In Good Faith

IN GOOD FAITH BY CARMEL RICKARD

BONUS COMING UP

@ ca r m e l r i c k a rd

The court said the bank decided on dismissal out of concern for re p u t at i o n a l damage A Namibian court has found in a former bank employee’s favour after she faced two disciplinary actions —and two sanctions —for one infringement

a m i bi a’s Financial

NIntelligence Centre (FIC) takes a dim view of banks that diso b ey its intervention orders, something that became clear through a Supreme Court decision last week.

When First National Bank (FNB) Namibia allowed a withdrawal from an accountagainst the instructions of the FIC, a hefty fine followed. It’s a situation FNB had not previously confirmed, but with a case at the Supreme Court testing whether its dismissal of the employee responsible for the payout was lawful, details of the fine became part of the record.

The story goes back to December 2015, when the FIC directed the bank not to permit any transactions that would reduce the balance on two specified accounts. The next day, the bank sent an e-mail from its anti-money-laundering office to Elizabeth Nghishidivali, who was acting as manager of the Oshikango branch.

The e-mail said a hold had been placed on the two bank accounts following the FIC instruction. However, despite those instructions, Nghishidivali authorised a withdrawal of N$75,000 on one of the affected accounts.

When she realised what she’d done, Nghishidivali acknowledged that she had approved the transaction without following proper procedures. She said she hadn’t seen the “ho ld ”on the account, conceded that she had been negligent, and apologised.

FNB appointed an investigator to look into the matter. His report noted that the bank could face administrative sanctionand, in line with his r e co m me nd at io n s , Nghishidivali signed an “a d m i s s io n of guilt statement”and was issued a final written warning, valid for 18 months.

Some months later, the FIC imposed a N$7m fine on FNB for infringing its instructions, though N$5m was suspended for five years.

It ’s what happened next that led to the litigation: in July 2016, the bank informed Nghishidivali that she wassuspended pending the outcome of a disciplinary hearing. That hearing led to her dismissal in November 2016.

The arbitrator who heard Ng h i s h id iv a l i ’s challenge to this outcome confirmed the dismissal. She then asked the labour court for its view—a step that involved lengthy delays and requests to condone them. But t he court eventually agreed to hear the matter and found it was unfair for the bank to have held a second inquiry.

FNB in turn appealed to the Supreme Court, saying the labour court ought not to have heard the matter in the first place, and that the outcome should be overturned.

The Supreme Court judges found that the labour court’s decision to hear the case, despite the delays, could not be appealed, and that Nghishidivali had tried her best under the circumstances to get the matter to court in time.

They found that while the bank had used the FIC fine to justify Ng h i s h id iv a l i ’s disciplinary hearing and eventual dismissal, this was in fact not “new material”: when the bank issued Nghishidivali with a final warning it was already aware that an FIC fine could follow, and had even anticipated it.

Tried twice Nghishidivali claimed “double jeopa r dy ”in that she’dbeen subjected to two sets of inquiry and two p u n i s h me nt s .

FNB, however, said there had been only one hearing —a claim the Supreme Court said was based on form rather than substance, especially as the bank itself called the process leading to her admission of guilt statement“s ho r t e ne d disciplinary proceedings”.

The court said the bank decided on dismissal out of concern for reputational damage. But it was “manifestly unfair”to hold a second disciplinary hearing and dismiss her on the same set of facts as had resulted in a final written warning.

The judges thus found the dismissal unfair, and ordered that Nghishidivali be paid her salary for 28 months(the period from dismissal to the labour court’s finding that she was unfairly dismissed). And, in what will be an unexpected year-end bonus for her, it must be paid by December 31. x

123 R F/m i c ro o n e

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