Standard Bank employee loses Labour Court battle after dismissal for making deposits to activate clients' accounts - IOL

Labour Court upholds dismissal of Standard Bank employee over MyMo deposits.

A Standard Bank employee who was dismissed after making deposits that activated two customers’ MyMo accounts in their absence has lost her Labour Court challenge against her dismissal.

The Labour Court in Johannesburg found that, although the CCMA commissioner made errors in his reasoning, the decision to uphold the employee’s dismissal was one that a reasonable decision-maker could reach based on the evidence.

The court consequently dismissed the review application brought by SASBO – The Finance Union on behalf of Buhle P Sikhakhane. There was no order as to costs.

Sikhakhane had been permanently employed by Standard Bank since September 2015, after having worked for the bank in various capacities through a labour broker from 2008.

At the time of her dismissal, she was a Customer Liaison Officer at the bank’s Scottburgh branch, where her duties included welcoming customers and directing them to the appropriate services.

The dispute arose from the bank’s MyMo accounts, which are aimed at lower-income and unemployed customers.

Once a MyMo account was opened, it had to be activated through a customer-initiated deposit. Standard Bank had communicated this requirement to staff in February 2020.

The activation of MyMo accounts also counted towards performance targets. Universal Bankers had sales targets, while branch performance affected the bonus pool available to staff, including Sikhakhane.

The bank later discovered, following a whistleblower report, that employees had been activating MyMo accounts without customers being present.

In March 2022, Standard Bank sent an email to staff reminding them that account activation had to be initiated by customers and that employees were not allowed to make activating deposits on their behalf.

The warning stated that 34 employees had already been subjected to disciplinary action and that some had been dismissed.

The message was sent to Sikhakhane and was forwarded to her again about 30 minutes later by her team leader, who described it as an important communication and urged staff to “do the right thing first time”.

In May 2022, Sikhakhane accompanied a Universal Banker on visits to prospective customers who were being targeted for MyMo accounts.

The court heard that the customers were generally located in rural areas or on construction sites and that Sikhakhane had accompanied the banker because she could assist with the isiZulu language.

When they returned to the branch, the Universal Banker gave Sikhakhane money and two account numbers and asked her to make deposits at an ATM.

She made the deposits, which activated two MyMo accounts while the customers were absent.

Sikhakhane knew that employees were not permitted to activate customers’ accounts on their behalf but disputed knowing that the particular accounts were MyMo accounts.

She said she had simply taken the money and followed the instructions because she was trying to be a team player.

She also said that she could not tell from the account numbers that they were MyMo accounts.

In her explanation and during arbitration, she expressed regret and acknowledged that, with hindsight, she should have asked questions before making the deposits.

Sikhakhane was charged with misconduct, found guilty at a disciplinary hearing and dismissed in November 2022.

She had approximately seven years of service at the time and a clean disciplinary record.

She subsequently referred an unfair dismissal dispute to the CCMA.

The commissioner found that she had breached Standard Bank’s rules and that she knew account activation had to be customer-initiated.

The commissioner also found that employees were not permitted to transact on customers’ accounts in their absence, regardless of the type of account.

Although the commissioner considered her length of service and clean disciplinary record, he found that the misconduct was sufficiently serious in the banking environment to affect the relationship of trust and confidence.

He rejected the argument that corrective discipline was appropriate and upheld the dismissal as substantively fair.

SASBO challenged the arbitration award in the Labour Court.

The union argued that the commissioner had misconceived the nature of the misconduct because Sikhakhane had been charged specifically in relation to the activation of MyMo accounts.

It argued that there had been no finding that she knew the two accounts were MyMo accounts and that the commissioner had instead relied on a broader rule prohibiting employees from transacting on customers’ accounts in their absence.

The union also argued that the commissioner had failed to properly consider Sikhakhane’s clean disciplinary record, length of service, lack of dishonesty or personal financial gain, remorse and the availability of progressive discipline.

It further challenged the commissioner’s assessment of her explanation.

Judge SJ Harvey found that the commissioner had indeed formulated the misconduct too broadly.

The employee had been charged with misconduct relating specifically to the activation of MyMo accounts, while the commissioner appeared to rely more broadly on a rule prohibiting employees from transacting on customers’ accounts in their absence.

However, the court found that this error did not make the outcome unreasonable.

The employee had admitted breaching the rule and had recently been expressly warned against employees activating accounts on behalf of customers.

She had also spent the morning accompanying the Universal Banker while MyMo accounts were being sold and was immediately afterwards given money and account numbers to make deposits.

In those circumstances, the court found that it was reasonable to infer that she knew what the deposits were for or, at minimum, that she should have made enquiries before carrying them out.

The Labour Court also considered the factors that weighed in Sikhakhane’s favour.

These included her seven years of service, clean disciplinary record, the absence of a finding that she acted dishonestly or for personal financial gain, her remorse and the possibility of progressive discipline.

However, the court found that these factors did not make dismissal unreasonable.

The rule had been expressly reiterated shortly before the misconduct, while the deposits involved two accounts and occurred in circumstances where Sikhakhane could reasonably have been expected to realise that they might be intended to activate MyMo accounts that had been sold that morning.

The court also considered the importance of compliance with customer-account rules in the banking environment, as well as the regulatory and reputational consequences associated with the practice that had prompted Standard Bank to intervene.

The court noted that MyMo activations contributed to branch performance, which in turn affected the bonus pool available to employees, including Sikhakhane.

Judge Harvey acknowledged that there were considerations that could have supported a lesser sanction.

However, that did not mean the dismissal was unreasonable.

Although another commissioner might have reached a different conclusion, this was not sufficient to justify setting aside the award.

“On the evidence before the commissioner, the conclusion that dismissal was substantively fair was one that a reasonable decision-maker could reach,” the court found.

The Labour Court ultimately dismissed the review application.

It found that the commissioner’s errors did not materially affect the reasonableness of the outcome and that the dismissal fell within the range of decisions a reasonable decision-maker could reach on the evidence.

The court made no order as to costs.