By Teboho Mokoena

In the previous article, we looked at the case of Felicity Austin-Day a Walmer Park, Gqeberha, ABSA Branch Manager who had deposited money (R100) into 10 inactive accounts at the branch that was under her supervision. For the sake of continuity, let us briefly recap of the facts around this case. As mentioned above, Felicity deposited R100 into 10 such inactive accounts. Based on this specific bank’s operating systems, the act of depositing money into these accounts, which until then had been deemed dormant, resulted in these accounts being rendered active. This was done without the knowledge or approval of the respective customers.
Felicity was subsequently charged on two counts:
Count 1: It is alleged that you acted dishonestly, in the execution of your duties as a branch manager of ABSA, 6th Avenue, Walmer Park, when you made irregular cash deposits into customer accounts.
Count 2: It is alleged that you failed to adhere to the Group’s laid down policies and procedures in the executions of your duties as a branch manager.
Felicity was found guilty and subsequently dismissed. She challenged, on substantive grounds, the basis of her dismissal through the CCMA. The CCMA ruled in her favour. The bank referred the matter to the Labour Court (LC).
As stated in the previous column, the LC set aside the arbitration award and ruled that her dismissal had been substantively fair, and dismissed her unfair dismissal claim.
This article seeks to have, as its area of focus, the rationale behind the above decision by the LC, notwithstanding the fact that a higher court, the Labour Appeals Court (LAC) was to later overturn the decision of the LC.
It is my considered opinion that, in the context of workplace law, the issues raised by the LC are critical.
It determined that the real issue that had to be decided upon was whether the act of making deposits, in or of itself, could be classified as being dishonest.
It was common cause that the deposits were irregular as it was an established industry norm and practice that bank officials could not, and ought not, make the deposits into customer’s accounts. Importantly, Felicity knew this, but nevertheless went ahead and made the deposits. In her defence, she sought to rely on the following points:
● She saw the deposit as a way of motivating her staff.
● She had used her own money.
● She had been transparent in doing so, to a point where she even brought this to the attention of her seniors.
● The bank had not suffered any loss or prejudice.
The LC however, while noting the above, was, and rightly so, critical of how the CCMA had examined the evidence before it.
It noted that in essence, the CCMA, in arriving at its decision, focused on how Felicity had made the deposits, not why she had done so and thus could not arrive at a proper determination whether she had acted dishonestly, or not.
Accordingly, the LC zoomed in on this issue. In placing greater focus on the WHY (motive), the LC sought to establish, based on the facts, Felicity’s state of mind when she made the deposits.
The LC held that in a criminal law context, there needs to be a causal link between what is referred to as actus reus (action or conduct, which is a constituent element of a crime) and mens rea (intention or knowledge of wrongdoing, which constitutes part of the definition of a crime).
In probing the issue of dishonesty further, the LC looked at the dictionary definition of dishonesty. According to the “New Shorter Oxford English Dictionary on historical principles, edited by Lesly Brown Volume, dishonesty is defined as an act of a person lacking in probity or integrity, untrustworthy, apt to steal, cheat, lie or act fraudulently.
Based on the above, the LC then posed pertinent questions:
● What does one call the irregularly depositing of funds into the accounts of customers without their knowledge and consent, and to do so knowingly so?
● Could it be said that in the activating these dormant accounts, Felicity knew, or could reasonably be expected to have known that this would have the net effect of increasing the number of “active” bank accounts for this particular branch, therefore strengthening the impression that her particular branch was performing at a much higher level than it actually was? At this point, it is vital to take note that the branch was operating at 84% before these accounts were activated.
● Naturally, the activation increased the percentage, and marginal as it was, as some may argue.
● Given that the accounts were not activated by the customers, could it be said that in making those deposits, Felicity knew or ought to have known that this would, in fact, cheat/mislead the system into believing that the real owners of these accounts were, in fact, keeping those accounts active, when this was not the case?
● Did Felicity consider that the owners of these accounts may no longer have wanted to conduct business with the bank? A possibility clearly supported by the fact that they had rendered their accounts inactive and that out of the 10 accounts she had made a deposit into, only one was acted upon by its real owner. Why did she not consider engaging these customers for purposes of determining whether they were still interested in doing business with the bank?
Examining the evidence before it, for purposes of answering these questions, the LC concluded, and rightly so in my view, that to suggest that Felicity had acted honestly was not a conclusion that a reasonable person possibly could arrive at.
Therefore, it concluded that she had, in fact, acted dishonestly, with the concomitant intention. In this regard, the LC opined that intention in this instance constituted necessary mens rea of a conduct that fits the term dishonesty, in that based on the facts, it could reasonably be inferred that she knew and was conscious when she made those deposits what she was intending and hoping to achieve.
As I concluded in the previous article on the same matter, this case is a rather interesting one. It raises important issues for consideration in the workplace within the context of discipline. And, while I do concede, and defer to the LAC, I am of the opinion that the principles contained in this judgment are too significant to ignore.