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To be (dishonest), or not to be?

Two recent tribunal cases make for quite interesting reading.

No dishonest intent

In the Mokotedi decision, the employer, a major bank, debarred a financial adviser on the grounds that he lacked the required qualities of honesty, integrity and good standing. This was as a result of the fact that he neglected to capture his absences on seven days on the bank’s system as required by the Bank’s disciplinary code.

“The major facts overlooked by the Bank is that the applicant, in all these instances, notified the Bank in writing on or before the date of his absence, together with the reason for the absence. That refutes a dishonest intention”.

“A breach of the Bank’s rules and regulations does not translate directly into the fit and proper requirements of the FAIS Act. As a result, the debarment is set aside.”

Obvious lesson: don’t confuse your acts and processes.

Decidedly less honest intent

In the Tshabalala case, the FSP sent notices of intent to debar to two representatives for submitting life assurance policies during August to November 2019 that were found to be dishonest. The terms of debarment were set out and the applicants were granted the opportunity to respond to the allegations by not later than 3 February 2020, and they were notified that the final decision would thereafter be taken whether to debar them or not. They did not respond to this.

This resulted in them being found guilty and debarred by the FSP.

The grounds for debarment was that policy applications were submitted on which commission was paid in advance, as premiums would be deducted via an employer payroll. No premiums were received on any of the policies submitted by the representatives. The modus operandi was apparently to offer applicants part of the commission payable to the representatives. The applicants then cancelled the policies immediately after receiving the agreed payment. “The applicants acted in collusion with the representatives and is therefore implicated in this blatant dishonest and illegal act of bribery and theft.”

Council for the debarred reps noted: “It is with respect submitted that it is the client’s prerogative to decide to keep the policy or cancel it later on, if the circumstances have changed. The applicant played no role in cancellation of the policies by the clients. The Respondent’s basis for deciding to debar the applicant has no merit.”

The Tribunal noted that “…it is however highly unlikely that all the clients advised by a honest representative, will cancel EVERY SINGLE POLICY before paying the first premium. This is the case with all the policies written by the now debarred representatives.”

To make matters worse, they denied having received the notices of intent to debar, despite responding to all other correspondence to the same email addresses.

As a judge once commented: I am not saying you are lying, but it does appear as if you are handling the truth with great indiscretion.

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