ABSA Bank Ltd v Austin-Day and Others (PR 158/17) [2022] ZALCPE 5 (14 March 2022)

ABSA Bank Ltd v Austin-Day and Others (PR 158/17) [2022] ZALCPE 5 (14 March 2022)

The court found that the commissioner erred by focusing on the manner in which the first respondent made the deposits rather than the intention behind the conduct. The evidence established that the first respondent knowingly made irregular deposits into customer accounts without their knowledge or consent, which constituted dishonesty. The commissioner failed to properly consider the critical issue of intention and the effect of the conduct on the employment relationship. The court held that the award was not one that a reasonable commissioner could reach and that the dismissal was substantively fair given the breach of trust inherent in the conduct.

Citation
[2022] ZALCPE 5
Parties
Applicant: ABSA Bank Ltd; Respondent: Felicity Austin-Day; Respondent: Theodorus Potgieter N.O.; Respondent: CCMA
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
14 March 2022
Case Number
PR 158/17
Procedural Posture
Review Application / Opposed Review of CCMA Arbitration Award
Outcome
Application for review succeeded; arbitration award set aside and replaced with order that dismissal was substantively fair.
Judges
G N Moshoana
Legal Topics
Unfair Dismissal, Dishonesty in Employment, Arbitration Review, Commissioner Reasonableness
Labour Law Civil Procedure Unfair Dismissal Dishonesty in Employment Arbitration Review Commissioner Reasonableness

Case Brief

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Parties

ABSA Bank Ltd

Applicant

Felicity Austin-Day

Respondent

Theodorus Potgieter N.O.

Respondent

CCMA

Respondent

Procedural Posture

Review Application / Opposed Review of CCMA Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award finding the dismissal of the first respondent substantively unfair was reasonable.
  2. 2 Whether the commissioner failed to properly consider evidence of dishonesty and intention.
  3. 3 Whether the dismissal of the first respondent was substantively fair.

Ratio Decidendi

The court found that the commissioner erred by focusing on the manner in which the first respondent made the deposits rather than the intention behind the conduct. The evidence established that the first respondent knowingly made irregular deposits into customer accounts without their knowledge or consent, which constituted dishonesty. The commissioner failed to properly consider the critical issue of intention and the effect of the conduct on the employment relationship. The court held that the award was not one that a reasonable commissioner could reach and that the dismissal was substantively fair given the breach of trust inherent in the conduct.

Court Disposition

Application for review succeeded; arbitration award set aside and replaced with order that dismissal was substantively fair.

Orders

  • The arbitration award issued by the second respondent dated 24 August 2018 under case number ECPE8118-16 is reviewed and set aside.
  • It is replaced with an order that the dismissal of Felicity Austin-Day is substantively fair and her claim for unfair dismissal is dismissed.