The scenario is as follows: the employee was appointed as an accountant: creditors at a municipality; Absa Bank alerted the municipality that there were possible fraudulent activities going on and the services of PricewaterhouseCoopers were used to conduct a forensic investigation; such investigation indicated that employee X, who did not have access via the internet to the municipality’s account, attempted to access such account; employee X was charged with misconduct in that he ‘failed to conduct himself with honesty and integrity by attempting to access the municipality’s account’; the employee was found guilty and dismissed; subsequently, the relevant bargaining council reinstated the employee and the municipality was unsuccessful in its attempt to overturn the arbitration award.
After reinstatement, the municipality continued to investigate the matter and, on this basis, formulated two different new charges, namely: ‘Dishonesty in deceiving the municipality by sharing your computer password with other employees whereby the computer was being used for fraudulent activities’ and/or ‘failure to comply with your employer’s IT policy by sharing your computer password with other employees resulting in the computer being used for fraudulent activities’ – employee X was dismissed by the municipality and the relevant bargaining council determined that the dismissal was fair.
With reference to the aforesaid factual circumstances, what approach did the labour court recently adopt in SA Municipal Workers obo Malatsi v Local Government Bargaining Council and Others (2023) 44 ILJ 1317 (LC); (2023) 34 SALLR 78 (LC)?
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The labour court, in the aforesaid matter, per Prinsloo J, adopted the following approach to determine whether an employer can institute disciplinary action for a second time for conduct that arose from the same set of facts:
- in BMW SA v Van der Walt (2002) ILJ 113 (LC), it was held that fairness is the only yardstick to determine whether a second enquiry is permissible – in essence, the same approach was followed in Branford v Metrorail (2003) 24 ILJ 2269 (LC) and Executive Council Finance KwaZulu-Natal v Dorkin [2008] 6 BLLR 540 (LAC)
- in SARS v CCMA [2008] 6 BLLR 540 (LAC), it was held that the second enquiry would only be invalid if not permitted in terms of an applicable instrument, such as a disciplinary code, collective agreement, etc (this approach was followed in NUM v Arcelormittal [2020] 2 ZALCJHB 167
- consequently, it was held that the dismissal of employee X was fair
