Stephen Bhana Labour law and HR Consulting

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J 1155/20
In the matter between:
AARON MABASO Applicant
and
DISCOVERY LIFE Respondent
Heard: 30 July 2024
Delivered: 2 August 2024
This judgment was handed down electronically by consent of the parties by circulation to them via email. The date for hand-down is deemed to be 2 August 2024.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PRINSLOO, J
Introduction
The Applicant seeks an order to make a separation agreement (agreement) signed on 20 April 2020 an order of Court. The Respondent opposed the application.
Background facts
The background facts to this matter are briefly as follows: the Applicant was employed by the Respondent in October 2009 as an administrator and in 2014 he became a team leader. The Respondent initiated a retrenchment process, as contemplated in section 189 of the Labour Relations Act (the LRA) and the Applicant was among the potentially affected employees. The potentially affected employees were afforded an opportunity to accept voluntary separation packages (VSP).
On 30 March 2020, the Applicant was given a VSP agreement, but he did not sign the agreement at the time. The agreement provided for an ex gratia and other payments to be made to the Applicant and it contained a full and final settlement clause.
On 20 April 2020, the Applicant signed the agreement. This is the same day he admitted that he committed a significant and elaborate fraud against the Respondent and that he had stolen GBP 500 000 from the Respondent.
In terms of the agreement, the Respondent was to pay specific amounts to the Applicant and when payment was not made in accordance with the agreement, the Applicant approached this Court on 20 October 2020 for an order to make the agreement an order of Court.
The application is opposed and in the opposing papers, the Respondent provided a background to this application and submitted that the application is fundamentally defective and ill-conceived mainly because the agreement is not a settlement agreement as contemplated in section 158(1)(c) read with section 158(1A) of the LRA and because the validity and enforceability of the agreement is disputed. It is evident that the Respondent’s defence to the Applicant’s application is inter alia that he failed to disclose material facts at the time when the agreement was entered into, which facts, if they were known at the time, would have caused the Respondent not to enter into the agreement. The Respondent entered into the agreement after it was induced to do so by a material misrepresentation and it subsequently elected to resile from the agreement, which was therefore rendered non-existent, invalid and unenforceable.
Applicable legal principles and analysis
Section 158(1)(c) of the LRA empowers the Court to make any arbitration award or settlement agreement an order of the court. This section must be read with section 158(1A), which defines the settlement agreement for purposes of section 158(1)(c) as a written agreement in settlement of a dispute that the party has the right to refer to arbitration or the Labour Court.
Section 191(1) and (5) of the LRA provide that a dispute about an unfair labour practice or the fairness of a dismissal relating to the employee’s conduct or capacity may be referred to the CCMA or bargaining council for arbitration and disputes where the reason for dismissal relates to an automatically unfair dismissal, operational requirements, participation in unprotected strike action or specified issues regarding trade union membership may be referred to the Labour Court.
In Fleet Africa (Pty) Ltd v Nijs, the Labour Appeal Court (LAC) relied on the earlier LAC decision in Greeff v Consol Glass (Pty) Ltd (Greeff) and reiterated that section 158(1)(c) must be read with and subject to section 158(1A). Properly interpreted, the Labour Court may make any arbitration award an order of court and may only make settlement agreements which comply with the criteria stated in section 158(1A) orders of court.
In Greeff, the LAC held that:
‘[19] It is thus clear from a reading of s 158(1A) that s 158(1)(c) must be read with and subject to s 158(1A). Even though s 158(1)(c) refers to ‘any settlement agreement’ this cannot be taken to mean, literally, ‘any’ settlement agreement. Section 158(1A) describes what settlement agreements are being referred to in s 158(1)(c). So properly interpreted, in terms of s 158(1)(c), read with s 158(1A), the Labour Court may make any arbitration award an order of court and may only make settlement agreements, which comply with the criteria stated in s 158(1A), orders of court. A settlement agreement that may be made an order of court by the Labour Court in terms of s 158(1)(c), must (i) be in writing, (ii) be in settlement of a dispute (ie it must have as its genesis a dispute); (iii) the dispute must be one that the party has a right to refer to arbitration, or to the Labour Court for adjudication, in terms of the LRA; and (iv) the dispute must not be of the kind that a party is only entitled to refer to arbitration in terms of s 22(4), or s 74(4) or s75(7). Those kinds of dispute [sic] are excluded.
[20] It is noteworthy that s 158(1)(c) does not provide that the Labour Court is obliged to make a settlement agreement an order of court. So that even if a settlement agreement complies with the criteria stated in s 158(1A), the court may, nevertheless, in the exercise of its overarching discretion decide not to make it an order of court. Section 158(1)(c) provides that the Labour Court ‘may’ make it an order of court. This means that the Labour Court has a discretion in that regard, which it would have to exercise in a judicial manner, taking into account all the relevant facts and circumstances.
[21] Accordingly, in deciding whether to make a particular settlement agreement an order of court, it would first have to be established whether the settlement agreement satisfies the criteria stated in s 158(1A). If it does not, then the court does not even have a discretion. It cannot make such an agreement an order of court. On the other hand, if the agreement does satisfy the criteria, the court, nevertheless, would have to consider all the relevant facts and circumstances and in the exercise of its discretion decide whether to make the agreement an order of court. There may be facts or circumstances that militate against making a settlement agreement, which otherwise meets all the criteria stated in s 158(1A), an order of court.’
The obvious question that leaps out is whether the agreement signed on 20 April 2020 satisfies the criteria stated in section 158 (1A) of the LRA and should be made an order of court.
As the LAC held in Greeff, the Labour Court may only make settlement agreements, which comply with the criteria stated in section 158(1A), orders of court.
I will consider the criteria in turn. A settlement agreement that may be made an order of court must first be in writing. The Applicant presented a written document, signed by the parties as an agreement to be made an order of court.
It must secondly be in settlement of a dispute, thus it must have as its genesis a dispute, and thirdly must it be one that the party has a right to refer to arbitration or to the Labour Court for adjudication in terms of the LRA.
It is evident from the agreement that it is a voluntary separation agreement and that the Applicant’s services were terminated by way of a voluntary retrenchment. There is a clause recording that the agreement is made in full and final settlement of any claims, howsoever arising whether in contract, delict statute or any other source.
I canvassed the aspect regarding the existence of a dispute with the Applicant during his argument in Court and he submitted that the dispute is the fact that the Respondent is not paying him in accordance with the terms of the agreement. However, that is not the kind of dispute contemplated in section 158(1A) of the LRA.
The agreement of 20 April 2020 was not an agreement in settlement of a dispute that the Applicant has the right to refer to arbitration or to the Labour Court, as there was no dispute prior to the conclusion of the agreement.
The voluntary termination of an employment contract by agreement does not constitute a dismissal unless a case is made out that the employee was forced to enter into the agreement, which is not the Applicant’s case. On the contrary, he seeks to enforce the voluntary separation agreement concluded. A termination of employment in circumstances where an employer and employee agreed to terminate a contract of employment by mutual consent, does not constitute a dismissal as the contract terminated as a consequence of the parties’ own agreement. In the absence of a dismissal or any other cause of action in terms of the LRA, there is not a dispute that the Applicant has the right to refer for arbitration or to this Court.
Not every termination of an employment relationship gives rise to the right to refer a dispute for arbitration or adjudication by this Court as not every termination constitutes a dismissal.
In casu, considering all the facts, I am not satisfied that the settlement agreement the Applicant seeks to make an order of Court complies with the criteria and the statutory requirements set out in section 158 (1A) of the LRA. As the settlement agreement does not satisfy the criteria stated in section 158(1A), this Court does not have a discretion and cannot make such an agreement an order of court. The application must fail.
Insofar as costs are concerned, this Court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of law and fairness. Mr Itzkin for the Respondent did not press for a cost order and in my view, the interests of justice will be best served by making no order as to costs.
In the premises, I make the following order:
Order
The application is dismissed;
There is no order as to costs.

___________________________
Connie Prinsloo
Judge of the Labour Court of South Africa

Appearances:
For the Applicant: In person

For the Respondent: Advocate R Itzkin
Instructed by: Keith Sutcliffe and Associates Attorneys

Shout out to my newest followers! Excited to have you onboard! Niki Greek

'Illegal' salary increases must be repaid

By Richard Brown

12 Mar 2024

Staff of the Mhlontlo local municipality in the cash-strapped Eastern Cape must have been delighted to get increases, back-dated and across the board, but after some months, the council said it had made a mistake. Those whose salaries were wrongly paid at the higher rate would have to pay back the money, the council said.

But was the municipality allowed to do so?

Or would two senior employees, whose pay was being docked to refund the mistaken increases, persuade the courts that it was unfair and a breach of their employment contract?

Supreme Court of Appeal judgment

Many readers of this Supreme Court of Appeal (SCA) judgment could find their sympathies lying instinctively with one side – before reading the full facts.

In a nutshell, as laid out in the first couple of paragraphs of the decision, two senior employees of a municipality in the Eastern Cape were among many other staff who were overpaid, and their employer, the Mhlontlo Local Municipality, wanted to get the money back.

What could make readers feel sympathy for the two employees is this: they were given seven months to repay more than R210,000.

That would be more than R30,000 a month, and not many people have the means to slice that amount off their income for seven consecutive pay checks.

But as often happens with legal disputes, the story is more complicated than this.

Increases declared an irregular expense

The origins of the case go back to March 2019, when the municipality decided to pay its employees a 2.5% increase on their basic salaries.

Not just that – the increase would be backdated to 2015. Among the staff affected were the municipality’s chief traffic officer, Gcinikhaya Ngcangula, and the municipality’s deputy director: local economic development, Malibongwe Nqeketho.

Then the auditor-general declared that these increases had been an irregular expense.

In response, the municipality informed its employees that the increases already paid would be deducted from their salaries over the next few months.

Ngcangula and Nqeketho decided to take legal action against the municipality in the high court and launched two separate cases, based on similar facts.

Their complaint was that their employer had made what were essentially ‘unauthorised deductions’ from their salaries in February 2021.

Employees ‘weren’t legally entitled to the increase’ – municipality

Their disputes were heard first in the high court, where the presiding judge, deputy judge president, Zamani Nhlangulela, consolidated them into one case.

Putting its position, the municipality justified the deductions on the grounds that the two employees had been ‘overpaid’.

They weren’t in fact legally entitled to the increase and the municipality was thus obliged to get the money back from them, the council argued.

No written agreement by employees, so deductions ‘unlawful’ – claim

But for the two officials, and the high court, it was a simple, obvious matter that had to be resolved in favour of the employees.

This was because the Basic Conditions of Employment Act (BCEA) says that an employer may only make deductions from an employee’s salary where the employee has agreed in writing to the deductions, or where it is legally necessary, for example, following a court order.

In this case, there had clearly been no such written agreement by the employees, and so the deductions weren’t lawful, according to argument by the legal team representing the two staffers.

The high court agreed. Summarising the council’s position, Nhlangulela said that according to the employer, to qualify for the notch increment, employees had to undergo job evaluation in terms of a municipal programme that had started, but hadn’t been completed, by the time the increases were granted.

In other words, although the municipality granted the 2.5% notch increases, the salaries and car allowances shouldn’t actually have gone up, because the employees hadn’t met the ‘conditions prescribed under the grant’.

Municipality had ‘no right’ to reduce pay – high court

But this argument didn’t square with the conditions stipulated for salary reductions in the BCEA, said the judge, who found that the employees had a right to be paid the agreed salary and car allowance and the municipality had ‘no right’ to reduce their pay unilaterally.

He ordered that the employer continue paying the increased salary to the employees.

And he said that since the municipality had acted unlawfully, forcing the employees to find funds to go to court, it was only right that the employer be ordered to pay the costs on a punitive scale.

At first the municipality said it wouldn’t appeal, and even decided to ‘condone’ the contested payments. But it later asked to test the high court’s decision on appeal after all.

Agreeing to hear the matter, the appeal court said that the basis on which the high court had decided the matter had already been ‘found wanting’ in both the Labour Court (LC) and the Labour Appeal Court (LAC), and the issue was thus far from merely academic.

Was the increase a ‘term of employment contract’?

In the view of the SCA judges, the key issue was whether the notch increment was a ‘term of the employment contract’.

The municipality said it wasn’t and that it was a payment ‘erroneously made to all municipal employees as opposed to only those who qualified’.

The municipality also said that the two staffers who took the dispute to court hadn’t established that they had a ‘contractual entitlement’ to the increase.

All the evidence indicated that the notch increment was payable only to those who ‘met the qualifying criteria’, and these two staffers did not do so. Writing for a unanimous court, acting appeal court judge Mahendra Chetty said, “Payment made erroneously to [employees] cannot give rise to a contractual entitlement,” and to hold otherwise would effectively “entrench an illegality and permit [employees] to enforce continued payment into the future.”

The LC and the LAC had also considered the municipality’s dispute with employees over this issue and the latter had concluded that council’s resolution to pay a ‘2.5% notch increase’ to all its employees was ‘fundamentally irrational and illegal’ [and] also ‘reckless’. It also held that the municipality was ‘constitutionally obligated’ to ensure that the money was recovered.

High Court decision ‘cannot stand’

The two employees had ‘no lawful entitlement’ to the increase because they didn’t meet the qualifying criteria, said Chetty. “Accordingly, the decision of the High Court cannot stand.”

As for the punitive costs order made against the municipality by the High Court, the SCA judges didn’t agree. “There is no suggestion that the conduct of the municipality was dishonest or fraudulent, justifying a punitive order for costs.”

“The fact that employees elect to litigate against their employer and incur costs in the process, is no justification for a punitive order for costs,” said Chetty, concluding that the High Court erred in making its costs order.

Where should one's sympathies lie?

So, although a reader’s initial instincts might have been to sympathise with the employees who had to pay back the money, there are other facts that a reader has to consider as well: taxpayers and the municipality’s rate payers whose funds were wrongly, and therefore wastefully, channelled into increases the council had no right to pay.

It’s only right that public money be properly spent and accounted for, even if it makes for temporary difficulties when individual employees must repay what they hadn’t fairly earned.

But wherever one’s sympathies, this judgment could well have implications for its readers.

The SCA concluded that an increase, paid in error, even over a long period, can’t become part of one’s employment contract. And that, for even the most optimistic reader, could change one’s view of any future increase in salary. You’d be justified in feeling concerned about whether it’s real, legitimate and permanent, or whether, as happened here, it will end up having to be repaid.

Employers have been warned that defying a CCMA judgement can cost millions.

In a recent Johannesburg Labour Court case, a director at a Spar in Johannesburg was fined R1 million for contempt of Court after refusing to reinstate an unfairly dismissed worker.

“The worker had won an arbitration award ordering his reinstatement. However, despite the arbitration award being enforced as if it were an order of the Labour Court in terms of section 143 of the Labour Relations Act, Spar failed to rehire him,” said Tertius Wessels, Legal Director at Strata-g Labour Solutions.

“This blatant disregard for the law prompted the worker’s union, ECCAWUSA, to file a contempt application against Spar and the employer.”

The Labour Court found the employer personally liable for the contempt, remarking that employers generally treat arbitration awards with respect. The Court also criticised Spar for trying to advance technical arguments in court” to avoid complying with the order.

The Court said that there are four elements that are necessary for a contempt order:

Existence of the order: The arbitration award ordering the employee’s reinstatement was clear and valid.
Service of the order: Spar acknowledged receiving the order, and the employer’s email address was included in the communication.
Non-compliance with the order: Despite the order, the employee was not reinstated.
Wilful and mala fide non-compliance: The Court found the employer’s actions to be deliberate and in bad faith.
Although the employer’s lawyer tried to argue that the application failed to address how the order was served, the Court said that this defence was technical and flimsy, with additional evidence showing that the employer, as the responsible director, was aware of the order via an email sent to Spar.

In addition, the Court said that the employer’s refusal to reinstate the employee was driven by “harassment” and “fatigued and flimsy reasons.” This behaviour and the attempts to delay compliance via technicalities were deemed enough for a significant penalty.

Wessels said that the R1 million fine serves as a strong deterrent against future contempt cases, with the Court also ruling that the employee had to be reinstated within 30 days.

“This case has important implications for both employers and employees. It sends a clear message to employers that ignoring court orders will not be tolerated and could result in severe financial penalties. For employees, it reinforces the principle that they have recourse to legal mechanisms to address unfair treatment,” he added.

“Beyond the legal implications, the case also highlights the human cost of unfair dismissal. The employee was deprived of his job and livelihood, and it took significant legal effort to secure his reinstatement. This underscores the importance of fair labour practices and the need for employers to treat their employees with dignity and respect.

I am sure you're often faced with the defence of *double jeopardy*. Where new evidence emerges in the case where same set of facts that led to the acquittal of the applicant does not preclude the employer from holding a further disciplinary hearing. Read http://www.saflii.org/za/cases/ZALCJHB/2023/63.html
The Labour Court in this case sanctioned a new disciplinary hearing in related but different charges. These charges emanated from information tendered by the employee at arbitration.

The Court (on review) found that the charges against the employee in the second disciplinary hearing emanated from information that the employer *did not have at its disposal at the first disciplinary hearing*, i.e. the sharing of passwords and that it only became aware of this information as a result of the employee’s evidence at the first arbitration. Furthermore, the Court held that the charges in the two disciplinary hearings were different. In the first disciplinary hearing, the charges centred around attempts to access the employer’s bank account, whereas in the second disciplinary hearing, the charges centred around the sharing of passwords and the failure to comply with the employer’s IT policy. This resulted in the employee’s computer being used for fraudulent activities which exposed the employer to risk.

The Court ultimately ruled that the employee’s interpretation of the first arbitration award and subsequent reliance on the defence of double jeopardy was “opportunistic” and found against the employee on this issue.

Conclusion

The Court confirmed that, *in considering allegations of double jeopardy, fairness remains the yardstick against which the employer’s conduct must be tested*. It would be unfair if an employer was precluded from convening a second disciplinary hearing after it has “received new evidence of a significant nature” which would have influenced the outcome or sanction of the first disciplinary hearing.

The Court further confirmed that, in cases where the charges in the two disciplinary hearings are distinct, the defence of double jeopardy would not be applicable, because each hearing is a new hearing and must be decided on its own merits. This is the case even if the charges emanate from the same set of facts or event/s. The critical lesson for employers who find themselves having to charge an employee twice for misconduct emanating from the same set of facts or `event/s is that employers must ensure that the charges are not the same and/or that further evidence has become available to substantiate the charge.

Also of interest is the Court's implicit acceptance that employees can be subjected to further disciplinary action based on evidence that emerged during arbitration proceedings, even if this evidence was provided by the employees themselves.

Have a nice day

Saber Ahmed Jazbhay
15.5.2023

SAMWU obo A N Malatsi v South African Local Government Bargaining Council and Others (JR 1211 / 2018) [2023] ZALCJHB 63 (13 March 2023) A N MAFA N.O.                                                        Second Respondent

New threshold for employee rights in the BCEA..

DISMISSAL FOR INSUBORDINATION

Refusing to submit report on vehicle usage – Given extensions for deadline Refusal to obey the employer’s instruction was willful, serious and warranted dismissal.

Masscash ta Jumbo Cash and Carry v Mtsotsoyi [2022] ZALAC 117 at [23]-[48]

Facts:

Masscash provides company vehicles with tracking devices to its employees who are required to travel for work purposes.

Employees are allowed to use the vehicles for private trips, provided the mileage of these trips did not exceed 30% of the total mileage.

Irregularities were noticed with the usage of Mr Mtsotsoyi’s vehicle and he was required to submit a report on his business and private trips.

Despite extensions for the due date, he failed to submit the report.

A hearing found him guilty of gross insubordination and he was dismissed.

Appeal:

The arbitrator at the CCMA found that the six-week time frame to produce the report was reasonable, that Mr Mtsotsoyi was grossly insubordinate in not carrying out the instruction, and his dismissal was substantively fair.

The Labour Court found his dismissal substantively unfair and replaced with the order with one reinstating Mr Mtsotsoyi retrospectively to the date of his dismissal.

Masscash appeals.

Discussion:

The offence of insubordination; that Mr Mtsotsoyi repeatedly and willfully defied the instructions of his employer to provide it with the details of the business and private trips; and that the instructions were explained on at least three occasions, which he fully understood, as conceded.

Findings:

That Mr Mtsotsoyi was never charged or found guilty of any irregularities or dishonesty does not detract from the fact that his refusal to obey the employer’s instruction was willful, serious and warranted dismissal.

He was afforded ample time to comply, yet he willfully defied the instruction.

The Labour Court accordingly erred in concluding that the sanction of dismissal was inappropriate.

Order:

The appeal is upheld and the order of the Labour Court replaced with one dismissing the review application.

KATHREE-SETILOANE AJA (SUTHERLAND JA and COPPIN JA concur.)

Misconduct – Dishonesty Unpacked

In a disciplinary process, the length of service of the employee counts a lot especially when the offence is not clearly dismissible.

The case of Austin-Day v ABSA Bank Ltd and Others (PA02/2020) [2022] ZALAC 6 (8 March 2022) illustrates this fact.

At the time of her dismissal, the employee was employed by ABSA as a Branch Manager. She was charged and dismissed for misconduct, which was alleged to involve dishonesty and failure to comply with the bank’s policies and procedures in the ex*****on of her duties as a Branch Manager.

At the time of the employee’s alleged misconduct, she had been in the employment of the bank for approximately thirty-three years with an unblemished record.

During her employment as the Branch Manager at 6th Avenue, Walmer Park, the employee 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 account holders.

They were then recorded as activated accounts in the branch’s books and, as such, constituted sales in terms of the branch’s performance.

The accounts were used predominantly by customers falling within the low-income group.

Each of the bank’s branches had sales targets that were recorded when a newly opened account is activated.

During a routine visit to the branch by the Area Head Manager of the bank, the employee voluntarily informed him about the deposits in question.

The bank’s forensics department investigated the matter and confirmed that they could not detect any fraudulent conduct and made recommended that remedial action should be taken.

An operations consultant recommended disciplinary action against the employee. She was charged with two counts of alleged misconduct.

Following a disciplinary enquiry, the employee was found guilty and dismissed…..‘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 than dismissal ZERO-TOLERANCE’.
Aggrieved by the decision, the employee referred an unfair dismissal dispute to the CCMA.

The employee challenged the substantive fairness of her dismissal. The Commissioner found against her in relation to the central issue of whether or not the employee had acted dishonestly.

The Commissioner further made a finding that even if the employee had transgressed any such policies, dismissal, these such circumstances, had been unfair, and that the employee deserved to be reinstated.

Accordingly, the dismissal was found to be procedurally fair, but substantively unfair, and the employer was ordered to reinstate the employee in its employ on terms and conditions no less favourable to her than those that governed the employment relationship immediately before her dismissal.

The employer filed a review application in the Labour Court (LC). The LC concluded that the decision of the Commissioner was not a reasonable one.

On appeal to the Labour Appeal Court (LAC), the LAC had to determine whether - based on the material that was before the Commissioner - the LC had correctly concluded that the Commissioner’s conclusion was one that a reasonable decision-maker could not reach.

The employer’s contention was that the employee acted dishonestly because she stood to gain by her actions, in that the branch would then meet the target.

The evidence that was led further established that the employee, of her own accord and while the Area Head Manager was doing a routine inspection, informed him that she had opened accounts.

She did this in an acknowledgement-seeking manner for her actions.

This evidence was the basis on which the Commissioner found that the dismissal was unfair.

The LAC found that the employer’s submission that the employee wanted to deceive the bank by boosting her branch’s sales, and that she was in trouble with her performance, was not substantiated.

The employee’s performance target, or “bucket” for transaction accounts, already stood at 103% on a year-to-date basis at the time of the incident.

At best she stood to boost that figure to 105%.

There was nothing on record that indicated that the employee stood to gain any kind of reward as she had added ten accounts.

There was no performance bonus or other kind of incentive that was within reach at the time that could be achieved by the artificial addition of the ten savings account.

There was undisputed evidence that she wanted to motivate her staff.

There was no evidence that the employee acted in bad faith or that by her actions she exposed the bank to any material risk.

On the other hand, the Commissioner found the employer - as the custodian of its policies and the legislation relied upon - should have contacted the nine clients who did not operate the accounts, stating that their accounts had been accessed by a private person and activated and - for that reason - had to be de-activated, or that they may open new accounts or something to that effect.

If there was any misconduct, it was not serious enough to warrant dismissal.

The employee’s unblemished record of thirty-three years of service also speaks for itself and mitigates against the sanction of dismissal.

It is well known that once it is found that the dismissal was substantively unfair, reinstatement is the primary remedy envisaged by the Labour Relations Act (LRA).

The appeal succeeded and the award of the Commissioner was upheld.

In this case, the evidence in favour of the employee is her own admission of what she did.

In addition, she had nothing to gain from depositing minimal amounts into the accounts and she had 33 years of unblemished service on her record.

By: Andrew Goldberg