Johannesburg - A growing list of staffers complain that when it comes to dismissals of employees found transgressing its internal policies, banking giant FNB seems to apply the rules inconsistently and at whim.
Section 3 (6) of Schedule 8, of the Labour Relations Act, stipulates that the employer should apply the penalty of dismissal consistently with the way in which it has been applied to other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.
According to Mariza Bernkia, while the bank is quick to flaunt the LRA and other relevant legislation, it picks and chooses what to do with offending employees.
Dismissed five years ago for a frivolous non-reason the bank advanced as a reason, Bernkia is fighting on through the channels – from the CCMA to the Labour Court and points at the inconsistency the bank addresses the disciplinary measures of other staffers.
Bernkia, who worked as a call centre agent at the bank’s branch in Randburg, was initially accused of neglecting to assist a client.
When this was proved to be untrue, her real frustrations began.
In one email correspondence she is told: “We reiterate once again that you have not been charged with any offence or misconduct. The bank is currently investigating this incident.”
In the next email she is told: “Based on the investigation done by the bank it has been proposed that you should be suspended pending the outcome of an investigation.
“The bank has afforded you the opportunity to provide a written statement citing the reasons why you should not be suspended of which you have refused to provide.
“The reasons for your proposed suspension is grounded on allegations of gross insubordination, insolence and serious disrespect towards Ronald Smith.”
Bernkia reported directly to Smith at the time. Now Bernkia is noting that FNB staff are retained or let go for similar offences.
Now widowed and with an accumulating unpaid rent bill, Bernkia, the mother of a teenage daughter, can’t help but wonder at the inconsistency in the bank’s own disciplinary code.
“There are 11 other staff members who were suspended for a month only, they attended no disciplinary hearing and were released back to work after a month,” she says.
“Then I have a separate five staff members, who had to go through the disciplinary hearing and were dismissed, including being blacklisted thereafter. They were never brought back to work.”
Bernkia keeps a list of all workers – either dismissed or reinstated – who have consulted her.
One other bank employee, Kaylene Cockrane, had to beg for her job after others who committed similar offences – claiming undue overtime, were allowed back at work.
Bernkia is adamant FNB is flouting its own rules. She argues – with a mountain of documents to buttress her argument – that case law is on her side. She wants her job back. Among the documents she offers, one states: “The basis for the principle governing the need for consistency in discipline was laid in Gcwensa versusCCMA & others (2006), where it was stated that “disciplinary consistency is the hallmark of progressive labour relations that every employee must be measured by the same standards”.
The court also went on to say that “when comparing employees, care should be taken to ensure that the gravity of the misconduct be evaluated… ”
“In the case of NUM and another versus Amcoal Colliery t/a Arnot Colliery and another (2000), the court had to determine the fairness of the dismissal of 16 employees who had failed to comply with an instruction, the court held that “the parity principle was designed to prevent unjustified selective punishment or dismissal and to ensure that like cases are treated alike… ”
Bernkia asks the question before providing the remedy: When will a defence for inconsistency fail?
“A defence for inconsistency will fail if the employer can show a differentiation between employees who committed similar offences by, among others, the gravity of the offence, and their own personal circumstances (whether they are able to distinguish the facts of the case on other material factors, and taking into account their service record and previous disciplinary record).”
So how does an employer correct this problem if he has inconsistently applied the rule?
The documents she has cover all the gap areas.
“With the above in mind, I made out a case of historical inconsistency which was presented by Mr Smith and we now await the outcome of the hearing. Employees must know that dishonesty can be an expensive lesson; it could cost you your job, damage your good name and reputation and it hurts your conscience.”
Bernkia is hopeful that she’s not fighting a losing battle: “To all employers, remember to apply sanctions at the workplace consistently, as you could land up with an award of compensation made against you or re-instatement of the aggrieved employee.”
FNB is aware it sits with a problem that extends beyond Bernkia and Cockrane cases.
In a response via email, the bank says: “FNB can confirm that every case of alleged misconduct is investigated extensively and that all its internal disciplinary processes are applied in accordance with the relevant laws.
“To protect the rights of both FNB and the individual, the Bank cannot provide any further details on the matter.”
Sunday Independent