A debarred representative’s case at the Commission for Conciliation, Mediation and Arbitration (CCMA) has nothing to do with a debarment matter before the Financial Services Tribunal (FST).
Debarred representatives sometimes seek to rely on the outcome of a CCMA hearing, or a case pending before the CCMA, as grounds for not being debarred.
In a recent reconsideration application, the debarred rep, “JB”, said she has lodged a case of unfair dismissal against First National Bank (FNB) at the CCMA. She said the matter was still pending, and the dispute might even be taken to court; therefore, FNB’s decision to debar her was premature and prejudicial.
The dispute between JB and FNB has its origins in her opening a cheque account on the same customer profile in February 2021. According to the bank, JB opened the account deliberately, to earn embedded value (EV), which formed part of her remuneration. According to JB, she opened the account by mistake.
The Tribunal’s decision provides the following context: JB opened two spousal cheque accounts for a colleague’s husband. The customer came into the branch to open the account and deposited R50 to activate the account. JB opened another cheque account minutes later, on the same profile. JB transferred R10 from her personal account to activate the second account. She then closed the account, stating it was opened in error.
On FNB’s version, although JB claimed she opened the account in error, she still claimed the EV earned and failed to inform her line manager.
JB was found guilty at a disciplinary hearing in July 2021, and she was dismissed for dishonesty the following month.
FNB proceeded to debar her. The debarment panel did not accept her explanation of what happened. It concluded that JB had breached the honesty and integrity principles in the Fit and Proper Requirements.
The panel also concluded that she had not acted in good faith and in the best interests of the business and the customer in question, and that she had, by her own admission, contravened the bank’s Code of Ethics.
JB sought reconsideration of her debarment on the following grounds in addition to the pending CCMA case:
- FNB’s deduction that she had opened the account for the sole purpose of earning the EV was misplaced. She was supposed to earn EV on another account and was not aware that the EV was allocated to the incorrect account that was opened.
- FNB’s deduction that she was dishonest was misplaced.
- FNB was not prejudiced. Instead, it was “common cause” that the bank experienced technical difficulties.
- The debarment jeopardised her future employment opportunities, and she was tremendously prejudiced.
Labour vs FAIS issues
The FST stated the following about the relevance of JB’s pending CCMA matter to the debarment:
“This Tribunal previously held that it needs to be stressed again that the CCMA proceedings are labour-related proceedings and have nothing to do with FAIS debarment – the laws differ, the rules differ, and the tribunals are different and have different competencies, although the same facts may be relevant, although not necessarily applicable in both instances.”
It also pointed out that the Tribunal can interfere with the findings that result in a debarment only if it has reasonable grounds or justification for doing so. In the Tribunal’s view, JB had not raised any valid grounds for reconsidering her debarment.
The FST said although it sympathised for the position in which JB found herself, it could deviate from the legal principles to which it was bound.
