IN
THE INDUSTRIAL COURT OF SWAZILAND
In
the matter between:
CASE
NO. 77/2001
SOLOMON
M. NDZINISA........................................APPLICANT
AND
PARSONS
TRANSPORT (PTY) LIMITED............. RESPONDENT
CORAM:
NKOSINATHI
NKONYANE:AJ
DAN
MANGO:MEMBER
GILBERT
NDZINISA:MEMBER
FOR
APPLICANT:N. MTHETHWA
FOR
RESPONDENT:C. MOTSA
JUDGEMENT
14/09/05
The
applicant is a former employee of the respondent. He brought an
application before the court for the determination of an unresolved
dispute in terms of Section 85 of the Industrial Relations Act No. 1
of 2000.
In
his application he stated that he was employed by the respondent on
the 28th October 1996 as a heavy-duty driver. He said that
on the 4th December
1999
he was arrested whilst in the Republic of South Africa on allegations
that he had stolen diesel from the company truck that he was driving.
He
said the charges were withdrawn on the 17 April 2000 because of the
non-appearance of the state witnesses. When he returned to work the
manager that he found there did not give him any work to do. He then
left his place of employment because of this conduct of the employer
towards him of not giving him work.
His
pleaded case was that he was constructively dismissed by the
respondent. He reported a dispute, but the matter was not resolved
and a certificate of unresolved dispute was accordingly issued and is
annexed to his application.
The
respondent in its replying papers denied that it instituted criminal
proceedings against the applicant. The respondent's pleaded case was
that the applicant absconded from work without exhausting any
internal remedies at his disposal.
Two
witnesses testified in court. It was the applicant and one
respondent's witness by the name of Benedict Dlamini.
The
applicant in his evidence told the court that on the 3rd
December 1999 he was instructed to transport timber from Mondi
Forest, Pigg's Peak to South Africa.
He
crossed the border at about 8:30 P.M and decided to sleep on the
South African side together with his lady friend. He continued with
his journey at about 04:00 A.M. He made a stop at Hartbeeskop to drop
his lady friend. He accompanied her to her house and left the truck's
engine running and the doors unlocked. When they returned they found
that the engine had been switched off and the ignition keys missing.
He said they went away for about five minutes. They then went to
report the matter to the nearest police station, about seven
kilometers away.
At
the police station they found some people including two white men.
The applicant said he did not know these two white men, but later
learnt from the police that they were from his company and that they
had reported to the police that they found him stealing fuel from the
truck. The applicant was told that if he wanted the ignition keys, he
should follow the two white men. He then hitchhiked and got a lift
from another Parsons truck. Along the way they were stopped by
someone who was driving a white car. That person told them that a
driver of the company truck committing a crime. The applicant told
him that he was the driver of that truck. The two white men then came
to the scene in the company of the police. The applicant was then
arrested.
The
charges were however withdrawn as the complainant failed to come to
court. The applicant said he then returned to work. At work he found
a new manager that he did not know. He gave him a copy of the
document indicating that the charges had been withdrawn. The manager
asked the applicant to give him time to contact the Witbank office.
After four days the applicant came back with the intention of
resuming work. He was however told that the company did not want to
take him back because there was evidence that he committed the crime.
The applicant thereafter reported a dispute.
During
cross-examination of the applicant it was put to him that he was
connected by telephone to a certain person by the name of George who
said he saw him stealing the fuel. The applicant denied that. The
said George was not called to give evidence in court. It was also put
to the applicant that he was suspended by Gert Botha for four days
and told to collect a charge sheet at the expiry thereof. The
applicant denied that. Gert Botha was not called to give evidence
before the court.
The
evidence of the applicant about how he was dismissed therefore
remained unchallenged. RW1,Benedict Dlamini's evidence was not
helpful at all to the court and did not take the respondent's case
any further. It was not clear why he was called as witness at all. He
told the court that he was a clerk and that he was not responsible
for the company drivers. He said he last saw the applicant in 1999.
The
applicant was able to prove that he was an employee to whom Section
35 of the Employment Act No. 5 of 1980 applied.
The
respondent has therefore failed to prove that it dismissed the
applicant for an offence permitted by Section 36 of the Employment
Act in terms of Section 42 (2) (a).
The
respondent has also failed to prove that it was fair and reasonable
to dismiss the applicant as required by Section 42 (2) (b) of the
Employment Act.
The
applicant's application must therefore succeed, and that is the order
that the court makes.
The
amounts claimed by the applicant as his terminal benefits were not in
dispute.
The
respondent is accordingly ordered to pay to the applicant the sum of
E48,194:00 (forty eight thousand one hundred and ninety four
Emalangeni) as his terminal benefits and compensation for the
unlawful and unfair dismissal.
No
order for costs is made. The members agree.
NKOSINATHI
NKONYANE A.J.
INDUSTRIAL
COURT
