
unfair”.
[13]
Nothing much turns on this. Everyone
accepted that the arbitrator actually decided on the fairness of the
sanction on the basis
that three of the allegations had been proven,
all arising from the same irregular handling of the loan application.
The issue
in contention here is the arbitrator’s finding on
sanction.
[14]
The arbitrator found:
“
[I]t
appears to me hat to some extent, the charges constitute an undue
splitting of charges, for the acts complained of in the charges,
constituted a single transaction committed with a single guilty mind,
in view of the fact that they are closely connected in terms
of time,
place and circumstance. In my considered view, a single charge
containing all the allegations which were split into several
charges,
should have been preferred with the result that the said [
sic
]
chairperson would have been in a vintage [
sic
]
position to evaluation [
sic
]
what would have been an appropriate sanction on that single charge.
The reality of the matter is that the said chairperson had
failed to
avert an undue multiplicity of convictions, a fact I consider to have
influenced the dismissal sanction and which I accordingly
consider a
harsh sanction”.
[15]
The main reason why the arbitrator
considered dismissal to be a harsh sanction clearly stems directly
from his criminal law exposition
on the “splitting of charges”
– hence his use of the word “accordingly”.
[16]
He goes further to say that, “had the
aforegoing not occurred”, a sanction short of dismissal “would
have been
in order”, taking into account the following:
“
[The
employee’s] considerable length of service, her squeaky clean
disciplinary record, the rallying homage and tribute heaped
upon her
by Maja on her top performance for the [bank] and the fact that the
[bank] had incurred no financial harm.”
[17]
The arbitrator found dismissal to have been
unfair and ordered the bank to reinstate the employee with a final
written warning valid
for six months. He ordered backpay for four
months instead of the ten months that had elapsed since her
dismissal.
Grounds
of review
[18]
Mr
Jones
,
on behalf of ABSA, argued that the commissioner’s decision on
sanction fell outside of the range of reasonable decisions
that a
reasonable commissioner could reach on the evidence before him and
the accepted fact of the employee’s dishonest and
gross
misconduct. Much of his argument relied strongly on the recent
decision of the LAC, involving the same employer, in
ABSA
Bank Ltd v Naidu
.
[3]
Evaluation
/ Analysis
[19]
In most cases, the Court would be reluctant
to interfere with an arbitrator’s decision on sanction in a
review, as opposed
to an appeal – moreso when the arbitrator
had considered a number of factors when deciding that dismissal was
too harsh a
sanction, and when his substituted award contained a
punitive element, comprising a final written warning and, in effect,
six months’
suspension without pay.
[20]
This
Court is, however, bound by the authority of the LAC in
Naidu
,
and the similarity between the two cases is striking. In that case,
the employee performed a transaction without the necessary
signature
and was charged with dishonesty because she maintained that she had
obtained the client’s signature when
she did not. Even
though she had notified her superiors of her intended conduct and had
been remorseful when the bank took action
against her, the Labour
Appeal Court held that the Commissioner’s finding that
dismissal was not the appropriate sanction
was not a decision that
fell within the range of decisions which a reasonable decision-maker
could have made. The court noted:
[4]
“
She
was clearly aware that her misconduct involved dishonesty and that,
in terms of the appellant’s disciplinary code, summary
dismissal was the appropriate sanction prescribed for such type of
misconduct. Of course, it is accepted that not every misconduct
offence involving dishonesty warrants a sanction of dismissal. There
are varying degrees of dishonesty and, therefore, each case
is to be
determined on the basis of its own facts whether a decision to
dismiss the offending employee is a reasonable one. Generally,
a
sanction of dismissal is justifiable and, indeed, warranted where the
dishonesty involved is of a gross nature. In
Toyota
SA Motors (Pty) Ltd v Radebe & others
[5]
this court held as follows:
‘
Although
a long period of service of an employee will usually be a mitigating
factor where such employee is guilty of misconduct,
the point must be
made that there are certain acts of misconduct which are of such a
serious nature that no length of service can
save an employee who is
guilty of them from dismissal. To my mind one such clear act of
misconduct is gross dishonesty. It appears
to me that the
commissioner did not appreciate this fundamental point. I hold that
the first respondent’s length of service
in the circumstances
of this case was of no relevance and could not provide, and should
not have provided, any mitigation for misconduct
of such a serious
nature as gross dishonesty. I am not saying that there can be no
sufficient mitigating factors in cases of dishonesty
nor am I saying
dismissal is always an appropriate sanction for misconduct involving
dishonesty. In my judgement the moment dishonesty
is accepted in a
particular case is being of such a serious degree is to be described
as gross, then dismissal is an appropriate
and fair sanction.’”
[21]
The
LAC in
Naidu
[6]
went on to cite with approval the dictum in
De
Beers Consolidated Mines Ltd v CCMA
[7]
that
‘the seriousness of dishonesty – i.e. whether it can be
stigmatised as gross or not – depends not only,
or even mainly,
on the act of dishonesty itself but on the way in which it impacts on
the employer’s business’. Considering
the nature of the
bank’s business, the LAC found that there could be no doubt
that the employees dishonesty severely adversely
impacted on its
business.
[22]
Very similar considerations apply in this
case. The employee occupied a senior position in the bank. She
interacted with clients
and was in the position to approve loans for
them. She concluded serious financial transactions involving large
sums of money on
behalf of the bank with those clients. It was
obvious that the bank would have placed a high level of trust and
confidence in her.
Her misrepresentation constituted a breach of
their fiduciary duty and a breakdown in her trust relationship with
the bank.
Conclusion
[23]
It was common cause that the employee had
to obtain the signature of Mr Motimele’s wife before the loan
could be approved,
as they were married in community of property. The
employee did not do so. Yet she falsely claimed on the FAIS record of
advice
that Mrs Motimele had signed. It was a blatant
misrepresentation. It put the bank at risk and was a breach of the
employee’s
fiduciary duties. She showed no remorse and even at
the arbitration maintained her false version of events. In those
circumstances,
the employment relationship had irretrievably broken
down. The employer’s decision to dismiss her was fair. As was
the case
in
Naidu
,
the arbitrator’s award to the contrary in this case is not one
that a reasonable commissioner could have made. The award
must be set
aside and replaced with one that the dismissal of the employee was
fair.
[24]
With regard to costs, I take into account
that the employee had an award in her favour. She had little choice
but to incur legal
costs of her own in order to defend it. In my
view, it would not be fair to order her to pay the bank’s costs
in the review
application.
Order
[25]
I therefore order that:
25.1
The arbitration award by the second
respondent under case number LP 9033-12 of 6 August 2013 is reviewed
and set aside.
25.2
The award is substituted with an award that
the dismissal of the employee, Ms Miranda Ngwenya, was substantively
and procedurally
fair.
25.3
There is no order as to costs.
Steenkamp
J
APPEARANCES
APPLICANT:
Jonathan Jones of Norton Rose Fulbright.
THIRD
RESPONDENT: PMW Botha
Instructed
by M G Phatudi Inc.
[1]
The criminal language of “convictions” on “charges”
of misconduct is that of the parties and the arbitrator.
By
replicating it the Court does not condone the unnecessary and
inappropriate use of such language in a workplace context.
[2]
Record of Advice.
[3]
(2015) 36
ILJ
602 (LAC).
[4]
At para [52].
[5]
(2000) 21
ILJ
340 (LAC).
[6]
Para [53].
[7]
(2000) 21
ILJ
1051 (LAC) at 1058 I-J.