Marital strife and the workplace
By Amien Hoosain
Mahlakoane v South African Revenue Service, a judgment of the Labour Appeal Court (LAC) on 25 January 2018, dealt with an employer dismissing an employee for fraud unrelated to the employer.
In 2000, Ms Mahlakoane, then unemployed, applied successfully to the South African Social Security Agency (SASSA) for child support grants for her two children. In 2006, she was employed by SARS, and accordingly her entitlement to the child support grants ceased. But she continued to draw the grants.
In 2008, SARS became aware of Mahlakoane unlawfully drawing the grants, and charged her in a disciplinary hearing (the first disciplinary) with fraud, alternatively breaching the SARS Disciplinary Code. Her defence was that she had duly informed SASSA of her employment, and she produced certified copies of two letters on the letterhead of SASSA, dated 2 October 2006, stating that the grants had ceased. She was acquitted of the charge of fraud, but was found guilty of breaching the Disciplinary Code for continuing to accept the grants. She was given a final written warning.
In 2010, Mahlakoane and her spouse experienced marital strife, and he informed SARS that the SASSA letters were forgeries, and that he had assisted Mahlakoane in the forgery. He also described the forgery: they had altered the dates of the letters, copied the altered documents, and he had then forged a ‘certification as a true copy’ (by a non-existent police officer, and with a genuine police stamp) on the altered documents.
Based on such information, SARS charged Mahlakoane in a disciplinary hearing (the second disciplinary) with fraud and forgery, essentially that in the first disciplinary hearing she had presented forged documents in evidence, well-knowing that the documents were forged. She was found guilty, and dismissed.
Mahlakoane referred a complaint of unfair dismissal to the CCMA, and the Commissioner ruled that the dismissal was unfair, as –
- – the charges on which the two disciplinary hearings were based were the same; and
- – in the first disciplinary hearing, Mahlakoane had been acquitted of fraud; and
- – the second disciplinary hearing amounted to double jeopardy (punishment of a person twice for the same offence).
The Commissioner ordered that SARS must reinstate Mahlakoane. SARS appealed to the Labour Court, with success. Mahlakoane then appealed to the LAC.
The LAC found that the double jeopardy finding was wrong, as the fraud charge in the first disciplinary hearing dealt with Mahlakoane (allegedly) defrauding SASSA, and the fraud charge in the second disciplinary hearing dealt with Mahlakoane (allegedly) defrauding SARS. In respect of the second disciplinary hearing, the LAC held that:
“There is no doubt that the onus in this instance had been discharged by [SARS]. The probabilities are overwhelmingly that the dates on the letters … had been altered … and that the police stamp[s] on the copies of those letters are falsifications. The Commissioner’s finding, in effect, that the charges were not proved is not a conclusion that a reasonable decision-maker would have come to.”
“The misconduct was of a very serious nature and involved calculated acts of dishonesty … In those circumstances, the sanction of dismissal was clearly justified.”