Francke v Siemens (Pty) Limited (JS269/14) [2017] ZALCJHB 388 (26 October 2017)

Francke v Siemens (Pty) Limited (JS269/14) [2017] ZALCJHB 388 (26 October 2017)

The court found that the applicant was guilty of misconduct, specifically negligence in failing to ensure the registration of the Zenith Bank account in Finavigate and making attestations that were incorrect. However, both the disciplinary enquiry and the forensic report commissioned by the respondent concluded that the applicant was not guilty of dishonesty. The forensic report recommended disciplinary action short of dismissal and individual training, and the disciplinary chairperson found the conduct to be dereliction of duty rather than gross dishonesty. The respondent's witness insisted on dismissal based on a breakdown of trust and lack of remorse, but the court found this...

Citation
[2017] ZALCJHB 388
Parties
Applicant: Gregor Franke; Respondent: Siemens (Pty) Limited
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
26 October 2017
Case Number
JS269/14
Procedural Posture
Unfair Dismissal Application / Trial and Judgment
Outcome
The dismissal of the applicant was substantively unfair. The applicant is to be retrospectively reinstated and issued with a final written warning.
Judges
Gush
Legal Topics
Unfair Dismissal, Consistency of Sanction, Remedy of Reinstatement, Final Written Warning, Substantive Fairness, Disciplinary Procedure
Labour Law Unfair Dismissal Consistency of Sanction Remedy of Reinstatement Final Written Warning Substantive Fairness Disciplinary Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Gregor Franke

Applicant

Siemens (Pty) Limited

Respondent

Procedural Posture

Unfair Dismissal Application / Trial and Judgment

Legal Issues

  1. 1 Whether the applicant's dismissal was substantively fair.
  2. 2 Whether the applicant's conduct amounted to gross dishonesty or gross negligence.
  3. 3 Whether the sanction of dismissal was appropriate given the circumstances.

Ratio Decidendi

The court found that the applicant was guilty of misconduct, specifically negligence in failing to ensure the registration of the Zenith Bank account in Finavigate and making attestations that were incorrect. However, both the disciplinary enquiry and the forensic report commissioned by the respondent concluded that the applicant was not guilty of dishonesty. The forensic report recommended disciplinary action short of dismissal and individual training, and the disciplinary chairperson found the conduct to be dereliction of duty rather than gross dishonesty. The respondent's witness insisted on dismissal based on a breakdown of trust and lack of remorse, but the court found this...

Court Disposition

The dismissal of the applicant was substantively unfair. The applicant is to be retrospectively reinstated and issued with a final written warning.

Orders

  • The dismissal of the applicant by the respondent was substantively unfair.
  • The respondent is ordered to retrospectively reinstate the applicant from the date of his dismissal, taking into account the months' notice given.