The Financial Services Tribunal (FST) has upheld the debarment of a First National Bank (FNB) employee who accessed a client’s bank account without authorisation, saying the representative’s version of what happened was improbable.
According to the applicant, “MN”, in December 2021, he received a call on his cellphone from a person referred to him by a school friend. The caller claimed to have made an erroneous deposit into his (the caller’s) account, but the account had possibly been closed.
MN alleged the caller wanted to establish the status of his account and find out how to reclaim his funds. The caller sent MN the “proof of payment”.
MN said that when he accessed the account, he realised it was not the caller’s account. He alleged he did not disclose any of the account details to the caller, and, shortly after the call, he notified his area manager by email of the incident, enquiring how the account could be flagged for potential fraud. The area manager advised him not to access the account.
According to the Tribunal’s decision, MN conceded the common cause facts that he accessed a customer’s account:
- without the customer being present;
- without undertaking the necessary identity verification protocols;
- without the customer’s permission; and
- in breach of FNB’s Code of Ethics and Conduct Agreement.
But MN said he was not dishonest because he denied disclosing the account information to the caller and he reported the call to his manager.
MN was summarily dismissed after a disciplinary hearing. He referred the matter to the Commission for Conciliation, Mediation, and Arbitration (CCMA), where the matter was settled between the parties.
MN maintained that the settlement agreement should be the end of the matter, and FNB should not be permitted to take any additional steps.
Notwithstanding the settlement agreement, FNB served MN with a notice of intention to debar in June 2022. In FNB’s view, MN only sent the email to his manager “in an elaborate attempt to protect himself should an investigation be conducted”, and it could be “comfortably inferred” that he divulged customer information.
After considering MN’s representations in his defence, FNB debarred him in February 2023 for non-compliance with:
- Section 9(1)(e) of the Fit and Proper Requirements – removed from an office of trust for theft, fraud, forgery, uttering a forged document, misrepresentation, dishonesty, breach of fiduciary duty, or business conduct.
- Section 3(3) of the General Code of Conduct. “A provider may not disclose any confidential information acquired or obtained from a client or, subject to section 4(1), a product supplier in regard to such client or supplier, unless the written consent of the client or product supplier, as the case may be, has been obtained beforehand or disclosure of the information is required in the public interest or under any law.”
FNB’s version ‘is more probable’
The Tribunal said MN’s version of how the caller obtained his cellphone number and how he handled the call “simply does not ring true”.
The FST questioned why he would take a call on his private cellphone from a friend of a friend and access confidential information without authority and what transpired on the call after he established it wasn’t the caller’s account.
“The applicant’s version is improbable and falls to be deprecated. He had been working for the respondent for 14 years, and it is inconceivable that he would not have appreciated the consequences of his actions. Furthermore, when advised by his area manager not to access the account, why did he not come clean with his manager and confirm that he had already done so?”
The Tribunal said FNB’s version was more probable, namely that once MN realised that an investigation may follow his actions, he sought to cover his tracks by emailing his area manager.
In any event, it said the common cause facts alone supported FNB’s finding that MN lacked honesty and integrity, if only for breaching the bank’s Code of Ethics.
The FST said MN’s reliance on the settlement agreement made at the CCMA was misplaced. The labour matter had nothing to do with FNB’s obligation to debar him. Once FNB had established that MN no longer met the requirements of the FAIS Act, it was legally obliged to commence the debarment proceedings. The evidence indicated that the bank followed all the required steps in the debarment process.
