A Tribunal decision published on 1 September provides further guidance to the debarment theme we have been focussing on recently. Importantly, it clarifies the need for a debarment hearing where due process had been followed.
The Respondent debarred the applicant on the basis of her non-compliance with the provisions of the FAIS Act and provisions of the General Code of Conduct. In addition, it was alleged that she compromised her fit and proper requirements in that she was dishonest in her conduct pertaining to various clients.
The request for reconsideration was based on the fact that the appellant contended that she was not provided with the grounds for, or proof of the debarment. She further stated that she had provided substantial proof and had not received any such correspondence from the respondent pertaining to her debarment.
Investigations were initiated by the FSP on 15 January 2021, and the employer continuously furnished the applicant with evidence against her and requesting her to respond by 31 March 2021.
On 5 March 2021 she was informed that her employment contract would be terminated within 30 days. She was also notified of her employer’s intention to debar her and was referred to previous emails containing the results of the investigations into her conduct as reasons for her debarment. In addition, she was given the opportunity to state her case before 31 March 2021.
On 31 March 2021, the applicant was advised that the debarment process would ensue and that she should advise if a date should be set for a disciplinary hearing.
Instead, she persisted with the issue that she has a right to be furnished with the reasons and evidence pertaining to her debarment. This was given to her. She was also given the opportunity to deal with the allegations of misconduct levelled against her. The Tribunal notes that she failed to deal properly with the substantive issues and “…persisted with peripheral issues namely grammar issues – “no inverted commas”, the fact that she has not been referred to as “Ms”, the document having spelling errors, the document having “inserts” from the FAIS Act and the fact that proof was not furnished to her when the issue of debarment was raised.”
In addition, she stated that she had provided substantial proof to dispute the allegations against her but did not receive any response from the FSP pertaining to her debarment. This formed the basis of her application for reconsideration of her debarment.
The employer’s policy on debarment is aligned with the provisions of Section 14(3) of the FAIS Act, read with the Guidance Note 2019. It is not required that a debarment hearing be conducted. The fundamental requirement is that the debarment process must be fair – namely that she be given an opportunity to respond and have consideration to the allegations levelled against her together with the relevant information.
The debarment policy does however allow the FSP to proceed with the decision to debar in the event that the representative fails to respond.
“The applicant has placed nothing concrete before this Tribunal to demonstrate that the findings and conclusions against her were not justified. The evidence from the forensic investigation remains unchallenged. The confirmation from clients that the policies were issued without their consent has not been contested with concrete facts. This includes the evidence of forgery identified by a hand-writing expert.”
“The evidence reflects that the applicant compromised her honesty and integrity. She was dishonest in her dealings with the respondent as well as her clients. She committed forgery, fraud and was dishonest. Her conduct is unbecoming of a financial service provider in this industry.”
The application for reconsideration was therefore dismissed.