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[2015] ZALCCT 26
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Absa Bank Limited v Rogers and Others (C31/2014) [2015] ZALCCT 26 (20 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C31/2014
DATE:
20 MARCH 2015
Not
Reportable
In
the matter between:
ABSA
BANK
LIMITED
...........................................................................................................
Applicant
And
PETER
ROGERS
.........................................................................................................
First
Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
......................................................................
Second
Respondent
STEPHEN BHANA
N.O
.............................................................................................
Third
Respondent
Date
heard: 25 November 2014
Delivered:
20 March 2015
JUDGMENT
RABKIN-NAICKER
J
[1] This is an
opposed application to review, set aside and substitute an
arbitration award under case number WECT9594-13. The third
respondent
(the Commissioner) made the following award:
“
70. The
applicant’s dismissal was substantively unfair.
71. The
respondent, ABSA Bank Limited, is hereby ordered to reinstate the
applicant into his previous position and under the same
terms and
conditions that prevailed at the time of his dismissal. This
reinstatement is effective from 25 May 2013 and is without
retrospective back pay. The respondent must further issue the
applicant with a final written warning effective for 12 months from
25 May 2013. Respondent is further ordered to reverse the applicant’s
debarment and remove his name from the REDDS listing.
72. The applicant
must report for duty by no later than 2 January 2014.”
[2] The first
respondent (Rogers) was employed by Absa as a private banker. In that
capacity, and in terms of the Financial Advisory
and Intermediary
Services Act, 37 of 2002 (FAIS), he was a FAIS representative. In
terms of that legislation a FAIS representative,
appointed by an
employer such as Absa, has to have personal qualities of honesty and
integrity and it is the bank’s duty
to ensure that their
representatives are fit and proper
[1]
.
Section 13(1)(b)(ii) of the FAIS provide that :”A person may
not act as a representative of an authorized financial services
provider, unless such person if debarred as contemplated in section
14, complies with the requirements determined by the Registrar,
after
consultation with the Advisory Committee, by notice in the Gazette,
for the reappointment of a debarred person as a representative.”
[3] The specific
grounds of misconduct for which Rogers was charged and dismissed were
as follows:
“
You
acted dishonestly by misrepresenting the signature of a client and/or
information regarding physical site visits and/or the
verification of
FICA documents.
The
above mentioned allegations are made with reference to the following
incidents(s)/ example(s):
1.
It has come to management’s attention that on 28 March 2013 you
misrepresented the signature of a client Dr MD Broodryk
on a CIF
verification document.
2.
It has come to management’s attention that on 3/4/2013 you sent
an e-mail to your colleague, Brian Jacobs, stating the
following
regarding Dr MD Broodryk: “I ascertained that his secretary
signed the original CIF…” On 19/4/2013
you sent an email
to your manager, Mathew Knowtsec, stating the following: “He
was not available to sign the CIF and I signed
the document alongside
the authorized by section.”
3.
It has come to management’s attention that you misrepresented
the information on the following physical site visit conducted
for
verification purposes document with regards to Dr MD Broodryk:
3.1
You completed the following on a physical site visit document for the
business address of Dr MD Broodryk: “I hereby confirm
that I
conducted a physical site visit on 27/4/2013” and “I have
consulted with Dr Michael Dudley Broodryk at the above
address and
verified the aforementioned address and/or trade name” which is
not true.
4.
It has come to management’s attention that you misrepresented
the information on the following physical site visit conducted
for
verification purposes documents with regard to Dr JT Butler:
4.1
You completed the following on a physical site visit document for the
residential address of Dr Butler: “I hereby confirm
that I
conducted a physical site visit on 27/3/2013” and “I have
consulted with James Thomas Butler at the above address
and verified
the aforementioned address” which is not true.
4.2
You completed the following on a physical site visit document for the
business address of Dr Butler: “I hereby confirm
that I
conducted a physical site visit on 27/4/2013” and “I
consulted with Dr James Thomas Butler at the above address
and
verified the aforementioned address” which is not true.
5.
It has come to management’s attention that on 2/4/2013 you sent
an e-mail to the Regional Manager: Sales Support, Albertus
Brand,
stating that Dr Butler had in fact signed a CIF form dated 28/3/2013.
On 17/4/2013 you stated in your email to your manager,
Mathew
Knoetsec, that you wrote the name of Dr Butler on the CIF form rather
than obtaining the client’s signature.
6.
It has come to management’s attention that on 28 March 2013 you
requested your colleague, Faheema Arnold, to verify the
identity
documents and utility bill of client, Dr MD Broodryk, as a true copy
of the original without her having sight of the original
documents.
7.
It has come to management’s attention that on 28 March 2013 you
requested your colleague, Faheema Arnold, to verify the
identity
document of client, Dr Carol Ann Thomas, as a true copy of the
original without her having sight of the original document.”
[4]
The Commissioner recorded the following in paragraph 62 of his award:
“
The
existence, validity of the rules, policies, procedures and
legislation are common cause. It is further not disputed that the
applicant had misrepresented signatures of two clients in initial
documentation, had lied about it in two instances, had not completed
the site visit forms properly and had asked a colleague to certify
without having the originals present. It is common cause that
his
actions had breached the rules and policies and legislation. The
applicant admitted and acknowledged that he was aware of all
these.”
[5] In his award,
the Commissioner refers to the
Sidumo
[2]
judgment
which he states: “requires that Commissioners must decide
whether dismissal was an appropriate sanction on
an objective
assessment of all relevant facts and circumstances presented at
arbitration.” This summary which is often used
in awards is
somewhat cryptic. The full quotation from the judgment is as follows:
“
[78]
In approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or
she will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee's challenge
to the
dismissal.
There
are other factors that will require consideration. For example, the
harm caused by the employee's conduct, whether additional
training
and instruction may result in the employee not repeating the
misconduct, the effect of dismissal on the employee and his
or her
long-service record. This is not an exhaustive list.
[79]
To sum up. In terms of the LRA, a commissioner has to determine
whether a dismissal is fair or not. A commissioner is not given
the
power to consider afresh what he or she would do, but simply to
decide whether what the employer did was fair. In arriving
at a
decision a commissioner is not required to defer to the decision of
the employer. What is required is that he or she must
consider all
relevant circumstances.”
[6] Essentially
the Commissioner decided that the dismissal was substantively unfair
based on the following:
6.1
That on the basis of the evidence of one expert witness,(which was
strongly contradicted by another), Rogers was severely stressed
at
the time he committed the offences and acted completely out of
character;
6.2
That Rogers was a first offender and had a long unblemished record;
6.3
That Rogers was remorseful and contrite and was not intentionally
dishonest when he misrepresented his clients’ signatures
as he
wanted to ensure their accounts were not frozen;
6.4
That his subsequent dishonest conduct (i.e. when he sought to cover
up his wrongdoing) was in a “phase of self –preservation”;
6.5
That, although inconsistency in the application of discipline was not
established, the company should have re-visited their
decision to
dismiss him when they had done so in respect of Faheema Arnold who
was put on a final written warning.
[7] It is evident
from the above issues on the basis of which the Commissioner made a
finding on substantive fairness and which
are elaborated on in
paragraphs 64-68 of the Award, that he simply did not apply his mind
to the importance of the rules breached,
the position of Rogers as a
senior private banker, the industry in which he worked and the
reasons the sanction of dismissal was
imposed. In short he does not
consider all relevant circumstances as required.
[8] I must agree
with the submissions of Mr. Leslie on behalf of Absa who argued that
the Commissioner completely failed to have
regard to or comprehend
the nature of its business i.e. as a bank dealing with the funds of
members of the public and operating
in a highly regulated statutory
environment. Furthermore that the Commissioner exceeded his powers in
purporting to reverse the
debarment of Rogers (by ordering his name
be removed from the REDDS list), which debarment was effected in
terms of the FAIS. The
latter issue was properly conceded by Mr
Rautenbach on behalf of Rogers.
[9] The
Commissioner, dealing with an unusual dispute in which the employee
was effectively pleading guilty, and in which the commission
of all
the offences was common cause, proceeded to consider the issue of the
fairness of the sanction without taking into account
the interests of
the employer, those of the persons the employer serves, as well as
the bank’s statutory obligations. This
led the Commissioner to
decide to reinstate Rogers which is, as averred in the founding
papers, a decision that a reasonable decision-maker
could not make.
[10] When only
mitigating factors occupy a decision maker’s mind in
considering the issue of the fairness of the sanction
of dismissal,
it is perhaps unsurprising that sympathy for an employee may become
overwhelming. But as the court in
Sidumo
clearly sets out a
consideration of the totality of circumstances must include the
importance of the rule that had been breached;
the reason the
employer imposed the sanction of dismissal; and the harm caused by
the employee's conduct, amongst other relevant
circumstances. In my
judgment when these issues are properly weighed
in casu,
there
can be no doubt that the sanction of dismissal was fair.
[10] Given the
full record before me, there is no reason to remit this matter for
hearing. I do not consider it apposite to order
costs against Rogers.
In view of all the above circumstances, I make the following order:
Order:
1. The award
under case number WECT9594 is hereby set aside and substituted as
follows:
1.1 “The
dismissal of Peter Rogers was substantively fair”.
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicants:
Adv. G. Leslie instructed by Cliffe Dekker Hofmeyr
First
Respondent: Adv. F. Rautenbach instructed by C & A Freidlander
[1]
Sections
8,13 and 14 of the FISA
[2]
Sidumo & another v Rustenburg Platinum Mines Ltd & others
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC)