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[2017] ZALCJHB 388
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Francke v Siemens (Pty) Limited (JS269/14) [2017] ZALCJHB 388 (26 October 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JS269/14
In
the matter between:
GREGOR
FRANKE
Applicant
and
SIEMENS
(PTY)
LIMITED
Respondent
Heard:
13 – 17 February 2017
Delivered:
26 October 2017
JUDGMENT
GUSH
J.
Introduction
[1]
In
this matter, the applicant, who was dismissed by the respondent, his
erstwhile employer, applies to have his dismissal declared
unfair and
that he be reinstated retrospectively to the date of his dismissal.
[2]
The
respondent is Siemens AG, a global company based in Germany, with
offices across the world. One of them was in South Africa
which was
responsible for the Africa region as a whole. One of the offices in
the Africa region was Nigeria. The Nigerian
had a reporting
line to the South African office.
[3]
The
applicant came to work in South Africa in January 2010 in the
Johannesburg office. He was subsequently assigned or delegated
to
work in the Nigerian office in or about May of 2011. He initially
went to Nigeria as a Project Manager and then subsequently
became
Country Sector Controller.
[4]
The
applicant began his employment with the respondent in 1986 as a
Commercial Clerk and an Apprentice Industrial Trader. During
the
course of his employment, he was posted to Nigeria in 2004, Iran,
Dubai and Indonesia in 2005, Morocco in 2007, Norway in 2008,
Angola
and finally South Africa in 2010. During this period, he essentially
performed the role of Project Manager.
[5]
When
the applicant was sent to Nigeria
on
1 June 2011, it was as the respondent’s Sector Country
Controller to the energy sector in Nigeria and included certain
project management tasks in Nigeria. Shortly after his appointment,
with
effect from 5 December 2011, the applicant was appointed Acting Chief
Financial Officer for Nigeria.
In
that capacity as the Chief Financial Officer (CFO), certain
responsibilities were imposed on him. These responsibilities included
the responsibility for reporting on the respondent’s accounting
programme called Finavigate.
[6]
It
was the appointment as acting CFO that led to the applicant being
dismissed.
[7]
Following
his dismissal, the applicant appealed against the decision which
appeal was dismissed.
[8]
The
applicant dissatisfied with his dismissal then referred a dispute
concerning his dismissal to the Bargaining Council.
[9]
The
applicant followed this referral by an application in terms of
section 191 of the Labour Relations Act
[1]
(LRA) for the dispute to be referred to the Labour Court for
adjudication. As will become clear from the evidence, this
application
satisfied none of the criteria the Director of the
Commission for Conciliation, Mediation and Arbitration (CCMA) was
required to
consider. Despite this, the Director referred the dispute
to this Court in terms of section 191(6) and (7) of the LRA.
[10]
The
respondent was complicit in having this referral granted by expressly
not objecting to the applicant’s application for
the matter to
be heard by this Court.
[11]
All the
applicant achieved by making such an application was to inordinately
delay the hearing of the matter.
[12]
The
matter was further delayed when a dispute arose between the applicant
and the respondent regarding the report on the investigation
of the
circumstances surrounding the issue the respondent had undertaken,
dated 13 March 2013, some months before the disciplinary
enquiry.
This report had not been presented to the disciplinary enquiry and
when discovered during the course of the exchange of
pleadings before
this Court, it had been offered to the applicant in a substantially
redacted form. This led to an application
being brought by the
applicant for the unredacted form to be made available. The outcome
of the application was an order that the
report, unredacted, be made
available to the applicant. This report is now part of the record.
[2]
[13]
In
essence, those parts of the forensic report that the respondent was
reluctant to reveal concerned the disciplinary action taken
against
those employees who were involved in the matter that had led to the
applicant’s dismissal, a relevant consideration
given the fact
that the applicant complained that the respondent had not been
consistent in disciplining the employees involved
in the matter. It
is also relevant that the report contained recommendations regarding
sanction.
Factual Background
[14]
On 26 June
2013, the applicant was charged with certain acts of misconduct and
following the disciplinary enquiry that took place
on 28 June 2, 5,
8, 9, 10 July 2013, the applicant was dismissed.
[3]
[15]
The
charges against the applicant were:
CHARGE
1
Breach
of CF Circular No. 12/2008 alternatively gross dishonesty,
alternatively dereliction of your duties as Acting CFO, Nigeria,
during the period December 2011 to November 2012 in that you:
1. failed to ensure that
bank account […] (Zenith USD account) as well as all
information regarding the Zenith USD account,
a list of persons with
the power to release funds and other authorised signatories and
contact persons in respect of the Zenith
USD account were recorded in
Finavigate;.
1.2. authorised the
following two payments from the Zenith USD account in circumstances
where this account was not registered with
Finavitage:
‘
31 August 2012 recipient
Nigeria LMG Limited amount US$6 000,00 authorised by 1. Tunde
Orija and 2. Gregor Franke;
17 September 2012 recipient
Withholding Tax-Federal Government of Nigeria, amount US$131 262,00
authorised by 1. Tunde Orija
and 2. Gregor Franke’
;
1.3 attested on the three
separate occasions, namely the 1
st
,2
nd
and 3
rd
quarter of 2012 that all bank accounts are accurately and completely
registered in Finavigate and that all payments are executed
via
Finavigate, unless technically not possible, legally or contractually
restricted, despite being aware during each of these
quarters that
the Zenith USD account, a list of persons with the power to release
funds and other authorised signatories and contact
persons in respect
of the Zenith USD account were not recorded in Finavigate.
1.4 Breach of the Siemens
Business Conduct Guidelines in that in respect of the Zenith USD
account you failed to comply with Chapter
E.1 (Records and Financial
Integrity) in that you failed to maintain processes and controls so
that transactions are executed in
accordance with the company`s
management authorisations.
[4]
[16]
At the conclusion of the disciplinary enquiry, the chairperson
prepared a detailed judgment or record of the disciplinary
enquiry.
[5]
The chairperson in
her report makes specific mention of the following issues raised by
the applicant in his defence:
‘
1 Shortly put, [the applicant]
admits to doing all the employer said he did regarding the
attestations and the payments, but he
wants me to take into account
the range of circumstances and experiences and explain what he did,
and how they reflect that, at
the time of the alleged transgressions,
he was not aware of breaking the rules and never acted in a negligent
way.
2
[The applicant] spoke a lot
about the tough circumstances he faced in Nigeria, the level of
complexity found with regard to compliance,
some personally
threatening situations he had faced as well as his initial reluctance
to go there. He convincingly argued that
it was hard to find a CFO
and explain the difficulties left behind when the previous CFO left
under a cloud. As [applicant] said
himself the previous CFO left the
company a “disaster’’.
3
The [respondent] did not see
the above is any justification for [applicant’s] actions except
also to agree that Nigeria presents
a challenge in respect of
employees and processes. … that [applicant] should have been
even more diligent.
4
[The applicant] lastly
raised the issue of inconsistency in his evidence. This is very
relevant as consistency is a core principle
in labour relations. He
raised the two types of inconsistency that the courts have
distinguished. Historical inconsistency goes
to whether an employer
has imposed a similar sanction for the same contravention over time.
[The applicant] identified that the
account should be discovered by
the two previous CFOs in Nigeria. … Next [the applicant]
raised contemporaneous inconsistency
which occurs when two or more
employees engaged in the same or similar conduct at roughly the same
time, but only one, or some
of them are disciplined or receive
different penalties. Unfortunately, this is hard to judge at this
stage as there are on-going
investigations. The principle of
consistency with any other people also charged in matters related to
this one will have to be
borne in mind by the company.’
[6]
The
chairperson of the enquiry found:
‘
Before continuing I would also
like to comment on my impression of [the applicant] comes across as a
loyal employee who clearly
has a long history with the company. He
appears to have done a lot of good, and is a hard worker. He is
clearly in many ways an
asset to the company and has approached his
work with dedication and passion. He did not go out of his way to
harm the company
or wilfully placed in jeopardy. That is why his
conduct in regard to the charges brought against him is hard to
understand. His
approach (understandably) has been to minimize a
contravention’s and the risk to an impact on the company. In
addition, he
is not demonstrated any remorse. The entire party
(understandably) has taken the opposite position in this argued that
no “slippage”,
so to speak, can be condoned in respect to
the duties responsibilities of a CFO all acting CFO
.’
and
‘
[the applicant] guilty on a
balance of probabilities … of the offences as charged …
I would not describe what happened
as “gross dishonesty”
but rather “dereliction of duties as an acting CFO. If
the company believed that
there been gross dishonesty, I’m
assuming they would have suspended Mr. Franke and charged him with
contravening the code
of ethics.’
[17]
The chairperson concluded with a recommendation that the applicant be
dismissed with notice. Surprisingly, although the chairperson
of the
disciplinary enquiry having apparently considered what issues are
clearly important to an appropriate sanction, simply without
any
further explanation recommends dismissal.
[18]
The applicant was notified of his dismissal on 16 September 2014 and
invited to appeal against the decision. The applicant
submitted
written submissions in respect of his appeal.
[7]
The appeal was submitted to the Chief Executive Officer on 30
September 2013 for review and on 1 October 2013 the respondent’s
head of Human Resources advised the applicant that his appeal had
been dismissed.
[8]
[19]
With regard to the issue in dispute and what the Court was required
to decide, it is pertinent to note that
prior
to the matter commencing, I issued a directive that the parties were
to file a consolidated pre-trial minute in compliance
with the rules
of this Court. What followed was that the applicant’s filed a
63-page document purporting to be a consolidated
pre-trial minute.
This document not only in no way resembled a proper pre-trial minute
it certainly did not amount to a pre-trial
minute. It was clear that
the parties had made no effort whatsoever to comply with the
directive.
[20]
At the commencement of the hearing, parties were instructed to comply
with the directive before the matter commenced. The resulting
seven-page document was filed and sets out the charges, the
applicant’s version and the respondent’s version
regarding
the charges.
[9]
Although this pre-trial minute does not record “the issues that
the court is required to decide”
[10]
it was clear from both parties opening statements what the issues
were.
[21]
As far as the issue the Court was required to decide is concerned, Mr
Ngcukaitobi
who appeared for the respondent conceded
that
the dispute was limited to the question of whether the applicant’s
conduct amounted to dishonest conduct or grossly negligent
conduct
and that the basic facts seem to be undisputed.
[11]
Ms
Frank who appeared for the applicant likewise confirmed that it was
common cause that the applicant was found guilty of the actions
set
out in the charge sheet and that the issue to be decided was whether
the applicant’s conduct amounted to dishonest conduct,
specifically whether it amounted to
“
gross
dishonesty, or alternatively grossly negligent conduct”.
[22]
Arising from the above, the issue to be decided was whether the
sanction of dismissal was fair in particular, whether the applicant’s
misconduct justified his dismissal
and
if not what was an appropriate sanction. As the dismissal of the
applicant was admitted the respondent bore the
onus
of proving that the dismissal was substantively fair.
Evidence
[23]
As the facts concerning the applicant’s conduct are largely
common cause, the evidence is briefly summarised hereunder.
Respondent’s
version
[24]
The respondent called Ms Dall'Omo as its only witness. Ms Dall'Omo
testified that she was currently the CEO of Siemens, Southern
and
Eastern Africa, and that she had been working for Siemens for about
30 years. She gave a historical background about the company
and how,
in 2006, a compliance investigation was conducted as the company had
been utilising unauthorised bank accounts. What was
discovered in
that period was that the six countries which had been affected by
that investigation included Nigeria. The issues
related to bank
accounts, cash payments and unauthorised transactions. In response
thereto a decision was taken to centralise bank
accounts in 2007 and
introduce the Finavigate system.
[25]
Shortly after the applicant had been appointed as acting CFO, he had
together with all the other signatories to the respondent’s
Nigerian bank accounts signed a new mandate card in respect of the
bank accounts requiring more than one signatory. The six designated
signatories included all the respondent’s Senior Managers in
Nigeria including the Accountant Mr Orija.
[26]
Finavigate
is an accounting system that Siemens adopted in order to mitigate
risk, particularly concerning the registration of bank
accounts as
well as the payments flowing from those bank accounts,
dating
all the way from 2006 when Siemens globally became the subject of an
investigation by authorities in the US and in Europe
and subsequently
was fined substantial amounts of millions of US dollars. Flowing from
those fines, Siemens adopted Finavigate
as one of the strategies to
mitigate risk. The primary function of a CFO in relation to
Finavigate was to ensure that all bank
accounts that are in a
particular country are registered on the system. It is an electronic
system.
[27]
One of the findings that had been made in the 2006 investigation was
that there were payments made, either in the form of bribes
or from
secret accounts that the global office had no knowledge of or had no
access to. So, Finavigate then became the system that
the company
adopted in order to mitigate its risks. The CFO was responsible to
ensure that all bank accounts in a particular office
are registered.
[28]
The charge although framed in three parts related to the fact that in
2007 when the Zenith Bank account had been deregistered
from
Finavigate it had not been closed. This situation had prevailed
through the reports and certifications of the successive CFO’s
until the appointment of the applicant in 2011 and the discovery of
the account in 2012. The three parts to the charge involved:
28.1 As the CFO in
Nigeria, the applicant failed to ensure that bank account held with
Zenith Bank was registered on the Finavigate
system.
28.2 The second aspect of
Finavigate related to payments. Payments could not be made from bank
accounts which were not uploaded
or registered on the Finavigate
system. With regards to part 1.2, there are two payments that were
made in August 2012 and in September
2012 authorised by the applicant
in his capacity as the CFO. Those payments were made from the same
bank account that he failed
to ensure that it was registered on the
Finavigate system.
28.3 Thirdly, part 1.3
concerned the requirement that the CFO as part of his
responsibilities, had to complete a so-called attestation
every
quarter. The CFO was required to confirm that,
inter alia
, the
financial records of the company are in order. Specifically, one
aspect of the attestation concerns whether all the bank accounts
were
accurately recorded and registered on Finavigate
[29]
On three occasions, for the quarter ending December 2011, for the
quarter ending March 2012 and for the quarter ending in June
2012,
the applicant’s attestations were incorrect. The applicant had
confirmed that everything was in order in relation to
the
registration of these bank accounts. It transpired, after an
investigation that a certain account, the Zenith Bank account,
had
not been registered. It is important to note that this account had
been recorded in Finavigate as having been closed in 2007
although it
had not. The attestations submitted after 2007 had all failed to
record the Zenith Bank account.
These
were the issues that led to the applicant being charged with
misconduct.
[30]
Ms Dall'Omo further testified that not all of the bank accounts
listed on the resolution that the six Senior Managers had signed
were
registered under the Finavigate system as they should have been. Ms
Dall'Omo concluded that of all the signatories and the
CFO ought to
have been aware that the Zenith Bank account had been removed from
the register in 2007 but had not been closed and
that therein lay his
misconduct. Although it was the duty of Mr Orija to report to the CFO
and provide him with the information,
the reconciliation thereof was
the duty of the CFO, and that the respondent relied on the CFO to
ensure proper oversight. When
the non-registration of the Zenith Bank
account was discovered, the respondent conducted a forensic
investigation into the circumstances
surrounding the existence of the
Zenith Bank account. The report (referred to above) is included in
the bundle of documents.
[12]
[31]
Ms Dall’Omo testified that the investigation report was a
binding document and that the respondent was bound by its
recommendations and the sanctions outlined therein. Therefor there
was a need to ensure as management that the recommendations were
executed. Despite this, in her evidence in chief when asked about the
appropriateness of the sanction of dismissal, Dall’Omo
said:
‘
Well,
if he would have admitted at a certain stage that he did something
wrong, we definitely would have looked at it in a different
way. But
after the compliance investigation it was clear that Mr Franke was of
the opinion that he did the things right. And that
would have been to
us in the company a major breakdown in the trust relationship.’
[13]
[32]
During cross-examination by the applicant’s counsel, Ms. Frank,
Ms
Dall’Omo
insisted that regardless of the evidence and the contents of the
report she regarded the applicant's misconduct as
constituting
dishonesty and therefore that dismissal was the appropriate sanction.
‘
Ms Frank:
So, is this report; there is nowhere that says there is any
dishonesty. So, how did you, Ms Dall'Omo, come to the conclusion
that
there is dishonesty?
Dall’Omo
If you refer to the bank account attestation which has been performed
in the months of... for
the period ending end of December 2011, March
2012 and June 2012. I did not know at this point in time when this
investigation
came along that Mr Franke had knowledge of the account
and that Mr Franke was a signatory to that account. Only subsequent
to that
I became aware of it. And hence as he knew about it and he
did not answer the question ‘I do not confirm’; this I
regard
as
dishonesty.’
Ms
Dall’Omo conceded that the forensic report and the disciplinary
enquiry specifically found that the applicant was
not
guilty of dishonesty and that the report recommended in respect of
the applicant that the respondent takes “appropriate
disciplinary actions
and/or
individual training”.
[14]
She also confirmed that she had not given evidence at the
disciplinary enquiry and that the forensic report although it
pre-dated
the enquiry, was not placed before the disciplinary
enquiry.
Applicant’s
evidence
[33]
Mr Franke, the applicant was the only witness. He described in his
evidence, in some detail the difficulties, he had encountered
whilst
working in Nigeria. Included in the applicant’s documents where
a litany of reports, concerns and requests for assistance.
He
testified that as the Acting CFO he had encountered lots of
violations of the respondent’s processes and procedures
incurred
for a variety of reasons eg “cash on hand”;
non-approved accounts, and manual payments. He had to deal with all
these
issues in addition to his responsibilities as Sector Country
Controller, energy. He performed the tasks of Sector Country
Controller,
and Project Management, on top of the responsibility as
acting CFO. He had frequently reported on the difficulties he was
experiencing
and had requested help on numerous occasions but no
assistance was granted. It was clear from his evidence that the
situation in
the respondent’s Nigerian office was chaotic.
[34]
He testified that according to the records, during the years 2007,
2008, 2009, 2010, 2011 and 2012 (six years), nobody in the
entire
Siemens South Africa and Siemens Nigeria picked up the non-compliance
regarding the Zenith Bank account.
[35]
The applicant further testified that even though the account was not
recorded in Finavigate, it was still and had always been
reflected in
the books and records of the respondent, and accordingly that there
was never any risk of loss to the respondent.
Mr Orija, the Nigerian
office’s Accountant, who reported to the applicant in the
Nigerian office, was responsible to ensure
that the Zenith Bank
account was and had been registered in Finavigate. Mr Orija had since
2007 omitted to update the system appropriately,
even though he knew
and had known at all times that the account was active. The
respondent did not aver that the applicant himself
should have
physically uploaded the system, it was conceded that this was Mr
Orija’s responsibility. The responsibility of
the CFO was to
ensure that the report that the accounts were registered on the
Finavigate system was correct as required by the
rule. As a
consequence, Mr Orija was served with a written warning and taken for
training as opposed to the applicant who was dismissed.
[36]
The applicant explained that as the acting CFO, he had relied on Mr
Orija as the Accountant. Accordingly, when he noted the
discrepancy
he had asked Mr Orija about it and he was told that the account was
an interim account. The Forensic investigation
report found:
‘
Mr Tunde Orija, Head of
Accounting and Controlling for Siemens Nigeria was responsible for
ensuring that the bank accounts were
appropriately registered in
Finavigate. And he omitted to update the system appropriately, even
when he knew that the account was
active.’
[37]
The applicant testified that he relied on the documentation that Mr
Orija gave him; and that he performed the attestation function
to the
best of his ability. And insofar as there was an oversight of this
account, it was an error of omission; that it was not
done
dishonestly.
Evaluation
[38]
What is
clear from the outcome of the disciplinary enquiry is that the
chairperson of the disciplinary enquiry made it clear that
the
applicant was not guilty of dishonesty. The charge as listed in the
charge sheet accused the applicant of “breach of
CF Circular
number 12 12 /2008, alternatively gross dishonesty, alternatively
dereliction of duties as acting CFO.” The chairperson’s
conclusion was that:
‘…
relating to the
overarching charge regarding the breach of the Circular 12/2008. I
would not describe what happened as “gross
dishonesty”
but rather “dereliction of duties as an acting CFO. If the
company believed there had been gross dishonesty
I am assuming they
would have suspended Mr. Franke and charged him with contravening the
code of ethics’
.
[15]
[39]
The
forensic report commissioned by the respondent, which had been
completed by the time the disciplinary enquiry took place, likewise
confirms that the applicant was not guilty of dishonesty. The
forensic report sets out in some detail the circumstances surrounding
the matter of the Zenith Bank account and includes a recommendation
regarding “disciplinary actions”. The report does
not
recommend dismissal.
[40]
The
respondent’s witness gave evidence that this report was binding
on the respondent.
[41]
It is
probable that this was the reason the report was not placed before
the disciplinary enquiry.
[42]
The
recommendation in respect of the applicant was that the respondent
considers “appropriate disciplinary actions
and/or
individual training”. (my emphasis) This recommendation is in
keeping with the conclusion that there was no dishonesty. The
recommendation clearly contemplates some form of disciplinary action
short of dismissal and training. Had the report considered
the
applicant’s conduct to be serious enough to warrant dismissal
it would have said so.
[43]
In the
enquiry, the applicant raised the issue of consistency in regard to
the sanctions imposed on the other perpetrators. The
chairperson
indicated that it was hard to judge this
as
the investigation had not been completed
.
This was despite the fact that not only had the investigation been
completed but that the report too had been completed. In fact,
the
report reveals that it was only the applicant who was dismissed by
the respondent.
[44]
In her
evidence, Ms Dall’Omo, ignoring the contents of the report and
the evidence, suggested that the dismissal of the applicant
by the
respondent was the appropriate sanction for two reasons.
a.
Firstly,
she suggested that despite the conclusion of the disciplinary enquiry
and the forensic report, she regarded the applicant’s
conduct
as being dishonest. This view is in direct contrast with the facts
and what could be regarded as the respondent’s
official view as
set out in the report, namely that his conduct was not dishonest.
b.
The second
ground upon which Ms Dall’Omo suggests that dismissal was the
appropriate sanction is what she regarded to be the
applicant’s
lack of remorse. Her view was that had the applicant
admitted
the misconduct and tendered an apology, it would have changed the
view of the independent chairperson. If he would have
admitted that
he had done something wrong, she would “definitely have looked
at it in a different way”.
[45]
Ms
Dall’Omo’s evidence or opinion regarding the applicant’s
honesty or lack thereof is irreconcilable with all
the evidence, the
report and the finding of the disciplinary enquiry that the applicant
was not dishonest.
[46]
As far as
the suggestion that the applicant showed no remorse, it is important
to take into account that at no stage during the
forensic
investigation, the disciplinary enquiry or during the hearing of this
matter did the applicant deny that he was the person
responsible for
failing to deal with the unregistered Zenith Bank account. He
admitted that:
a.
he had
failed to ensure that bank account […] (Zenith USD account)
was registered on Finavigate;
b.
authorised
the two payments from the Zenith USD account in circumstances where
this account was not registered with Finavigate;
and
c.
attested on
the three separate occasions, namely the 1
st
,2
nd
and 3
rd
quarter of 2012 that all bank accounts are accurately and completely
registered in Finavigate despite the fact that the Zenith
USD account
was not recorded in Finavigate.
[47]
It is not
surprising that the applicant pleaded not guilty to the charges of
misconduct bearing in mind that he was accused of dishonesty.
It is
difficult to justify Ms Dall’Omo’s proposition that the
absence, in the particular circumstances of this matter,
of remorse
justifies dismissal.
[48]
The
applicant’s evidence both before the Court and the disciplinary
enquiry made it clear that the applicant was under extreme
hardship
in Nigeria. He had, at short notice, been appointed acting CFO in
addition to the responsibilities he was obliged to discharge
as
Sector Controller and Project Supervisor. It was not disputed that
the situation in Nigeria was desperate. The litany of the
difficulties and the requests for assistance the applicant had
addressed to the respondent more than adequately demonstrates this.
[49]
Taking into
account that the respondent had decided, despite the forensic report,
to accuse the applicant of gross dishonesty, it
is unsurprising that
the applicant did not admit to having been dishonest. Properly
construed the applicant’s plea of not
guilty at the
disciplinary enquiry and his explanation to all intents and purposes
an attempt essentially in mitigation to explain
how the circumstances
he found himself in led to the misconduct. It was clear from the
applicant’s evidence particularly
in this hearing that he once
again sought to explain the circumstances that led to the failure to
deal properly with the Zenith
Bank account.
[50]
I am of the
view that Ms Dall’Omo’s evidence that the applicant’s
absence of remorse justifies dismissal is ill-founded.
[51]
What is
clear is that the applicant was guilty of misconduct. The extent of
his misconduct was that he was negligent in dealing
with the Zenith
Bank account in performing his duties as acting CFO. The issue to be
decided is whether that negligence justified
the sanction of
dismissal.
[52]
I am
satisfied that the sanction of dismissal was inappropriate, too harsh
a sanction taking into account the background circumstances.
Accordingly, I am satisfied that the applicant’s dismissal was
unfair. This is particularly so taking into account
the
following mitigating aspects of this matter:
a.
the
applicant’s length of service;
b.
the
circumstances surrounding his appointment as acting CFO in the
Nigerian office of the respondent and the actions of the respondent’s
employees both before and during his appointment;
c.
the parlous
conditions in the Nigerian office;
d.
the
forensic Investigation Report and its binding recommendations;
e.
the
disciplinary chairperson’s report and the evidence led in
court.
[53]
The fact
remains however that the applicant was guilty of misconduct. It is
therefore necessary and appropriate to determine an
appropriate
sanction. I am of the view that the applicant should be given a final
written warning regarding his misconduct.
[54]
At the
commencement of this matter, the respondent made an open offer of
settlement equivalent to 12 months’ remuneration.
The applicant
rejected the offer and persisted with his claim for reinstatement.
[55]
No evidence
was led to suggest that reinstatement was not reasonably practicable
and therefore having found that the dismissal was
unfair the remedy
to which the applicant is entitled to is reinstatement.
[56]
As far as
costs are concerned, the parties were equally responsible for the
matter being unnecessarily referred to this Court. Whilst
it is so
that the applicant applied for the matter to be so referred the
respondent filed a notice with the director recording
that it had no
objection to the application. Therefore, this Court must approach the
question of costs in accordance with the provisions
of the LRA. I can
find no reason in law or in fairness why costs should not follow the
result.
[57]
In the
interlocutory matter involving the redacted report, costs were
reserved. As it turned out the respondent’s attempt
to suppress
the full contents of the report was ill-advised and misguided. It
became clear during the evidence that the full report
was relevant to
a proper consideration of the matter. This justifies an order that
the costs of that application be paid by the
respondent.
[58]
In the
circumstances, I make the following order:
Order
1. The dismissal of the
applicant by the respondent was substantively unfair.
2. The respondent is
ordered to retrospectively reinstate the applicant from the date of
his dismissal; taking into account the
months’ notice the
applicant was given.
3. The applicant is to be
issued with a final written warning relevant to the misconduct of
which he was found guilty.
4. The applicant is to
report for duty within 14 days of the date of this order.
5. The respondent is
ordered to pay the applicant’s costs including the reserved
costs of the interlocutory application.
_______________
D.
Gush
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate. L Frank
Instructed
by: Robin Wheatley Attorneys
For
the Respondent: Advocate. T Ngcukaitobi
Instructed
by: Werksmans Attorneys
[1]
Act 66 of 1995 as amended.
[2]
Pages 167 of
Respondent’s bundle of documents.
[3]
Pages 125 of
Respondent’s bundle of documents.
[4]
Page 125
Respondent’s bundle of documents.
[5]
Pages 128 –
146 of the respondents bundle of documents.
[6]
Pages 143,144 and
155 of the respondents bundle of documents
[7]
Pages 150 –
155 of the respondents bundle of documents.
[8]
Pages 156 of the
respondents bundle of documents.
[9]
Pre-trial minute
13 February 17.
[10]
Rule 4 (b)(iv).
[11]
Record volume 1
pages 12 – 15.
[12]
Page 167 of the
respondent’s bundle of documents
[13]
Record pages 85
-86.
[14]
Forensic report
page 185 of the respondent’s bundle
[15]
respondents bundle
page 146.