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[2018] ZALCD 26
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Capitec Bank Limited v CCMA and Others (D860/2017) [2018] ZALCD 26 (28 November 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Not
of interest to other judges
Case
no: D860/2017
In
the matter between
CAPITEC
BANK
LIMITED Applicant
AND
CCMA First
Respondent
C
OAKS
N.O. Second
Respondent
NHLAPO
D Third
Respondent
Heard:
28 November 2018
Delivered:
28 November 2018
Edited:
20 December 2018
Summary:
Review application – award one that a reasonable
commissioner could have made – application dismissed
EX
TEMPORE
JUDGMENT
COETZEE
AJ
[1]
This is the ex-tempore judgment with reasons in case number D860/2017
between Capitec Bank Ltd, applicant, the CCMA, first respondent,
C
Oaks NO, second respondent and D Nhlapo, the third respondent.
[2]
The applicant seeks to review and set aside an arbitration award
dated 4 June 2017 under case number KNDB10460/2016. The award
reinstated the third respondent after having been dismissed.
[3]
The proceedings have been somewhat protracted. The matter can,
however, be resolved on a fairly restricted basis.
[4]
The applicant had in place a rule that provides as follows:
“
Where
an employee issues or approves a loan to a client who has submitted
fraudulent documentation, appropriate action to be taken
warrants
dismissal when:
fraud
check not properly done and as a result errors / fraud indicators
were not detected.”
[5]
It is important that, this rule applies to an employee who issues a
loan or approves a loan to a client.
[6]
The applicant charged the third respondent with the following:
“
Transgression:
approval of a fraudulent loan: on 1 April 2016 at Durban West Street
331 branch, you approved a fraudulent loan issued
by S C Palisa
Makotodia to a client named …
“
You
failed to notice that the payslip and the bank statement used was
(sic) fraudulent. Capitec suffered a loss of R79 485.99.”
[7]
The charge clearly related to the rule quoted above. The third
respondent did not look at the paperwork. The employer found
the
employee guilty as pleaded and dismissed her. She did not expect to
be dismissed after pleading guilty.
[8]
The third respondent ("the employee") had previous
warnings: one on 6 February 2014 for misconduct relating to breach
of
policy and procedures; a written warning on 9 December 2014 for
misconduct relating to passwords and the final written warning
on 30
July 2016 for dereliction of duties.
[9]
The employee contends that the applicant acted inconsistently in that
one Greer who was a branch manager at the Smith Street
branch issued
a fraudulent loan of R1 500 and was not dismissed.
[10]
This case, according to the applicant, was distinguishable as Greer
only had to carry out a final check as the loan was issued
solely by
the service consultant who was dismissed.
[11]
The employee also raised an inconsistent application of discipline
with reference to L Khan.
[12]
According to the applicant, in the case of L Khan, the errors that
she disregarded were previously referred to the fraud department
as
suspicious but who said they were legitimate documents and she
therefore approved the loan when she later found the same errors.
That was not a dismissible case.
[13]
The employee stated that if she was given the option to resign she
would have taken it.
[14]
She conceded that she was busy at the time.
[15]
In the award the Commissioner correctly interpreted the rule
correctly but then made a finding that the witness had testified
that
the employee was guilty of gross negligence and that the applicant
dismissed her for gross negligence instead of for the breach
of a
rule.
[16]
It cannot be that, the applicant dismissed the employee for gross
negligence. This was the interpretation of the witnesses
as to the
seriousness of the contravention of the rule. She was not dismissed
for gross negligence but for breaching a rule which
would constitute
gross negligence. The applicant dismissed her for a breach of the
rule.
[17]
This approach of the Commissioner does not have a material effect on
the outcome of the proceedings, as I will demonstrate
below.
[18]
The Commissioner considered whether the rule was fair and did not
make a finding that the rule was unfair. The Commissioner
held that
during cross-examination the employee conceded that she had failed to
review the documents and that would mean checking
for fraud
indicators. In so many words, the Commissioner found her guilty of
being in breach of the rule.
[19]
The Commissioner regarded as mitigating factor the fact that three
other persons had scrutinised the documents before her.
The provision
in the disciplinary code in fact refers to any employee who breaches
that rule either by issuing or approving the
loan. Four persons were
involved in the issuing and approving of the loan.
[20]
The commissioner paid much attention to the consistent application of
the rule. As to consistency, he limited himself to the
two cases of
Greer and Palisa Khan.
[21]
He found that one of the distinguishing factors was that Khan had a
clean disciplinary record and for that reason she was not
disciplined
but given the option to enter into either a separation agreement or
to resign, whatever the factual position was. But
she was not
disciplined or dismissed.
[22]
The Commissioner found that the employee had two warnings that both
had expired. Both warnings did not directly relate to the
issue at
hand, and that is approving a fraudulent loan.
[23]
In any event, they were not valid for purposes of further
disciplinary action as they had already expired. For other purposes,
the employer might have had regard thereto. The applicant's
submission that the applicant could for purposes of progressive
discipline
rely upon the two expired warnings is ill founded.
[24]
The third warning of 30 July 2016, according to the Commissioner,
issued two days prior to the disciplinary hearing in which
she was
dismissed, was also to be considered. He found that she did not have
the opportunity to challenge the veracity of that
final written
warning.
[25]
Having found that the employee had no valid prior warnings, as they
had expired, he found that there was no difference between
the
employee and Khan as both had clean disciplinary records.
[26]
The Commissioner also held that
Khan was a comparator as to consistency. She was the first main
person to work on the loan application.
She shared equal
responsibility with the employee. She was given the option to resign
while the employee was not given such option.
That, according to him,
was inconsistent application of discipline. He relied upon the case
of
Member of the Executive
Council, Department of Health Eastern Cape Public Health and Social
Development Sectoral Bargaining Council
and Others.
[1]
In this case the Court held that one of the three perpetrators
involved in the same transaction were given the opportunity to resign
but the third one in a similar position was not given the opportunity
to resign. For that reason the dismissal was substantively
unfair.
[27]
The grounds of review relate
inter alia
to an alleged
misconception of what “gross negligence” is, that the
previous warnings were still relevant, a misunderstanding
of the rule
about inconsistency by the Commissioner and the like.
Analysis
[28]
There was a rule that specified the consequences in the event of a
breach. The employee may be dismissed.
[29]
The applicant submits that the two previous warnings were still
relevant and therefore that the employee had a disciplinary
record.
It is correct that fairness must dictate whether expired warnings may
be taken into account. The 2014 warnings have expired.
They dealt
with policies but not specifically with what she was alleged to be
misconducting herself in during April (for which
she was called
before a disciplinary inquiry in August). They had already expired
and therefore it is unfair to have regard to
them on the facts of
this matter.
[30]
In July 2016 a warning was issued after the fraudulent loan was
approved in April. It therefore in the normal course of proceedings
will not serve as part of the disciplinary record that could
influence the sanction imposed upon her during the August
proceedings.
There was no opportunity to correct her behaviour after
the final written warning in July because the event occurred probably
after
the 1 April event. The horse had already bolted as far as
alleged misconduct that had already occurred on 1 April 2016.
[31]
The Commissioner’s finding that she did not have an opportunity
to challenge the final written warning and that it must
be
disregarded and that her position equated to that of Palisa, is not
one that a reasonable Commissioner could not have made.
In fairness,
they both therefore had no valid disciplinary record.
[32]
All the other issues aside, the Commissioner eventually held that
there was inconsistency in the treatment of the perpetrators.
The employee was not given the opportunity to resign either in terms
of a mutual separation agreement or simply to resign. The
applicant
submitted that resignation was always open to her, but she elected
not to do so.
[33]
Of the four who issued, checked and verified the documentation, only
one was dismissed. Palisa was given the opportunity to
enter into a
mutual separation agreement or to resign, whatever the position was.
The employee was not given that opportunity.
Applicant submits
it was a simple resignation. She could merely resign if she wanted
to. The evidence is not clear on what the
option to resign means. The
evidence of the third respondent referred to in the transcript
records that she referred to a resignation.
[34]
In cross-examination reference was made to a mutual separation
agreement but that was not pursued any further. That would seem
to be
more than a resignation, and it probably was, but it is not necessary
for me to make a finding on that. It is sufficient
that the other
employee was given the option to resign and then did so. Then why not
grant the opportunity to the third respondent?
The evidence strongly
suggest that it is an offer that must come from the applicant.
[35]
The
Executive Council
-case refers to only the option to resign
as opposed to a disciplinary inquiry. On the evidence it appears that
the circumstances
must have been such that she had to be offered the
opportunity to resign so that her record remains clean.
[36]
Much was made in evidence about the opportunity to be given to
resign. The circumstances as to why that was necessary has not
been
elaborated on in the evidence as far as I could ascertain. The
employer did not clarify the position regarding an option to
resign
versus a disciplinary inquiry.
[37]
The evidence shows that such an option existed, and that the employer
had to offer it. This must mean something. The only qualifier
was the
clean record of the applicant or the person involved in such a case.
[38]
I find the
Executive Council
-case applicable. The ultimate
conclusion of the Commissioner that the applicant dismissed the third
respondent substantively unfairly
is an award that a reasonable
Commissioner could have made. One may differ from the award, but it
still falls within the band of
reasonableness.
[39]
As far as costs are concerned, I have considered the factors that
determine a cost order. The parties are still in an employment
relationship and it is inappropriate to make a costs order,
[40]
I make the following order:
[40.1] The application is dismissed.
[40.2] There is no order as to costs.
___
__________________
F
Coetzee
Acting
Judge of the Labour Court
Appearances:
For
the applicant[s]: Mr W Jacobs from Willem Jacobs & Associates
For
the Respondent[s]: Ms N Hiralall from Hiralall Attorneys
[1]
2016 37 ILJ (LC)