News24.com | Municipal accountant's dismissal upheld after his computer was used in a foiled fraud attempt

An accountant from the Gert Sibande district municipality has lost his case to set aside a decision in arbitration on his dismissal.

• The Labour Court has upheld a decision to dismiss a municipal accountant.
• The accountant's computer was used to try steal money from his employer after he shared the password.
• He argued that the municipality could not be certain it was him, and was reinstated, only to be dismissed again.

An accountant working at the Gert Sibande District Municipality in Mpumalanga will not be reinstated after it was found that his computer was used to access the municipality’s account, 11 times.

This Labour Court's judgment is the third one on the matter. The accountant said he could not be accused of trying to steal the money because he had given his computer password out freely. And, he argued that there was no way to conclusively tell who was using the computer when someone tried and failed to access the funds.

On 13 March 2023, Judge Connie Prinsloo dismissed the accountant's application, which was brought with the South African Municipal Workers Union (Samwu), to review and set aside an arbitration which upheld his dismissal from work.

The saga began in early 2012 when Absa notified the municipality about possible fraudulent activities.

A forensic investigation was done and the computers of the staff working in the financial department were checked.

At the time, the accountant had a company-issued laptop which had its own password. But he was not given the authority to access the Cash Focus account via the internet.

According to the judgment papers, the investigations revealed "irregularities" which could potentially lose the municipality R9.7 million.

It found that during the period 31 January to 23 February 2012, several attempts were made from the accountant’s computer to access the municipality’s Absa bank account.

The accountant was charged with misconduct for failing to conduct himself with honesty and integrity by attempting to access the account  11 times on eight different dates. The alternative charge was fraud.

He was found guilty of misconduct and dismissed on 3 May 2013.

He disputed his dismissal and it went for arbitration.

'Culture of teamwork'

During the arbitration proceedings, the accountant said there had been a "culture of teamwork", and that he and his colleagues shared each other's computers and passwords.

According to court papers, "he even allowed the auditors to use his computer and his password was written on the calendar, which was on the computer desk, to be used by his colleagues. He explained that about 10 of his colleagues knew his password".

On 1 August 2013, the arbitrator found that his dismissal was unfair because "it was not possible to conclude that it was he who had attempted to access the bank account".

His punishment for being irresponsible with the password was that he did not receive backpay for the time he spent fighting the dismissal.

With that, he went back to work at the municipality.

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But on 3 November 2016, the accountant was issued with another notice to attend a disciplinary hearing, but this time the charge was for gross dishonesty.

"In that he acted dishonestly with the intention to deceive the municipality by sharing his own computer-created password with other employees during the period of February 2012 and the failure to comply with the municipality's IT policy by sharing his computer’s password with other employees, which resulted in his computer being used to do fraudulent activities."

He was found guilty and dismissed.

Again, he challenged his dismissal, but on 3 May 2018, his dismissal was found to be fair.

This led to the most recent Labour Court judgment.

A case of double jeopardy?

The accountant argued that the second arbitrator's findings be set aside on review as it was a case of double jeopardy.

He argued that it was unfair to punish him twice for the same misconduct. First with unpaid suspension and then with dismissal.

Double jeopardy is found in criminal law where an accused person cannot be tried twice for the same offence.

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But the judge said the courts had not adopted the double jeopardy defence in an employment context.

Judge Prinsloo said the second accusation was different from the first because the charges were triggered by the evidence the accountant gave during the first arbitration, that he had disclosed his password.

She added:

"Once the respondent became aware of it, the conduct was viewed in a very serious light and upon reinstatement, disciplinary action was taken in respect of that."

She added that by sharing the password, he had not complied with the IT policy and that it had exposed the municipality to "serious risk".

"The misconduct charges in the first and second disciplinary hearings were distinct from each other, a clear reason why the principle of double jeopardy finds no application."

The review was dismissed, and the applicant is to pay the municipality’s costs.

"I am mindful of the fact that the respondent is a municipality, which is funded by taxpayers’ money," Prinsloo said.

"Taxpayers' money should be used to render basic services and to fund the operation of the municipality, not to pay for legal fees to oppose matters that had no merit from the onset."

She added that there were no reasons given as to why the trade union, acting on behalf of the accountant, "should not be ordered to pay the costs of this application".