The Labour Appeal Court in South African Society of Bank Officials (SASBO) and Another v The Standard Bank Of South Africa Limited and Others JA32/2021 had to decide whether the Labour Court correctly set aside a CCMA award in favour of the employee.

Ms Frazenburg was charged with dishonesty in that she falsified the bank’s records when she balanced her savings with an incorrect balance to show a balanced position. Part of her duties as a forex consultant was to operate an ATM safe that contained her cash for the day. She would use the cash in her safe to load various ATMs. Once she had done so, she was required to adjust the amounts that had been loaded into the ATMs. The system would then reflect that the money is no longer in the safe but in the ATMs. At the close of business, Ms Frazenburg had to ensure that all her transactions were adjusted. Thereafter, she would balance her safe by physically counting the money in the safe and recording the balance in the system. The money in the safe had to be reflected in the bank’s records or system as her balance for the day.

When she knowingly recorded a false balance of her takeover, the employee’s misconduct was an intentional act to force balance the system or, as she called it, “to fix what had gone wrong”, as she feared being accused of theft. It was not just an act of negligence, as the CCMA Commissioner found. She intended to deceive the bank. She may not have intended to steal any money, remarked the court; however, that was not the reason she faced discipline. According to the Labour Court, the fact that the bank suffered no loss did not exonerate Ms Frazenburg from her dishonest conduct, which the bank’s system was designed to prevent.

The court noted that dishonesty is a generic term embracing all forms of deception. Deceit can manifest itself in various forms, including a lack of integrity or straightforwardness, a willingness to steal, cheat, lie, act fraudulently, provide false information, non-disclosure of information, pilfering and theft. In all cases, it entails a breach of the employee’s fiduciary duty. The bank’s disciplinary code included giving false information as a form of dishonesty, for which dismissal may be warranted at first instance. Charges in workplace disciplinary matters need not be drafted with the precision of those required in criminal proceedings. She was clearly aware of the rule against falsifying bank records and had deliberately breached it. A simple exercise that she was required to perform was to count the money in her safe and record the balance on the system. That she did not do, which amounted to dishonest conduct that had destroyed the trust relationship. The Labour Appeal Court upheld the dismissal.

The courts have frequently upheld dismissals for dishonesty. However, the facts of every case must be assessed, and the mitigating features considered. The employer must ensure that they can prove that there is a rule in the workplace against dishonest acts or can prove that the employee should have reasonably been aware of the rule and that such conduct amounts to dishonesty and a material breach of the employment relationship.

Should employers be faced with a similar situation where they believe the trust relationship has been compromised, it is advisable to consult with your labour law experts for assistance.

Article By: Anesta Kruger
Dispute Resolution Official – CEO Durban