In August last year, Moonstone reported that the Financial Services Tribunal (FST) had set aside the debarment of a representative who was dismissed and subsequently debarred for submitting receipts for Uber trips she did not undertake. Recently, the Tribunal dismissed the reconsideration application by another representative who was dismissed and debarred for helping her colleague to generate the falsified Uber receipts.
Read: Representative debarred for submitting falsified Uber receipts
In January 2022 the applicant, “PS”, arranged an Uber trip for her colleague from her cellphone and later cancelled the trip. When their employer, LiquidCapital (Pty) Ltd, requested proof of the claim after a claim was paid to her colleague, PS submitted the receipt knowing that the trip did not take place, the Tribunal’s decision said.
“It later transpired in a meeting between the applicant, her colleague, and her employer that the applicant had lied and forged a fake receipt,” the FST. It subsequently came to light that PS fraudulently created the forged receipt with the help of an Uber driver.
A disciplinary hearing found that PS breached the company’s policy by presenting falsified receipts to her employer. LiquidCapital debarred PS in March 2022 because she no longer met the Fit and Proper Requirements of honesty, integrity, and good-standing.
It is interesting that the Tribunal upheld LiquidCapital’s decision to debar PS, although one of the reasons the Tribunal set aside the debarment of her colleague, “LS”, was that her misconduct or alleged misconduct did not involve the rendering of financial services.
In that decision, the FST drew attention to the fact that the employer’s debarment policy provided that “a decision by an FSP to debar a representative can be taken only for reasons relating to the rendering of the financial services”. Therefore, it said, any decision to debar a representative for reasons other than reasons related to the rendering of financial services is invalid.
Differences between the two cases
That said, there were differences in the circumstances surrounding the two debarments and reconsideration applications.
LiquidCapital had agreed to reimburse LS for transport costs while her car’s windscreen was being repaired. The windscreen had been damaged by stones flung out by a grass-cutter while LS’s vehicle was parked at her workplace.
LS submitted that her senior manager agreed that she could get a lift from a co-employee and would be reimbursed at the rate of the Uber charges for the trips from work to home and back. She initially sent the quotes for the Uber services and later obtained receipts that were generated to be in line with the quotes, so she could be reimbursed.
The Tribunal said the exact nature of the agreement between LS and the head of sales was in dispute. The only evidence from the record was that LS was allowed to use an Uber quotation to claim for her transport costs. There was evidence that the quotations were accepted by the employment. But there was no evidence that the Uber receipts differed materially from the quotes.
The FST took issue with how LS’s debarment hearing had been conducted. It said the finding by the chairperson of the debarment hearing that LS pleaded guilty to the charges during her disciplinary hearing “misconstrued” what appeared in the record of the disciplinary hearing, where it was stated that LS pleaded not guilty and challenged the charges against her.
The Tribunal also criticised the chairperson of the debarment hearing for not embarking on an independent inquiry to establish whether LS no longer met the Fit and Proper requirements. The FST said it was not satisfied that the chairperson evaluated the issues to satisfy herself of the seriousness of the alleged misconduct.
Regarding the recent case of LS, the Tribunal’s decision states that her reconsideration application did not set out any grounds that disputed the facts on which her debarment was based. LS did not make any submissions challenging the procedure followed by the FSP, nor did she dispute the facts on which her debarment was based.
The Tribunal found that that “on a proper consideration of all the facts, this is clearly a simple case of a dishonest representative”.
According to the FST’s decisions, neither applicant had legal representation. The Tribunal’s decision in LS’s case followed a formal hearing, whereas both parties in PS’s cases waived their right to a hearing, and the matter was decided on the papers filed.
