Picture: RUSSELL ROBERTS
Picture: RUSSELL ROBERTS

A FORMER Nedbank risk officer has taken the bank to court to get shares reinstated after they were withdrawn from him when he was forced out.

Sentletse Diakanyo, who is also the Economic Freedom Fighters’ chief of staff was executive head of risk, compliance and Reserve Bank liaison at Nedbank.

Mr Diakanyo was dismissed in February 2014 after run-ins and a breakdown in his relationship with group finance director Raisibe Morathi.

However, he challenged his dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA) as unfair.

In July 2014, the CCMA ruled that Mr Diakanyo’s dismissal was "substantively unfair".

Mr Diakanyo’s court bid to have his shares reinstated is important as it may offer clarity on how companies should deal with share options of employees who have been forced out.

Mr Diakanyo had asked for reinstatement, but Nedbank had said the "trust relationship broke down irretrievably and Morathi and the management of Nedbank did not want him back", the CCMA ruling said.

The CCMA commissioner, Motlatsi Phala, ruled that Nedbank should pay Mr Diakanyo R584,000 in seven months pay.

Then, in August 2014, Nedbank wrote to Mr Diakanyo, telling him his shares had lapsed.

The shares were awarded under the Nedbank Group employee share scheme and the black economic empowerment Nedbank Eyethu share scheme.

The shares are worth about R1.7m based on Nedbank’s share price at the market close on Monday.

A letter signed by Nedbank Client Service lead, Jon Chauruka, advising Mr Diakanyo about the forfeiture of the shares noted: "The rules of the scheme determine that where an employee resigns, all unvested options and/or restricted shares awarded to such participant shall lapse immediately following his or her last day of service."

But Mr Diakanyo contested this. He made an application in court in September last year, seeking an order for the reinstatement of the shares. It is yet to be heard.

In his application, Mr Diakanyo argued that he had not resigned and, therefore, the shares should not be forfeited.

"It should be noted that I was unfairly dismissed," he said.

On Monday, Nedbank did not respond to questions sent by Business Day. It said legislation and bank policies prohibited the company from disclosing personal information related to current or past employees.

Mr Diakanyo’s dispute with the bank ranged from disagreements over his position to accusations that he had spent time on Twitter during work hours. There were also disagreements about his office space.

Nedbank removed the risk and governance functions from Mr Diakanyo’s position in April 2013. In a letter, Ms Morathi said the functions were removed as a result of a failure to perform to the required standards. She also argued that Mr Diakanyo had relinquished his balance sheet management role voluntarily.

Mr Diakanyo claimed that he was expected to perform a governance function that had already been taken away from him.

He then sought clarity on his role. The CCMA noted that there was no response from Ms Morathi on this.

Mr Diakanyo was also charged for refusing to comply with an instruction to move from an office. He had to vacate the space because he was no longer part of the unit paying for it, but the CCMA found otherwise.

Mr Diakanyo had also been charged by Nedbank for allegedly neglecting calls from Ms Morathi and failure to attend a workshop that included a risk function.

The CCMA noted that Ms Morathi had acknowledged that Mr Diakanyo had returned her call, although it was late because she was in a meeting.

The CCMA questioned why Mr Diakanyo was expected to attend a workshop with a risk function as that role had been taken away from him. The CCMA also ruled that there was undisputed evidence that the workshop had not even taken place.

There were also accusations about the abuse of company resources and there was evidence of Mr Diakanyo being on Twitter.

Mr Diakanyo argued that his use of Twitter was consistent and he did not understand why Nedbank had made an issue of it.

The CCMA said although there was no evidence that Mr Diakanyo had violated any specific policy, he should have exhibited conduct that was exemplary because he was a senior manager.