IN THE INDUSTRIAL COURT OF SWAZILAND
the matter between:
SPRINGBOK SECURITY SERVICES (PTY) LTD …..RESPONDENT
YENDE : MEMBER
MANANA : MEMBER
APPLICANT : B. ZWANE
RESPONDENT : N. J HLOPHE
is an application for the determination of unresolved dispute in
terms of Section 85 (1) of the Industrial Relations Act No. 1 of 2000
(hereinafter the Act).
Applicant claims maximum compensation for unfair dismissal in terms
of Section 16 (6) of the Act. Other claims include one month's salary
in lieu of notice, and arrear salary for January 2001 in the sum of
Applicant alleged that he was employed by the Respondent on 20th
March 2000 as a supervisor of security personnel. He was promoted to
the position of site manager in the year 2000. He was based at the
Swaziland United Bakeries premises at Matsapha.
duties included supervision of guards on duty, doing random checks on
trucks, patrols in the premises, random checks on bread requisitions
and loading and other relevant paper work at the gates after every
the 25th January 2001 he reported for night shift at 1800
1.30 hours on the 26th, he got a telephone call from a
security guard in Nhlangano by the name of Nxumalo. He told him that
the truck from Matsapha had an over load of bread.
commenced investigations straight away. He contacted the night shift
dispatch clerk at the Matsapha premises by the name of Ernest Msibi
and the security guard on duty during the loading by the name of
two were supervising the loading of the bread into the Nhlangano
truck that evening. His investigations revealed that the truck was
loaded with 3,790 loaves of brown bread, and 2,290 loaves of white
bread totaling to 6,080 loaves of bread.
the morning shift, the truck had been loaded with 5,510 loaves of
brown bread. This was done by the day shift dispatch clerk by the
name of John Thwala and the guard who was on duty at the time was
Guard No. 452; who he could not recall his name.
night shift clerk Earnest Msibi informed him that he forgot to tally
the day load of 5,510 loaves on to the Invoice No. 3339. As a result,
the documentation did not reflect the correct order made by the
Nhlangano depot for the day which was 6,080 loaves and 5,510 loaves
totaling to 11,590 loaves.
to the Applicant, the truck had no overload. All that was needed was
to correct the invoice by including the 5,510 loaves that had been
loaded in the morning by different officers.
the 26th January 2001, the Applicant reported for duty at
18 00 hrs for night shift. At the time he had already concluded the
investigations and corrected the anomaly.
1900 hrs, the Applicant received a call from his Manager one Bheki
Magagula informing him that he was under suspension due to the
previous nighfs overload of bread. He was advised to make a report as
to his whereabouts on the night of 25th January 2001.
made a report as requested and sent it to the head office. He was
then asked to report on the 31st January 2001 for a
the 31st January 2001 one William Dlamini was chairing the
disciplinary hearing. He received the charge on the same day which
included, negligence, poor work performance, lack of punctuality and
desertion. The matter was postponed to the 1st February
the 2nd January 2001 he received a monthly salary of
El,242.77 (One Thousand Two Hundred and Fourty Two Emalangeni Seventy
Seven Cents) instead of the usual El,800 (One Thousand Eight Hundred
Emalangeni). He was informed that the difference of E557.00 was
withheld pending the disciplinary hearing.
was alleged at the hearing that the overload that occurred on the
evening of the 25th January 2001 was a result of his
failure to supervise the loading of the Nhlangano truck. That indeed,
he had deserted work that evening and never came back until the early
hours of the morning after the incident was reported.
Applicant denied that he was not on duty on the material night. He
denied there was an overload but instead there was a clerical
omission by the dispatch Clerk by the name of Msibi. He added that
his duties included random checks at various places at the SUB
premises during patrol and supervising guards and was not expected to
be at the loading bay all the time.
was found guilty of all the charges leveled against him and was
summarily dismissed on the 7th February 2001 by Mr.
was aggrieved by the dismissal. He reported a dispute to the
Conciliation Mediation and Arbitration Commission via the office of
the Commisioner of Labour.
dispute was not resolved and a certificate of unresolved dispute was
Applicant was employed by the University of Swaziland at the Luyengo
Campus on the 10th June 2003 as a senior Security Officer.
He earned E5,700.00 (Five Thousand Seven Hundred Emalangeni) per
month. He was married with
children. He suffered hardship and financial loss during the time of
claims that the dismissal was not for a reason permitted by the
Employment Act No. 5 of 1980. And that the same was both procedurally
and substantively unfair.
Respondent alleges that whereas at the time the Nhlangano truck was
being loaded the Applicant was on duty, he failed to supervise the
loading nor did he counter check the counting of the loaves as he was
supposed to do. This was the first charge. The second charge related
to allegation that he deserted his station after the loading of the
truck and returned at 4. a.m. in the morning.
allegations were denied by the Applicant.
Ndlangamandla testified as RW1 for the Respondent. He worked for the
Respondent as a Guard Supervisor at the SUB Nhlangano depot. On the
night of 26th January 2001, he received a truck from SUB
Matsapha. From the documentation, he expected 6080 loaves of bread,
he found out that the truck had 11,090 loaves i.e. 5,510 loaves in
the security officer responsible he had opened the truck together
with the Dispatch Clerk Sebenzile Khumalo.
called Matsapha twice but Mr. Gule could not be located. There was a
30 minutes interval between the calls.
then called Mr. Joseph Magagula to alert him of the problem.
denied that 11,090 loaves were expected insisting that only 6,080
loaves were expected. He kept the extra loaves of bread (5,510 at the
dispatch) and then reduced the order for the following day.
was Mciniseli Gamedze. He worked at Matsapha SUB. He was trained by
the Applicant on the job at Matsapha. He was on the same job rank as
the Applicant had been brought to Matsapha SUB to replace the
told the court that he was a supervisor of guards. The guards
supervised the loading of the trucks to ensure correct quantities
were loaded. Mr. Gule was supposed to double check that the loading
had been done correctly. Mr. Gule trained him to do that. This was
particularly done for the long haul trucks to Nhlangano and Siteki.
worked on shift basis and if he was not there somebody else would do
the double checking. A standby was arranged for the shift when he was
not on duty. He concentrated on the two trucks to avoid theft. He
however patrolled the whole SUB compound. The physical count was done
by the security guard on duty and the order was prepared by SUB
was Joseph Sikelela Magagula. He is the security guard who supervised
the loading of the truck on the material day. He received a call from
Nhlangano. They wanted Mr. Gule. He tried to locate him in vain. He
only saw him at around 4. a.m. in the morning. They looked for him
all over the premises.
work was to physically count the bread loaded. He then sealed the
truck. On the day in question he counted the bread and sealed the
truck. When he reported for duty he found the loading of the truck to
Nhlangano taking place.
replaced one Zikalala at 6 p.m. Ernest Msibi was the Dispatch Clerk
for the night shift. He was responsible for receiving the order and
preparing the invoice.
told the court that he saw the order form and the invoice for the day
and the total bread they were supposed to load for the day was plus
or minus 9,000 loaves.
the handover between the shifts, they got information of the bread
already loaded from the previous security guard and the Dispatch
the call from Nhlangano, Ernest Msibi added the figure of 5,510
loaves of bread on the invoice to eliminate the disparity between the
bread loaded and the figure on the invoice. He was subjected to a
disciplinary hearing and fined E108.00 (One Hundred and Eight
Emalangeni). He was charged for loss of bread. He did not know what
bread was lost.
said loading at times proceeded in the absence of Mr. Gule. He needed
not be there at all times.
this day the truck was half loaded when they reported for work at 6
o'clock. They signed the invoice trusting the figures they got from
the previous shift.
said he did not recall making a statement to the effect that he
forgot to record the correct load of bread. This was clearly seen in
his written statement however. He said that the omission to include
the 5,510 loaves of bread on the invoice was his. He did not tell the
disciplinary hearing that to avoid punishment.
issues stand out upon a careful analysis of the evidence before us.
the Applicant being a Site Manager had security responsibility over
the entire premises of SUB Matsapha.
he worked a twelve hour shift and a replacement would be arranged in
at the time of his dismissal he had been assigned to train his
the loading of the Nhlangano and Siteki trucks was always under
supervision of a Dispatch Clerk employed by SUB and a Security guard
employed by the Respondent. The two were responsible of ensuring that
the correct number of loaves were loaded and that the invoices
reflected the correct number of loaves loaded.
the site manager patrolled the compound and did regular random checks
on the subordinates at the gate and other points in the premises
including the one overseeing the loading of the truck.
the material day the Applicant reported on duty for the night shift
and did his work as normal.
the truck to Nhlangano was halfway loaded by the day shift and filled
up by the night shift. That the night dispatch clerk and the security
guard took over from the morning team. The two however omitted to
include the bread loaded during the day shift in the final invoice
that accompanied the truck.
was the problem that the Respondent blamed on the Applicant and found
him guilty of leading to his dismissal.
addition, it was alleged that he was not at the site during certain
hours in the night when the security guard by the name of Joseph
Magagula looked for him to receive a telephone call from Nhlangano.
Applicant told the court that he was present at all times on the
night of the 25th January 2001. That he attended to the
problem of the invoice error as soon as it was drawn to his
attention. That this was not a case of over loading because the
correct order of bread by Nhlangano was 11090.
Respondent's witnesses on the other hand gave contradictory testimony
on the actual order of bread to the Nhlangano depot on the material
Mxolisi Ndlangamandla who was based at Nhlangano told the court that
they expected 6080 loaves of bread at Nhlangano but received 11,090.
The documentation showed 6080 however.
Joseph Sikelela Magagula on the other hand told the court that he had
seen the order for Nhlangano whilst himself and Ernest Msibi
supervised the loading of the truck. He said that the total order for
Nhlangano was plus or minus 9,000 loaves of bread.
is clear that the Respondent witnesses were not sure of the correct
order of bread expected at Nhlangano. The Applicant was very clear
that 11,090 loaves of bread were expected. That of that order, 5,510
loaves had been loaded in the morning.
only mistake was the omission by Mr. Msibi, the SUB dispatch clerk to
record the morning load. Mr. Gule told the court that he rectified
the error timeously as soon as it was drawn to his attention.
Respondent has failed to show on a balance of probabilities that Mr.
Gule was negligent in his duty on the material day.
if he had been, he had no previous warning for poor work performance
and therefore in terms of Section 36 (a) of the Employment Act, he
could only be dismissed for the offence after a pervious written
warning. This was not the case.
offence of desertion was clearly not proven on a balance of
probabilities. The Applicant reported to work, and no evidence of him
leaving through the gate was given to the court. The gate was manned
by a security officer the whole night and the said guard was not
called to narrate when and how Mr. Gule had left the SUB premises.
was also no evidence of how he allegedly came back at 4 a.m. in the
Respondent has failed to prove therefore 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 not shown that it was fair and reasonable to
dismiss the Applicant as per the requirement of Section 42 (2) (b) of
the same Act.
Application succeeds on the merits.The Applicant was unfairly
dismissed contrary to the Employment Act. He suffered joblessness
upon dismissal. His family lost financial support during the time he
was unemployed. The Applicant however acquired a better paying Job
soon thereafter. He had served the Respondent for a period of about
one year at the time of his dismissal. He was not given notice upon
dismissal nor was he paid in lieu of notice.
January 2001 salary was unfairly reduced by E557.00 (Five Hundred and
Fifty Seven Emalangeni)
the Respondent is to pay a sum of El,800.00 (One Thousand Eight
Hundred Emalangeni) in lieu of notice; E557.00 (Five Hundred and
Fifty Seven Emalangeni) being the balance of the January 2001 salary.
Applicant is also to receive six months salary as compensation for
the unfair dismissal in the sum of E10,800 (Ten Thousand Eight
Hundred Emalangeni. Total payment equals E13,157.00 (Thirteen
Thousand One Hundred and Fifty Seven Emalangeni).
order as to costs.