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THE FINANCIAL SERVICES TRIBUNAL

 

CASE NO.: FSP40/2021

 

In the matter between:

 

KEVIN JOSEPH PALMER                                                               APPLICANT

 

and

 

CEDRIC WELSH AND ASSOCIATES FINANCIAL

PLANNING SERVICES CC t/a WELSHFIN                                  RESPONDENT

 

 

DECISION

 

 

1            The applicant applies for the reconsideration of his debarment as financial service representative and key individual by his erstwhile employer, the respondent.

 

2            The debarment followed disciplinary proceedings lasting many days during which the applicant was legally represented by RR.

 

3            The debarment was under section 14 of the Financial Advisory and Intermediary Act 37 of 2002.

 

4            The present application is under sec 230 of the Financial Sector Regulation Act 9 of 2017.

 

5            The parties agreed to waive a formal hearing by the Tribunal. Apart from detailed heads of argument the parties made some oral submissions during a short virtual hearing.

 

6            The background to the debarment is that the applicant was employed since April 2020 by the respondent when its sole member was Mr C Welsh. Mr Welsh died, and his widow took over his membership. The relationship between the parties became more and more strained and the applicant was suspended, which suspension was uplifted.

 

7            Then followed a second suspension and the disciplinary hearing before, I gather, an attorney, who found the applicant guilty on a number of counts, the significant one being of fraud. The allegation was that the applicant had forged the initials of the late Mr Welsh on his employment contract, thereby signifying handwritten insertions made by the applicant.

 

8            The adjudicator provided comprehensive reasons for his conclusions and there is little wrong, objectively speaking, with his decision – save for the irritating habit of using abbreviations which makes reading a chore.

 

9            Following on the applicant’s dismissal the respondent notified him of its intention to debar him. The notice was dated 13 May and it gave him 10 days to make written representations. The 10 days amount to six business days.

 

10         It was apparent from the notice that the respondent relied on the findings of the adjudicator in the disciplinary proceedings for the conclusion that it thought that the applicant no longer complied with the fit and proper requirements for a FSR or KI.

 

11         Attorneys RR requested an extension of time on 14 May to make submissions. This request was refused on 19 May. (There is a hearsay allegation that RR did not receive the e-mail - not the first time during the proceedings. However, it must be accepted that RR did not inform the applicant of the refusal.)

 

12         However, earlier that day the applicant’s present attorneys placed themselves on record, and also asked for an extension. Despite enquiries, the letter remained unanswered until 31 May, a week after the decision to debar the applicant was taken.

 

13         The reason given for this lack of courtesy and refusal of what on its face appears to be reasonable is the following:

 

I admit that the Respondent did not agree to an extension of time and submit that the seriousness of the matter, and the prescripts in the act, required that the matter be dealt with expeditiously. Proper notice was given to the Applicant of the Respondent's intention to debar and even after the Applicant was advised that no extension will be granted, he still chose not to make any representations at the time but favoured his chances of rather approaching the Tribunal after the fact, as he has since done.

 

14         In deciding whether proceedings are procedurally fair, one does not have regard to the merits of the defence.

 

15         It is even on the record not possible to assess the fairness of the proceedings because the respondent did not comply with the rules of the Tribunal: it did not provide the record of the proceedings although the applicant had asked for it and I queried its absence.

 

16         It follows that the application must succeed. I do not express any views about the substance of the case. Usually, in a matter like this the case is referred back to the decision-maker but Mrs Welsh appears to lack the objectivity required of a decision- maker and any further debarment will lead to an application based on a perception of bias.

 

17         The Secretariat is accordingly requested to bring the file to the attention of the FSCA.

 

18         There is no order as to costs.

 

 

Order: The debarment is set aside.

 

Signed on behalf of the Tribunal on 15 November 2021.

 

 

LTC Harms (deputy chair)

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