Court clerk loses Labour Court battle after dismissal over missing R170,000 bail money
The Labour Court in Johannesburg has set aside an arbitration award that reinstated a Department of Justice and Constitutional Development employee, finding that her dismissal for gross dishonesty was substantively fair.
Acting Judge H A van der Merwe reviewed and overturned a decision by a commissioner of the General Public Service Sectoral Bargaining Council, which had ruled in favour of a former e-scheduler clerk stationed at the Randburg Magistrate’s Court.
The clerk responsible for receiving and recording bail payments. Bail payments could be made either in cash or via electronic funds transfer (EFT), and as a clerk, she was required to issue receipts and accurately record each transaction in the department’s accounting system.
In January 2017, an audit revealed a cash shortfall of R170,000. The money comprised four bail payments — three of R50,000 and one of R20,000 — which the employee admitted had been received in cash. Despite this, she recorded all four transactions as EFT payments in the accounting system, effectively concealing the cash deficit.
The court noted that this misrecording concealed the cash shortage, at least temporarily, and was admitted by the employee herself. The court said the only reasonable inference, in the absence of an innocent explanation, was that the employee had taken the money and attempted to cover up the theft by falsifying the records.
Judge Van der Merwe noted that there would have been no reason to deliberately misrecord the payments had there been a lawful explanation for the shortage.
The employee was initially charged internally with theft and gross dishonesty. While a disciplinary hearing found her guilty on both charges, an internal appeal later set aside the theft finding but upheld the finding of gross dishonesty.
Despite this, an arbitrator at the General Public Service Sectoral Bargaining Council ruled in the employee’s favour, incorrectly concluding that she had been cleared of all misconduct.
The department took the matter to the Labour Court on review, and it was found that the arbitration had committed a fundamental factual error.
“The commissioner failed to apply his mind to the facts,” the judgment stated, adding that no reasonable decision-maker could have reached such a conclusion on the evidence before him.
Judge Van der Merwe emphasised that, on the employee’s own version, the misconduct — whether characterised as theft or false accounting — clearly warranted dismissal.
The court substituted the arbitration award with a finding that the dismissal was substantively fair and dismissed the employee’s referral.
sinenhlanhla.masilela@iol.co.za
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