Суд отменил решение о незаконном увольнении бухгалтера NSFAS и назначил повторное разбирательство

The labour court has set aside an arbitration award that found the dismissal of an NSFAS employee unfair and awarded her R1.045m in backpay. Though the court did not decide Zenobia Abrahams should remain dismissed it ordered a fresh arbitration before a different commissioner of the Commission for Conciliation, Mediation and Arbitration (CCMA). It said the original commissioner had misunderstood the misconduct Abrahams was charged with. The case centred on nine work emails Abrahams sent or blind-copied to her personal Gmail account between March and October 2022. Abrahams, who joined NSFAS in November 2006, was an accountant: budgeting and expenditure and a Public Servants Association shop steward. She earned R52,250 a month. The emails contained NSFAS information, including sensitive financial material such as a trial balance and a payroll schedule containing details of salaries across the organisation. NSFAS charged her with gross negligence and the intentional disclosure of privileged and confidential information. The charge alleged that she had, without authorisation, placed confidential information outside the NSFAS network, exposing the organisation to reputational, financial and organisational risks. She was dismissed in September 2023 after a disciplinary hearing. At arbitration, CCMA commissioner C M Bennett accepted that Abrahams had breached NSFAS information technology policies but found that the dismissal was substantively unfair. He reasoned that there had been no disclosure because Abrahams already knew the information and had not given it to an outsider. Bennett also found that the risk of hackers accessing the information had to be probable rather than merely possible. He ordered NSFAS to reinstate Abrahams retrospectively and pay her R1.045m, calculated as 20 months’ salary. The labour court, however, found that the commissioner had approached the matter incorrectly. Judge Coen de Kock said the real issue was whether Abrahams had placed confidential information on a personal platform outside NSFAS’s controlled environment. “The gravamen of the charge is therefore the placing of confidential information onto a personal platform outside the employer’s control,” the judge said. The court found that the commissioner had effectively treated the charge as if Abrahams had been accused of giving confidential information to an unauthorised outsider. That was not the charge, he said. NSFAS’s information security policy specifically prohibited employees from forwarding work-related emails to personal accounts. The judge said the commissioner’s finding that there was no disclosure because Abrahams already knew the information was therefore based on the wrong interpretation of the charge. The court also rejected the commissioner’s approach that NSFAS had to prove that harm was probable. The judge found that “there is no probability-of-harm element in the charge.” NSFAS was entitled to control the movement of its confidential information without first having to prove that actual harm had occurred. The court pointed out that NSFAS is a public entity dealing with sensitive information relating to large numbers of students. It also found that the commissioner had failed to properly consider the repeated nature of Abrahams’ conduct. De Kock said she had deliberately sent or blind-copied nine work emails to her Gmail account over about seven months. The court described the conduct as the “intentional repeated removal of confidential financial material” from NSFAS’s controlled environment. That finding was important because the commissioner’s decision to treat the conduct as a lesser breach of policy flowed directly from his conclusion that there had been no disclosure. The court said matters such as Abrahams’ knowledge of the policies and her explanations for keeping the information on her personal account still needed to be properly considered. The judge reviewed and set aside the CCMA award and sent the dispute back for a fresh arbitration before a different commissioner. The backpay award has been placed on hold. Sowetan