26 June 2023
The Johannesburg Labour Court has ruled that a National Lotteries Commission employee who was given a ten-year “suspended” dismissal for gross dishonesty, be fired. Photo: Brian Turner via Flickr (CC BY 2.0)
A client liaison officer at the National Lotteries Commission, who was found guilty of gross dishonesty, has been fired.
Johannesburg Labour Court Acting Judge Smanga Sethene set aside the sanction imposed on Boitumelo Rachel Mafonjo by a disciplinary hearing chairperson who suspended her dismissal for ten years on condition that she did not re-offend during that time.
Judge Sethene, in his recent ruling, said, “For the chairperson to have expected the applicant (NLC) to keep Ms Mafonjo in its employ with the tag of gross dishonesty on her forehead for ten years assails rationality and legality in every respect.”
The NLC sought to review the “incongruent” sanction handed down by Advocate Hor Modisa in December 2019.
Judge Sethene said that had elementary legal research been conducted, it would have dawned on the chairperson that it was trite law that any misconduct peppered with gross dishonesty ought to have “elbowed out” Mafonjo and that a “suspended dismissal was foreign in labour law”.
“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 hearing stage.”
Mafonjo was first employed by the NLC in 2003 as a cleaner. At the time that she was charged with misconduct in 2018, she held the position of client liaison officer in Mahikeng, North West.
Following the hearing, she was found guilty of gross dishonesty for extracting “confidential beneficiary” information from the system and giving it to a third party.
She was also found guilty of not reporting unlawful activities aimed at defrauding the NLC and its beneficiaries, and of not declaring her own financial interests to the NLC.
In his ruling, the chairperson held there were exceptional circumstances in the matter, that the misconduct had been initiated by others, there was no evidence that Mafonjo had financially benefited or that the NLC had suffered financial loss.
The NLC, in argument before Judge Sethene, said the sanction was irrational, given the severity of Mafonjo’s misconduct and that she had shown no remorse, claiming to have acted under duress.
Judge Sethene said the chairperson knew, or ought to have known, that the NLC’s disciplinary policy categorically stated that the sanction for dishonesty, even as a first offence, was dismissal.
Instead, he had taken into account her personal circumstances.
This was without merit.
“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. The NLC has no confidence in her continued employment and that is justifiable … an employment relationship is one of trust, mutual confidence and respect,” the judge said.
He said the misconduct was very serious and warranted dismissal.
Should the original sanction stand, it would also “open the flood gates to anarchy”, because there had to be consistency in the treatment of employees.
Ruling that Mafonjo be dismissed with immediate effect, Judge Sethene said those who chaired internal disciplinary hearings must be “fearless”.
“The pursuit of justice needs stout-hearted men and women,” he said.
