1
IN
THE INDUSTRIAL COURT OF APPEAL OF SWAZILAND
SWAZI
OXYGEN
Appellant
Vs
DLAMINI
JABULANE
Respondent
Appeal
No. 30/2001
Coram SAPIRE,
JP
MATSEBULA,
JA
MAPHALALA,
JA
For
Appellant Mr. Z. Jele
For
Respondent Mr. M. Mkhwanazi
JUDGMENT
(01/07/2002)
The
appellant in this matter was an employer of the respondent. The
respondent was dismissed on the grounds of gross negligence. Such
negligence, it is admitted, resulted in a loss to the appellant of
some E66 000.00. When the matter came before the Industrial Court,
that court found that this was not a ground for dismissal under
Section 36(1) of the Employment Act and had made an award to the
respondent of some E26 449.92. No order as to costs was made.
While
in law that order may have been justified the parties were agreed
that the evidence established a counter claim which the Appellant had
against the Respondent for damages in respect of the loss occasioned
by Respondent's negligence in a far greater amount than the award.
This
court has the power to, as does the court a quo to make an equitable
order in the circumstances. The court below should have taken into
account in making its award that whatever it awarded should be set
off at least against the loss which was
2
occasioned
to the appellant by the respondent's negligence. While therefore we
do not set aside the award we order that in equity it be set off
against and reduced to the extent of the loss incurred by the
appellant. This in effect extinguishes the Appellant's liability in
terms of the award. It is without prejudice of course to any other
claim which the appellant may seek to pursue.
SAPIRE,
JP
I
AGREE
MATSEBULA
JA
I
AGREE
MAPHALALA,
JA
