The labour court has set aside a disciplinary hearing ruling that was meant to suspend the dismissal of a National Lotteries Commission (NLC) employee charged with dishonesty.
Boitumelo Rachel Mafonjo, the NLC’s client liaison officer in Mahikeng, North West, had in 2019 been found guilty of gross dishonesty and breach of contractual obligation after a disciplinary hearing.
However, the chairperson of the disciplinary hearing, adv Modisa SC, had ruled that Mafonjo should remain in the employ of the NLC.
“The employee [Mafonjo] is dismissed from her employment with the NLC, which sanction is suspended for a period of 10 years on condition that she is not found guilty of any act of misconduct similar to the ones which she was charged and found guilty of,” reads Modisa’s ruling.
This resulted in the NLC heading to the labour court to review the ruling.
Acting labour court judge Smanga Sethene last week ordered that Mafonjo, who started working at the NLC in March 2003 as a cleaner and was appointed as a junior grant officer in November the same year, should be dismissed from work.
Laying into the hearing’s chairperson, Sethene said: “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 Mafonjo from the employ of the NLC.”
Mafonjo had argued in court that Modisa did not commit any irregularity as the sanction is an alternative to dismissal. In sum, Mafonjo prays that this review application must be dismissed with costs. The chairperson filed a notice to abide.
Mafonjo was charged with gross dishonesty after she, between March 2018 and August 2018, misused the NLC’s property for personal and/or another person’s gain by, among other things, extracting confidential beneficiary information from the grant management systems, for personal and/or another person’s gain, while she knew or ought to have known that it was wrongful to do so.
She was also accused of breaking the law by publishing or causing to be published confidential information relating to the NLC and its beneficiaries to a third party while acting outside the official functions in the NLC.
Mafonjo also allegedly failed or neglected to declare her financial interest to the employer.
After receiving written submission on aggravating and mitigating circumstances, Modisa said Mafonjo was a first offender, a single parent with two children aged 27 and 19 and the latter was studying accounting at a tertiary institution, and she didn’t meet the requirements for funding by the National Student Financial Aid Scheme.
Modisa said there was no evidence that Mafonjo financially benefited from the misconduct or that the “NLC suffered financial loss flowing from the employee’s acts of misconduct”.
Sethene ruled on Friday that: “This suspended dismissal, which is foreign in labour law but prevalent in criminal law, in particular in the sentencing stage, is the one the applicant seeks this court to review and set it aside and duly substitute it with the order summarily dismissing Mafonjo.”
The NLC argued in court that Modisa’s ruling was irrational and unreasonable given the severity of the misconduct committed by Mafonjo..
Sethene said Modisa knew and ought to have known that the NLC’s disciplinary policy categorically stated that the recommended sanction for an employee found guilty of dishonesty as the first offence, dismissal is the only prescribed sanction.
“Mafonjo’s children are adults and not minors. For the chairperson to have accorded this personal circumstance as exceptional, lacks merits. 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.
“What the chairperson ignored to apply his mind on is that Mafonjo had fiduciary responsibility towards the applicant during the subsistence of the employment relationship,” said Sethene.
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