A Cape Town man who was dismissed after using bursary funds earmarked for studying for personal use, lost his appeal at the Labour Court in an attempt to get his job back.
Thembile Mabhaso was employed as an Operating Standards Specialist at Astron Energy from 2012 until January 2020.
He earned R83,500 a month.
Sometime in November 2018, he applied for a bursary at work to further his studies at the University of Cape Town (UCT).
His employer agreed to pay his fees and the initial payment required by UCT to enable him to register was R25, 500.
In February 2019, the R25,500 was paid into Mabhaso’s account.
From the money, Mabhaso only paid UCT R10,000 and used the rest of the money for personal expenses.
According to Mabhaso, he had intended to pay off the balance in December when he gets his bonus.
But even before getting the bonus, in November, he asked his employer to make a payment to UCT for outstanding fees.
He provided the employer with a statement from UCT which reflected his payment of R10,000 and it reflected an outstanding amount of over R37,000, this amount included interests from the outstanding initial payment.
His employer then requested proof showing that he paid the R25,500 which was paid into his account.
He replied by saying that his employer had an outstanding of R22,961 and he would pay UCT R15,000.
The HR manager advised him that the company was only liable for R20,120 because the interest was incurred due to non-payment from his side after he failed to pay all the money that was sent to him.
The matter was subsequently escalated to his manager and he was charged with misconduct.
He eventually paid R15,000 in December 2020 but the company insisted that R500 was still missing but he said that was an error.
He went through a disciplinary hearing and was dismissed in January 2021 for unauthorised use of company funds.
He appealed the sanction, but the appeal was dismissed.
He approached the Labour Court in January 2024 and filed a condonation application because his review application was more than six weeks late.
He blamed the delay on a legal representative, Mr Tshaka, saying Tshaka was responsible for filing his review application but he kept giving him different excuses regarding the review application.
In October 2023, he said he went to the Legal Practice Council to report Mr Tshaka, however, the court heard that Mr Tshaka denied ever representing him.
As a result, Mabhaso represented himself in the proceedings.
In his review application, he admitted he was wrong for using the funds earmarked for his studies for personal use, but argued that his actions did not justify the sanction of dismissal.
He further argued that the employer should not have paid the funds into his account and that there was no set timeline as to when payment had to be made to UCT.
He further argued that given his financial affairs, he naively and regrettably succumbed to the pressure and fell into temptation of wanting to rearrange his affairs and meet his financial needs, which included settling school fees for his child.
He asked the court to direct Astron Energy to reinstate him and issue him with a a final written warning, valid for a year or the matter be referred back to the National Bargaining Council for the Chemical Industry where it will be heard by a different commissioner.
Acting Judge Alma De Wet first looked at the reasons Mabhaso gave for delaying in filing a condonation application and said he he failed to provide compelling, comprehensive and convincing reasons.
His condonation application was therefore dismissed.
Regarding his review application ever succeeding, judge De Wet said Mabhaso’s conduct caused a breach of the trust in the relationship with his employer.
She said it was concerning that Mabhaso had told his manager that he used R10,000 from his personal funds to pay UCT while he was still waiting for funds from the employer.
However, evidence showed that he only paid the R10,000 after receiving funds from his employer.
“The conduct of the applicant (Mabhaso) explains why the first respondent (Employer) was of the view that the trust relationship was breached ... Based on the facts, the court is of the view that he does not have any prospects of success,” added judge De Wet.
sinenhlanhla.masilela@iol.co.za
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