African Bank had policies, procedures and controls on its  ‘Junction’ intranet regarding the processing of loans supposedly to safeguard the bank, investors, employees and clients.   Duties were separated to prevent errors or fraud.  Employees responsible for reviewing loan applications could not capture them.   The branch manager had to review loan applications before approving them and so was prohibited from capturing them.   There were also control measures relating to the sharing of passwords that applied to all employees. In terms of the policies all managers had to ensure that all employees were aware of the policy and  complied with it.   Managers were obliged to report any breaches of the policy.   But the most senior employee of the Pan African branch, the branch manager, denied having access to the intranet.

During an investigation at the Pan African branch it transpired that the branch manager was using the passwords of consultants to capture loans.   The Bank also alleged that the branch manager received part of the commissions from the consultants.   After being suspended and allowed to respond to the allegations the branch manager was dismissed.   During the arbitration at the CCMA the branch manager argued that the Bank ‘had not lost anything as a result of her actions, and that by sharing passwords, the [Bank] had instead gained from her actions as the sales consultants met their high targets’.

The CCMA commissioner found that the Bank had not proved that the reason for dismissal was fair.   The rule had not been consistently applied and there was no evidence to prove that the trust relationship had been irreparably broken.   On review in African Bank  v Magashima  (JR2419/12) [2014] ZALCJHB 298 (5 August 2014)  the labour court set aside the award and found that the reason for dismissal was substantively fair.

Extracts from the judgment [footnotes omitted and SAFLII links added]

[23]        As correctly pointed out on behalf of the Applicant, and further in reference to SATAWU & Others v Ikhwezi Bus Service (Pty) Ltd, an employer is indeed entitled to impose different penalties on different employees who had committed the same misconduct, provided there was a fair and objective basis for doing so.

[25]        In my view, the submissions made on behalf of Magashima are akin to an employee claiming inconsistency and expecting to be automatically absolved from the consequences of her misconduct.   It appears that the Commissioner was clearly persuaded by this mere allegation and fell into the trap that Sidumo warned against, i.e. that Commissioners should not approach the matter on the basis of what decision they would have made had they been the employer.   A commissioner’s task as explained in Sidumo is not to ask what the appropriate sanction is but whether the employer’s decision to dismiss was fair.   It is apparent that the Commissioner from his reasoning and conclusions reached misconstrued his mandate and failed to take into account essential material facts, and came to a conclusion which a reasonable decision could not have come to on the material before him.   In this judgment, these conclusions are based on the following:

25.1        It was common cause that Magashima as the Branch Manager occupied a fairly senior position.   She managed the whole branch and as such, had overall authority.   To this end, her position can hardly be equated to that of Simelane or Maphiri, who were her subordinates, and who were obliged to take instructions from her.   In the face of a claim of inconsistency, it was apparent that given Magashima’s managerial position, her authority over Simelane and Maphiri, and her general role in the branch, there was justification to treat her differently despite the fact that all three of them had breached the rules and policies regarding the sharing of passwords.

25.2        In failing to make the distinction as above, the Commissioner further failed to take into account evidence led in respect of Magashima’s role and responsibilities at the branch, and further that in that position, Magashima was clearly in a position of not only authority but trust.   It cannot therefore not be doubted that the Applicant trusted Magashima as the overall authority and custodian of its rules and policies that she would adhere slavishly to those policies and rules, and lead by example.   On the contrary she not only contravened those rules and policies but also encouraged her subordinates to do the same.

25.3        The nature of the applicant’s business being a bank, required strict financial controls, and the importance of the policy surrounding the sharing of passwords is self-evident.   It is further apparent that the consequences of non-compliance with these strict controls could be far reaching in that it left the Applicant susceptible to fraud and other related misdemeanours.

25.5        The Commissioner’s further conclusion that Magashima’s conduct had instead assisted the Applicant in achieving its targets is clearly unreasonable not supported by facts.   This in my view indicates the Commissioner’s failure to appreciate his mandate insofar as identifying the issues and dispute he was required to determine.   Once a Commissioner misconstrues the nature of the enquiry before him or her, the result will invariably be unreasonable.

25.6        The issue before the Commissioner was whether the dismissal of Magashima was for a fair reason based on the misconduct in question.   Magashima’s motives or reasoning behind committing the misconduct in question was clearly irrelevant for the purposes of answering that question.   The Commissioner was satisfied that the Applicant had discharged the onus of proving the misconduct in question, and all that he had to determine was whether the dismissal was fair.   By relying on Magashima’s motives or reasons for committing misconduct in concluding that her dismissal was unfair, the Commissioner committed a reviewable irregularity.

25.7        The above conclusions are also linked to the Applicant’s contentions that the Commissioner committed an irregularity by completely disregarding the evidence surrounding whether Magashima was paid part of the commission generated by the sales consultants.   Nowhere in his analysis did the Commissioner deal with this aspect of the evidence, even though it was common cause that such evidence was proffered by way of a statement made by Simelane.   Even if the Commissioner was correct in disregarding the evidence, at the very least, it was required of him to state the reasons for doing so.   Furthermore, in arriving at his conclusions, the Commissioner appeared to have disregarded the evidence surrounding whether Magashima had instructed Simelane to sign the loan applications to make it as though he had consulted with a client.