IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
IN MBABANE CASE NO. 22/2000
In
the matter between:
DUMSANI
MASHININI APPLICANT
And
NONTEX
TEXTILES RESPONDENT
CORAM
KENNETH
NKAMBULE : JUDGE
DAN
MANGO : MEMBER
GILBERT
NDZINISA : MEMBER
MR.
SICELO DLAMINI : FOR APPLICANT
NO
APPEARANCE : FOR RESPONDENT
JUDGEMENT
29/9/00
In
this matter the applicant has brought an application to this court in
terms of the Industrial Relations Act No. 1/1996.
There
is filed with the court an affidavit of service dated 8th February
2000, We were satisfied that the respondent had been duly served with
a copy of the application. The respondent has not filed any replying
answer as required by the Industrial Court Rules, 1984. The hearing
proceeded in terms of Rule 7 (14) (b) of the Industrial Court Rules.
In
his particulars of claim and evidence before court, the applicant
stated that he was employed by the respondent on the 12th day of
December, 1996 and was in the continuous employ of the respondent
company until the 27th September, 1999 when his services were
terminated for allegedly coming to work under the influence of
alcohol.
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According
to the papers before court, respondent summarily terminated the
services of the applicant on the 27th September, 1999. At the time of
his dismissal applicant was invited to a disciplinary hearing on the
same day he was alleged to have committed the offence. He lodged an
appeal against the procedure used to discipline him and also against
the sentence eventually meted. He was refused the right to appeal.
Conciliation
proceedings were effected by the Labour Department and the matter was
referred back to the parties for purposes of having the appeal
hearing. Respondent refused to grant applicant the right to appeal.
Applicant returned to the Labour Commissioner and reported the
failure by respondent to hear the appeal. A certificate of unresolved
dispute was eventually issued.
According
to Grogan Riecket's Basic Employment Law 2nd ed page 100,
'"procedural fairness' requires that the employer must have
treated the employee fairly before taking the decision to dismiss,
i.e. he must have given the employee an opportunity to defend himself
and to plead in mitigation of sentence."
The
question that the court has to answer is: Was the disciplinary
hearing procedurally fair?
In
CHRISTOPHER H. DLAMINI VS INTER AFRICA SUPPLIES
Industrial
Court Case No. 7/97 at page 7 Parker Judge, as he then was set out
six minimum standards which must be met in order for a hearing to
qualify to be procedurally fair. He had this to say: "While we
do not expect an employer to handle disciplinary hearings according
to the standards of a court of law .... we expect that certain basic
procedures must be followed. Among these are:
The
employer should advise the employee in advance of the precise charge
or charges that he or she is to meet at the hearing. This
requirement is tied up with the need for adequate preparation.
The
employee should be advised in advance about his right to
representation, and the representative must be a representative
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of
his own choice, not imposed by the employer or any other person.
There
should be a right of appeal and this should be explained to the
employee".
Of
record there is no evidence that applicant was advised that he had a
right to be represented by a representative of his own choice.
Secondly, respondent was not given enough time to prepare his case.
The offence took place and immediately he was taken to the
disciplinary hearing and his services terminated. Thirdly, he was
refused the right to appeal.
From
all this it is our decision that the dismissed was not fair within
the meaning of procedural fairness under Section 42 (2) (b) of the
Employment Act.
We
now make the following order:
Respondent
shall on or before 6th October 2000 pay to applicant -
Ten
(10) months' wages as compensation = 4,100-00
Notice
pay = 410-00
Additional
notice pay = 109-32
Severance
pay = 273-30
TOTAL
= 4,892-62
No
order as to costs. The members concur.
KENNETH
P. NKAMBULE
JUDGE
- INDUSTRIAL COURT
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