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[2017] ZALCCT 7
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Standard Bank of South Africa v Benjamin and Others (C24/16) [2017] ZALCCT 7 (10 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
NOT
reportable
Case
no: C24/16
In the
matter between:
THE
STANDARD BANK OF SOUTH AFRICA
Applicant
and
LLEWELYN
BENJAMIN
First Respondent
MICHAEL
MARAWU N.O.
Second Respondent
CCMA
Third
Respondent
Heard
:
2 November 2016
Delivered
:
10 February 2017
JUDGMENT
RABKIN-NAICKER
J
[1] This
is an opposed application to review an arbitration award under case
number WECT115098-15. The second respondent (the Commissioner)
found
that the dismissal of the first respondent (Benjamin) was
substantively unfair and ordered his reinstatement with effect
from 7
December 2015, with no back pay, as well as the reinstatement of his
operating licence.
[2]
Benjamin was employed as a Financial Advisor. Evidence was
given at the Arbitration that Benjamin had acted in an irregular
manner when he accessed a customer’s account for personal
reasons. He then phoned the customer (Executor of the Estate Late
R
Reynolds) and posed as an ordinary Standard Bank employee, concealing
his true identity and asked the customer certain questions
in order
to report back to his cousins. The customer was upset when she
discovered that it was Benjamin and instructed her attorney
to
correspond with the Bank and cancelled her account.
[3] The
Bank’s Employee Relations Manager testified that Benjamin also
wrote a long email to the customer’s attorney
after he became
aware of the complaint received by the Bank, that had the potential
of further bringing the Bank into disrepute.
[4] The
Bank had also ascertained that the Applicant had assessed the
customer’s account a number of times since January 15,
and even
processed the printing of statements and related transactions before
that. Immediately after his dismissal, the company
submitted a
disbarment application to the Financial Services Board. The FSB acts
per a bank’s instructions in this regard,
and may also reverse
the debarment when instructed by a bank.
[5]
Benjamin did not dispute that he was guilty of the said conduct but
submitted that he believed the sanction and disbarment was
too harsh
and unwarranted in the circumstances. He testified that he acted out
of emotion when his uncle passed away after a very
short illness. He
felt obliged to assist his two cousins to follow up on their father’s
death benefit payment. He had grown
suspicious of the Executor’s
(another relative) handling of the estate. He could not understand
how he brought the Bank into
disrepute as he did not disclose any
details to the public domain. He made submissions on mitigation to
the Commissioner.
[6] The
Commissioner reasoned as follows:
“
I
am of the view that taking into account the totality of circumstances
in this particular matter, including the Applicant’s
clean
disciplinary record, mitigating factors, length of service (more than
11 years with Stanlib Group), and the potential effect
of a serious
warning on his future conduct. The fact that the Applicants
ill-conceived actions were entirely focused on this one
relative’s
(deceased uncle’s) account, under emotionally charged
conditions. I find the sanction of dismissal to be
inappropriate in
the circumstances.”
[7] One
of the grounds of review in this matter is that the Award stands to
be reviewed given the Commissioner’s failure to
consider
material evidence before him when deciding whether dismissal was a
fair sanction. These circumstances applicant submits,
include the
legislative and regulatory imperatives of the FAIS Act 37 of 2002 and
the Protection of Personal Information Act 4
of 2003 in relation to
the handling of clients information, and the confidentiality
requirements surrounding it. Further, the reason
why the Bank imposed
dismissal for this kind of misconduct. The testimony before the
Commissioner was that breaching confidentiality
was a no-go for the
Bank because “that hits at the heart of the trust relationship
between the bank and its client”.
[8]
In
Absa
Bank Ltd v Peter Rogers and Others
[1]
this Court dealt with the review of an award arising from the
arbitration of a dispute between a bank and a financial advisor.
The
court stated:
“
[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…….”
[9] In
this matter, the Commissioner did not take the totality of
circumstances into account and consider these in the balance.
These
circumstances included as submitted by applicant, that the FAIS Act
requires a person occupying Benjamin’s position
to always
exhibit honesty and integrity. I therefore consider the Award to be
one that a reasonable decision-maker could not reach.
[10] The
Award stands to be reviewed, set aside and substituted. I do not
consider it apposite to make a costs order in this matter.
I order as
follows:
Order
1.
The Award under case number WECT11509-15 is reviewed and set aside
and substituted
with the following order:
1.1
“The dismissal of the First Respondent was substantively fair.”
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
Mervyn Taback Incorporated
First
Respondent: Legal Aid-South Africa Justice Centre Cape Town
[1]
Absa Bank
Ltd v Peter Rogers & Others C31/2014; delivered 20 March 2015