IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO. 226/2000
In
the matter between:
JEREMIAH
MAMBA………………APPLICANT
And
J.
D. GROUP (PTY) LTD t/a
PRICE
W PRIDE FURNISHERS RESPONDENT
CORAM:
NDERI
NDUMA: PRESIDENT
JOSIAH
YENDE: MEMBER
NICHOLAS
MANANA: MEMBER
FOR
APPLICANT: N. SIMELANE
FOR
RESPONDENT: D. MADAU
J
U
DG
EM
E
NT-05/10/05
On
the 2 August 2000, the Applicant filed a claim for payment of
terminal benefits and compensation for unfair dismissal against the
Respondent.
The
claim was subsequent to a report of dispute to the Commissioner of
Labour in terms of Section 41 (3) of the Employment Act Mo. 1 of 1980
(hereinafter the xAcf).
The
dispute was conciliated upon but no amicable solution was found. A
full report was thus filed with the court for determination of the
dispute.
BACKGROUND
The
Applicant was employed by the Respondent on the 3rd
January 1991 as a Credit Manager in one of their shops trading as
Price XN' Pride Furnishers, Manzini. In 1997 the Applicant
was promoted to the position of Relief Manager in charge of the Bhunu
Mall branch at Manzini. The Applicant had a good record and had no
written warning for poor work performance or misconduct.
This
was until the month of March 1999 when he was charged with two
offences as follows:
1.
Poor work performance in that on
diverse days between the 18th
March1999, and May 1999 the Applicant permitted a cancellation and a
rewrite of a customer's order without backdating the date of the
rewritten order to the date when the cancelled order was made.
As
a consequence thereof, the customer delayed payment of the supplied
goods by at least 3 months to the loss and detriment of the
Respondent.
2.
Secondly, the Applicant was accused of poor work performance in that
he failed to adequately monitor the fuel consumption records of one
of the drivers at his station. Due to such failure, the driver made
fraudulent petrol
fills to the loss and detriment of the
Respondent.
The
Applicant was hauled before a disciplinary tribunal. He was found
guilty on both counts and his services were terminated on the 8th
July 1999.
The
Respondent called one John Zulu (RW1) to testify in support of its
case against the Applicant before court. Mr. Zulu was at the time of
the testimony the Regional Manager of J.D. Group of companies at
Ermelo. In the year 1999, he was still Regional Manager in charge of
Swaziland but had just taken over from another officer.
He
told the court that he was alerted to the offences at the time and
conducted investigations of the same. The matter was then referred to
the forensic Audit department of the company for further
investigations.
According
to the witness, it was a breach of company policy for the Applicant
to cancel and rewrite a customer's order without backdating the date
of the rewrite to the date of the original deal. This meant a delay
of at least 3 months before the customer started paying her
installments yet she had already received the goods. The customer was
a staff member of the Respondent and the delay in finalizing the
transaction was due to lack of one of the ordered items. The missing
item had to be sourced from another shop in South Africa. Meanwhile
the customer who had ordered 5 items had received 4 of them and was
awaiting the 5th item. She kept the 4 items and did not
start paying installments until when the last item was found and
supplied to her. This was the fault of the Applicant according to the
witness.
The
witness did not accept the explanation by the Applicant regarding the
rewrite and delay in paying the installments. He however did not
consider the transaction as fraudulent even though the failure to
backdate payment would have cost the Respondent some money. He
considered the misuse of fuel as fraudulent conduct by the driver of
the van. The responsibility of the Applicant was ensuring proper
supervision and observance of policy and procedures to ensure prompt
discovery of any such fraudulent conduct. In this case there was
considerable delay in discovering the fraud by the head office. This
failure he attributed to the Applicant. He again found the
explanation by the Applicant unacceptable. He testified before a
disciplinary tribunal that tried and found the Applicant guilty of
the two offences.
Witness
(RW2) for the Respondent was Peter Richard Warr. He was a Forensic
Auditor from the Respondent company. He was charged with the
investigations that led to the preference of the two charges against
the Applicant. He infact charged and motivated the prosecution. He
termed the first charge of rewriting an order for a staff member as
less serious than the second one of fraudulent misuse of fuel by a
company driver of motor vehicle SD 145TJ - a Toyota Dyna.
The
result of the investigations were that, in respect of the first
charge, the Applicant was found to have breached company policy in
rewriting an order but not backdating the date of payment of the
first installment to the date when the order was first made. This led
to late commencement of payment by at least 3 months to the loss and
detriment of the Respondent.
As
regards the second charge, his conclusion was that the irregularities
committed by the driver of the Toyota Dyna could have been easily
picked by the Applicant. His failure to monitor the controls put in
place by the Respondent led to the non detection of the fraudulent
transaction by the driver. At times the driver would refill the tank
after traveling only 10 kms when infact the average fuel consumption
and range for the Dyna was 5-6 hundred kilometres per tank. This went
on between January to June 1999 without detection.
He
estimated the loss incurred between January and June to have been
plus or minus E10,000 (Ten Thousand Emalangeni). The motor vehicle
log sheet had only been partly filled and 65% of the fuel slips were
missing.
He
explained that the Branch Manager was charged with the responsibility
to keep the fuel card and monitor every fueling transaction as it
occurred. To him the Applicant had failed in his duty. The Applicant
had his own company car and had maintained perfect records in respect
of the car he used. There was no excuse therefore why he had not done
the same in respect of the subordinates' van. He should have checked
the odometer reading to determine distance traveled since the last
refill.
After
preparing the charges for breach of company policy, he initiated the
prosecution and led evidence at the disciplinary hearing. The result
of the hearing was the dismissal of the Applicant. He appealed the
decision but same was confirmed.
He
stated that to be appointed a Branch Manager, the Applicant must have
had sufficient training and/or adequate experience to perform the
basic tasks relating to the portfolio. He did not think that a
reprimand and retraining was sufficient sanction for the offences
committed.
The
witness was unaware of the Swaziland Employment Act requirement under
Section 36 (a) to the effect that an employer may only dismiss for
misconduct and/or poor work performance after first giving at least
one written warning to the employee concerned.
The
provision is meant to ensure that before an employee is dismissed for
what may be termed routine errors of omission or commission, he/she
has been notified of his shortcomings, counselled and where possible,
retrained to avoid a repeat of the transgression. It is only then
that an employer would be justified to dismiss the employee in terms
of Section 42 (2) (a) and (b) of the Act.
The
witness readily admitted that no such written warning had been given
to the Applicant prior to the dismissal. He agreed that non of the
conduct of the Applicant could be termed fraudulent and/or dishonest.
He stated that he could possibly equate his conduct to gross
negligence.
He
however conceded that the Applicant was not charged for gross
negligence but faced charges of breach of company policy amounting to
misconduct.
The
Applicant in his testimony gave explanation of the conduct complained
about by the Respondent. The onus of the Applicant in a case of this
nature is that of rebutting the evidence of the Respondent to tilt
the scales of probability in his favour.
In
that endeavour as he had done before the disciplinary tribunal, the
Applicant gave testimony as follows:
That
he was employed as a Credit Manager on the 3rd January
1991 by the Respondent. In 1997, he was promoted to the position of a
Relief Manager in charge of the Bhunu Mall branch at Manzini. That he
did not receive any particular training upon elevation to this
position. He relied solely on his experience as Credit Manager. There
was no handover either because the incumbent was not present when he
assumed the position.
The
events leading to the charge of re-writing an order started when he
was instructed by the Field Manager at the time to do an NSP order
(to order an item that was not in the line of the shop and therefore
was not in stock).
The
customer, a staff member by the name of Zodwa Ndzimandze had ordered
5 items, 4 of these were available in the shop. The 5th
item was not in stock. He did the order and delivered the 4 items. It
was the first time he had been confronted with a complication of this
nature. He sought the advice of his superior, the Field Credit
Manager who directed him to cancel the order and re-do it.
The
redone order was again rejected by the computer due to coding
complications. He then sought assistance of their sister outlet
Joshua Doore, who provided the proper code for the missing item. The
order was then redone successfully. These complications caused the
delay in initiating payment by the customer so that instead of the
1st installment going through on the 1st May
1999, it commenced on the 1st July 1999. The witness
explained that the transaction was fully sanctioned by his superior.
It was good business for the Respondent and no loss was sustained as
a result because the customer fully paid for the items. After all
this was a staff member of the Respondent and was in terms of the
company policy obliged to pay for the items in six months time, which
she did. He did not do any wrong as far as he was concerned.
With
respect to the fraudulent use of petrol by a driver of a delivery
van, Mr. Ambrose Dlamini, the Applicant explained as follows:
The
driver used a Stannic fueling card as per the company policy. At his
branch, he had delegated the Credit Manager to retain possession of
the fuelling cards and be in charge of filling the logs and keeping a
check on the fueling trends of the drivers. The driver brought fuel
slips and in the log sheet was filled the date, the amount of fuel
and kilometers covered by the car. The Regional Manager provided the
branch with bank statements from the Respondent's Head office for the
purpose of reconciling their figures with the bank statements.
The
van driven by Ambrose was new, and statements for the car were not
received at the branch until sometimes in April or May 1999. That is
when the seniors complained of the discrepancies between the bank
statements and the records kept at the Branch.
The
Applicant told the court that although the driver used a fuel card
from the Manzini branch, he was stationed at the Matsapha Warehouse
and was not under his direct supervision. He was therefore not in a
position to monitor his daily movement and transactions.
He
refuted the evidence by the witnesses for the Respondent that he
could not delegate this monitoring function to the Credit Manager. In
any event, he had not been trained at all as a branch manager but
only used his experience and discretion in the matter. As regards the
company car he used personally he never abused petrol or the car at
all, a position that was confirmed by the witnesses for the
Respondent. He observed that he needed to be trained on the aspect of
monitoring fleet but not be dismissed for failure to perform a
function he had not been trained to do. After all the Regional
Manager, and the Field Credit Manager were equally responsible for
monitoring use of motor vehicles in their sphere but were not called
upon to account for the conduct of Ambrose. He was the only one
punished for it, even though he was only relieving a Branch Manager.
He
had not received any written warning nor training for any such
misconduct or poor work performance and therefore it was unlawful and
unfair for the Respondent to dismiss him after 8 years of clean and
dedicated service to the Respondent.
The
court has carefully analyzed the evidence of the Applicant and that
of RW1 and RW2, the following has been proven:
1.
That for the reasons
given by the Applicant, he caused a rewrite of an order to a staff
member. As a result of the rewrite there was a slight delay in the
commencement of monthly installments to the Respondent. That the
customer fully paid for the items received. The delay was due to the
difficulty in sourcing a product that was not ordinarily stocked by
the Respondent. This was the first time for the Applicant to do such
a sourcing of an offline product. He got the assistance and approval
of his superior the Field Credit Manager to rewrite the order. Though
there was a negligible loss to the company due to the delay in
commencing payment, the explanation by the Applicant is reasonable.
His conduct was prudent and acceptable to a reasonable employer in
the eyes of the court.
2.
The
Applicant was not trained in the functions of a Branch Manager when
he was appointed as a Relief Manager at the Bhunu Mall Branch. There
was in the period after the appointment a failure in proper
monitoring of the activities of the driver in question resulting into
questionable dealings in the use of fuel. No documentation was
produced by the Respondent to substantiate the fraudulent
transactions by Mr. Dlamini. The Regional Manager had a greater
responsibility to orientate the Applicant and ensure that he was
fully aware of his functions upon his appointment than he had
exhibited. This and lack of handover and proper training largely
explains the failure that occurred in monitoring fuel usage than the
reasons advanced by the Respondent.
What
is crucial is that the Respondent did not comply with the dictates of
Section 36 (a) of the Act, in issuing out a written warning with
respect to the alleged breach of company policy before dismissing
him.
The
final result of these factual findings is that the Respondent has
failed to prove on a balance of probability that it dismissed the
Applicant for a reason provided under Section 36 of the Act.
Furthermore
the Respondent has consequently failed to establish that it was fair
and reasonable to dismiss the Applicant in the circumstances of the
case.
COMPENSATION
The
Applicant had served the Respondent continuously for a period of over
8 years in a position of responsibility. He had not before these
occurrences been found to be wanting in his duties. This explains the
promotion he got which quickly proved to be his ruin. This was due to
the failure by the Respondent to prepare him for the job.
As
a consequence of the dismissal, the Applicant lost his means of
livelihood. His bright career prospects were dashed overnight.
Himself and his dependants suffered financial loss and embarrassment
as a direct consequence of the loss of employment.
He
was however able to start his own furniture shop in the year 2000
which he runs with his son to-date.
At
the time of his dismissal he earned E5,515.00 (Five Thousand Five
Hundred and Fifteen Emalangeni) salary per month. Upon dismissal he
was paid in lieu of leave days not taken and got his contributions to
the Pension fund. This means that he lost the company's contribution
to the fund which he was entitled to had he not been dismissed.
This
application was lodged prior to the coming into effect of the
Industrial Relations Act No. 1 of 2000. In terms of the precedents of
this court and the Industrial Court of Appeal, compensation is to be
granted in terms of the 1996 Industrial Relations Act that permitted
24 months wages as compensation for the unfair dismissal.
Accordingly,
taking all the circumstances of the case into effect, the court
awards 12 months salary as compensation for the unfair dismissal in
the sum of E66, 180 (Sixty Six Thousand One Hundred and Eighty
Emalangeni).
TERMINAL
BENEFITS
The
Applicant was entitled to one months salary in lieu of notice in the
sum of E5,515.00 (Five Thousand Five Hundred and Fifteen Emalangeni);
twenty days additional notice in the sum of E5,939.30 (Five Thousand
Nine Hundred and Thirty Nine Emalangeni and Thirty Cents) and 70 days
severance allowance in the sum of E14,848.40 (fourteen Thousand Eight
Hundred and Fourty Eight Emalangeni and Fourty Cents).
Total
amount due to the Applicant as compensation and terminal benefits is
E92,482.76 (Ninety Two Thousand Four Hundred and Eighty Two and
Seventy Six Cents).
In
addition, the Respondent should pay the Applicant all the employer's
contribution to the Pension Scheme that was withheld upon his
dismissal.
No
order as to costs.
The
members agree.
NDERI
NDUMA
JUDGE
PRESIDENT- INDUSTRIAL COURT
