Pretoria - A civilised system of jurisprudence should have no room for any dishonest employee to continue to reap the benefits of any institution funded by the taxpayer.
This is according to a judge, after a dishonest employee of the National Lotteries Commission was found guilty of gross dishonesty, but instead of being fired, she got a slap on the wrist.
The chairperson who headed the hearing against her convicted Boitumelo Mafonjo on two charges of gross dishonesty after she shared confidential information with outside parties regarding the commission.
She was at the time dismissed, but her dismissal was suspended for 10 years – a sanction the Labour Court sitting in Johannesburg frowned upon.
It appeared that the chairperson felt sorry for Mafonjo when it came time to sentence her. But Judge Smanga Sethene gave the chairperson a tongue lashing for not doing a proper job. The judge said the lotteries commission’s rules were very clear that in cases such as these, there was only one punishment and that was dismissal.
The National Lotteries Commission turned to the labour court to have the suspended dismissal overturned and to have Mafonjo fired with immediate effect. The commission argued that the suspended dismissal simply did not make sense and that it was irrational.
Judge Sethene commented that had elementary legal research been conducted, it would have “dawned on the chairperson that it is trite law that any misconduct peppered with gross dishonesty ought to have elbowed out Ms Mafonjo from the employ of the National Lotteries Commission”.
“Lest we forget, chairpersons of internal hearings perform administrative action and in that capacity they have to ensure that their decisions are legally sound so as to avoid burdening this court with employment disputes that in fairness ought to have been finalised at the hearing stage,” the judge said.
In slapping her with a suspended sentence, the chairperson said that Mafonjo is a first offender, a single parent with two children aged 27 and 19 years. One of them was studying accounting at a tertiary institution and did not meet the requirements for funding by the National Student Financial Aid Scheme.
The chairperson concluded that while she should be fired in terms of the commission’s policy, this should be suspended for 10 years provided that she was not found guilty of any act of misconduct similar to the ones which she was found guilty of at that time.
Judge Sethene commented that suspended dismissal is foreign in labour law, but prevalent in criminal law, in particular in the sentencing stage.
It was, among others things, argued on behalf of the commission that Mafonjo showed no remorse, instead she sought to escape accountability by alleging that she acted under duress at the time.
“The chairperson, clothed with the persona of the employer, knew and ought to have known that the applicant’s disciplinary policy categorically states that the recommended sanction for an employee found guilty of dishonesty, dismissal, is the only prescribed sanction.”
“The said policy makes no provision in any shape or form for a suspended dismissal as pronounced by the chairperson,” the judge said.
He added that for the chairperson to have expected the applicant to keep Mafonjo in its employ, with the tag of gross dishonesty on her forehead for 10 years, “assails rationality and legality in every respect.”
In quoting another judgment in an unrelated case, the judge said: “Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in a particular enterprise.
“That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.
“For the sake of the rule of law, a chairperson of an internal hearing ought to be fearless. The pursuit of justice needs stout-hearted men and women,” Judge Sethene concluded.
Pretoria News