As a result of the right to appeal against a debarment decision, there was a substantial increase in debarment cases referred to the Tribunal since April 2018. In most of these cases the process was challenged. Some of these cases were remitted back to the FSP for reconsideration and to follow the prescribed debarment steps. But what happens when a financial adviser is debarred after he or she has left the FSP? Is this allowed or not?
In a recent Tribunal case the emphasis is again placed on the process to follow when a FSP wants to debar a financial adviser.
In this case the applicant states that she terminated her employment with the FSP during the course of 2017. She only learnt of the debarment on 16 January 2019 from another company that employed her after she left the FSP.
According to the Tribunal the FAIS Act authorises debarment of financial services representatives who have left the employ of the FSP. The process to be followed to achieve this is clear.
| ● | Section 14 (1) of the FAIS Act provides, inter alia, that: “An authorised financial services provider must debar a person from rendering financial services who is or was, as the case may be a representative of the financial services provider …” |
| ● | Section 14 (5) of the FAIS Act reads further: “A debarment in terms of section 14(1) that is undertaken in respect of a person who no longer is a representative of the financial services provider must be commenced not longer than six months from the date that the person ceased to be a representative of the financial services provider.” |
Therefore an FSP would be well within its right and in fact, would be obliged to debar its former representative where justification exists for such debarment. However, section 14 (5) of the FAIS Act sets the period of six months as time within which an FSP must commence the process to have its former FSR debarred. The FAIS Act therefore proscribes the FSP from commencing debarment of its former FSR outside the six months period reckoned from the time the FSR ceased to be its representative.
In this specific case and circumstances the FSP acted outside the boundary prescribed by section 14(5) of the FAIS Act. As a result the debarment was set aside.
If you need to read a case study on how NOT to handle the disciplinary process, click here to read the Tribunal case.
The FSCA Guidance notice on debarments provides excellent background to help you follow the correct procedure in most instances. In the case above, where the six months period had passed, the FSP should have notified the FSCA, rather than conduct an absurd process.
Good day
I was debarred 5 years ago for honest and integrity. I applied for a position at another Fsp recently and I was told to request a letter from the debarring Fsp as per Board notice 82 to confirm that all business between me and he Fsp has been concluded.
The Fsp that debarred me has not provided me with the letter it been more than 30 days.
Their HR says they are still investigating as their compliance department has recommended that they lift the debarment.
Please assist how do I move forward and what are my rights as I have lost the offer waiting for the letter?
Good day.
To advise you, one of our compliance experts would have to understand all the facts and legal issues relating to this matter. Visit https://www.moonstonecompliance.co.za/ to find out more about Moonstone Compliance’s FAIS and Employment Law services. To contact Moonstone Compliance, email support@moonstonecompliance.co.za or use the online enquiry form https://www.moonstonecompliance.co.za/make-an-enquiry/
Good Day
I left the company last year 31 October 2022 than this year 2023 on the 1st of june i was called to come for debarment hearing…intention for debarment. Can u debar n ex employee after 6 months?
An FSP cannot commence debarment proceedings against a former representative after six months from the date that the former representative ceased to be a representative of that FSP. If the debarment proceedings were commenced within six months from the date that the person ceased to be a representative, the notice of debarment may be issued after six months. Based on what you state in your question, it seems the FSP is starting the debarment proceedings after six months, which it cannot. You are believe you have been debarred unfairly, you can complain to the Financial Services Tribunal.
Evening,I resigned on the 2nd of January 2023 the on the 15th of May 2023 the sent me a notice of debarrement stating that I have come for hearing on the 6th of June,I failed to attend the hearing…what should I do now ?please help
I suggest you write to the FSP that wants to debar you and apologise for not attending and ask whether they are willing to hold another hearing.
I. Was Debbared last year for 5years for dishonest and integrity November I want to reply after 6month what should I do. Or to start again
You can’t apply for reinstatement after six months if you were debarred for 5 years.
Good day
I was dismissed for failure to disclose an extra income(Dishonesty) on January 2023 by the company I worked for, then on the 2nd of August 2023 I received a Notice of Intention to Debar, then on the 4th of August 2023, I attended the hearing and It was postponed due to the Initiator of hearing could not find provide notes and minutes of my dismissal hearing, so now I am worried because it’s been 5 working days without any contact to attend the hearing set again.. What steps should I take to make sure I am not debarred without my presence or knowledge.. Based on my view on the 1st hearing, I am very sure that the initiator wanted to settle personal interest using debarment as an excuse or tool to ruin me
It would be procedurally unfair for an FSP to hold a debarment hearing and not inform you of it. I suggest you contact the FSP in writing (email) and follow up on when the hearing will be held. If they do not respond and it comes to your attention that a hearing was held without your knowledge and you receive a debarment notice, you can take your case to the Financial Services Tribunal.
I have a pending case of being this debarred and is due for recall on the 06 December 2023 for finalizing the case so I need advice as to make sure the person responsible for the case also gets debarred
I was suspended without pay on 08 March 2023 for gross Misconduct according to the FSP, and the debarment hearing was set, before even had a disciplinary hearing with FSP to voice my side of the story. 9th June I Attended the the debarment hearing and in August I received the email that after my presentation the FSP has decided not to continue with debarment. The outcome came out after 2 months of waiting which I don’t think is fair either.
Then I have asked the FSP what the way forward after this and boom I am told that they waiting for the chair person so they can start disciplinary hearing from the HR side
I am very confused indeed because the charges I had, I was cleared from now they starting the new case that I am not aware off as they said they waiting for the chair person. bearing in mind that no charge sheet has been provided to me except the one for gross misconduct that I was cleared from.
Kindly note that I have been working for this FSP for 4 years now. No specific product training was given to me , I worked without training and all other employees are privilege enough to be train but I am the only one in the whole division / branch that is denied the specific product training for the product that I sell to the client on daily basis. When I tried to force the training I was told by my line manager that I’m educated so I will understand the product .
This is very doggy to me.
my questions are :
1. Can the FSP employe people and ask them to sell financial product without product training ?
2 .Can the FSP call the employee for debarment hearing before the disciplinary meeting with HR?
3 .Can question no.2 be other way round invite the staff. for debarment first then after the outcome the FSP start the disciplinary action.
4 Can the Hr forced you to resign and tell you if you refused to resign they will continue with disciplinary hearing because you fighting the company?
The FSP clearly stated that on their suspension that I am still their employer but I have not received the salary since February 2023. and they delaying my case and I’m starting to lose my asset that I worked hard for as I m not getting any salary and is seems as if they don’t care about my livelihood all they push is for me to resign.
Please assist about the above matter.
Good day
1. Product-specific requirement is required by section 29 of the Fit and Proper Requirements. Section 30 requires that an FSP keep a record of the product-specific training. Therefore, not providing product-specific training is non-compliance.
2 & 3. It’s very unusual for an employer to hold a debarment hearing before a disciplinary hearing, but I cannot find a provision in law that prohibits it. The grounds for debarment and the grounds for disciplinary may not necessarily be the same. Debarment is for non-compliance with fit and proper and usually relates to misconduct while rendering services to clients.
4. This is sounds like an attempt at forced or constructive dismissal, which is grounds for you to take legal action.
I suggest you engage the services of a labour lawyer.
Good day I’d like to find out I see when I check my name under debarred persons I reflect and I don’t even know for how long cause it states June 2020 till when it’s for dishonesty and integrity something something
I resigned on the 5th of jully from my previous employer and find another job and and I didn’t signed any debarement letter but there was a complain from a client that comes after resigning now they are discussing to debare me.is that fair?
The reasons for a debarment must have occurred and become known to the financial services provider while the person was a representative of the provider. Based on what you have disclosed, it does not seem the FSP can debar you – if the only grounds for the debarment is this complaint that was filed after you were no longer the FSP’s rep. Perhaps they discovered issues that occurred before you resigned, and the client’s complaint is linked to them.
Hi. I was debarred without being notified of the intention to be debarred. I sent through an appeal to the FSCA, however my case was not changed as the FSP told lies to the FSCA that they has sent notice to me to my last known address, however I did not receive that notice. I was also not aware that I had a DOFA as well as that I was a representative of the FSP. as I was working for the FSP for over 8 years without knowledge of a DOFA and being registered as a representative. I have no RE QUALIFICATION. Please help.
I suggest you take your case to the Financial Services Tribunal.
I reaigned 29/08 /2023 on 1at of November I received aan email to decide whether muat I debarred or not, final was I ll be debarred, but they never did that until My ex manager, received a call for reference for another position same company on 13 /02/ 2024 , and she decided to debarred me, so that other department must’ve hire me
Just want to know if is that fair? If I didn’t get another job ahe was not gonna debarred me