Austin-Day v Absa Bank Ltd and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Waglay JP and Coppin JA and Kubushi AJA
• Judgment Date: 08 March 2022
• Court: Labour Appeal Court
• Hearing Date: 23 November 2021
• Docket Number: PA02/2020

Kubushi AJA:

Introduction:

[1]

The appellant hereby appeals, with leave of this court, against the whole of the judgment and order of the Labour Court ("the court a

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quo") handed down on 4 November 2019. The appeal seeks to restore the arbitration award issued by the second respondent (the commissioner who adjudicated the dispute under the auspices of the Commission for Conciliation Mediation and Arbitration ("CCMA")), wherein he found the appellant's dismissal by the first respondent ("the bank") to have been substantively unfair and ordered her reinstatement.

[2]

At the time of her dismissal, the appellant was in the employment of the bank as a Branch Manager. The appellant was charged and dismissed for misconduct, which was alleged to involve dishonesty and her alleged failure to comply with the bank's policies and procedures in the execution of her duties as a Branch Manager.

[3]

The bank, aggrieved by the award of the commissioner, brought an application in terms of section 145 of the Labour Relations Act, [1] in the court a quo, seeking to review and set it aside.

[4]

On the date set for the hearing of the review application, the parties' legal representatives approached the judge allocated to hear the matter with a draft consent order, which was curiously made an order of the court, the effect of which was that the matter was remitted to the CCMA for a further hearing before the same commissioner in respect of the "second charge". The review application was otherwise postponed indefinitely. Consequently, the parties returned to arbitration and held a further hearing confined to what was termed the second charge, in the consent order. Subsequent thereto, the commissioner issued a supplementary award, which also formed part of the arbitration award which the bank sought to review and set aside.

[5]

When the matter was referred back to the court a quo, the judge presiding, correctly refused to entertain the supplementary award on

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the ground that the first arbitration award was final and binding and the CCMA could not revisit the process of resolving a dispute which it had already resolved, and had issued an arbitration award, in respect thereof. This aspect is not challenged on appeal and I, in that sense, find it not necessary to deal any further with the said supplementary award, in this judgment.

[6]

The court a quo found in favour of the bank. It reviewed and set aside the award and replaced it with the order that the dismissal of the appellant was fair. It made no order in respect of costs.

Background:

[7]

For the appropriate appreciation of the matter, it is prudent to traverse its factual background in some detail. The appellant was employed by the bank as a Branch Manager at its branch, at 6th Avenue, Walmer Park, in Port Elizabeth. It is not in dispute that at the time of the alleged misconduct of the appellant she had been in the employment of the bank for a period of approximately thirty-three years with an unblemished record. She had, however, worked as a Branch Manager, in various branches of the bank, for a period of fifteen years, preceding her dismissal.

[8]

The conduct that led to the appellant's dismissal emanates from the following set of facts: during her employment as the Branch Manager at 6th Avenue, Walmer Park, the appellant decided to deposit R100.00 of her own money into ten inactive accounts, opened by ten different customers, that were under her control at her branch. An amount of R10.00 was deposited in each of those accounts. The deposits were made without the knowledge and/or consent of the holders of those accounts. The effect of such deposits was that those accounts, which were inactive, were then recorded as activated accounts in the branch's books, and as such, constituted sales in terms of the branch's

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performance. One of these accounts was, subsequently, operated by the account holder who deposited further moneys into the account.

[9]

The accounts in question, are referred to as "Transact Accounts" which are said, basically, to be transactional accounts aimed at individuals who are either unemployed, or irregularly employed, and who would make deposits of around R2 000.00, or less, in any given month, into the respective accounts. Thus, the accounts are used predominantly by customers falling within the low income group. Sales people of the bank would get people to open such accounts, which only become operational once a deposit is made into the account. Otherwise they remain inactive. However, after four months if no deposit is made into the account it becomes dormant. Given the basic nature of the accounts, no minimum opening balances are required and no minimum daily balance is required. Customers also do not automatically receive monthly statements in respect of such accounts.

[10]

Each of the bank's branches has sales targets which are recorded when a newly opened account is activated. Although accounts are opened when sales are registered, each specific account only becomes activated once the customer makes a deposit into the account and starts transacting. Once an account is activated, it then starts attracting costs in the form of a cash deposit fee together with administrative fees. It is at this time that the bank will be able to make a return, based on the fee charges generated for the transactions that take place

[11]

During a routine visit to the appellant's branch by Mr Gareth Sylvester Raynold Vallentyn's ("Mr Vallentyn"), the area head manager of the bank', the appellant voluntarily informed him about the deposits in question. Mr Vallentyn thereafter informed the bank's forensics department, which investigated the matter. In its report, forensics

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confirmed that they could not detect any fraudulent conduct and made a recommendation that remedial action be taken.

[12]

Further investigations into the policy and procedures of the bank was undertaken by the operations consultant who recommended disciplinary action against the appellant. She was charged with two counts of alleged misconduct, as follows:

Count 1:	"It is alleged that you acted dishonestly, in the execution of your duties as a Branch Manager of ABSA, 6th Avenue, Walmer Park, when you made irregular cash deposits into customer accounts;
Count 2:	"It is alleged that you failed to adhere to the Group's laid down Policies and Procedures in the executions of your duties as a Branch Manager".

[13]

Following a disciplinary enquiry, the appellant was found guilty and dismissed. The reason for the dismissal of the appellant was recorded as follows: 'after considering all the facts the decision is dismissal with contractual notice – Guilty of charge of dishonesty within ABSA ER do not have a lesser sanction that dismissal ZERO-TOLERANCE'.

[14]

As earlier stated, the appellant, aggrieved by the decision, referred an unfair dismissal...