IN THE
INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE
CASE NO.
288/2002
In the matter
between:
NDUMISO
NHLENGETFWA……………………..APPLICANT
and
STANDARD BANK
SWAZILAND LIMITED…...........RESPONDENT
CORAM:
NDERINDUMA:
PRESIDENT
JOSIAH YENDE:
MEMBER
NICHOLAS MANANA:
MEMBER
FOR APPLICANT:
M. MKHWANAZI
FOR
RESPONDENT:ADV. D. SMITH
J U DG E M E
NT-29/11/05
As an opening
remark, for reasons not very clear, upon filing of closing
submissions by the parties, the matter was not placed before me in
chambers for judgement until the 23rd November 2005. The
delay is regretted.
The Applicant is
a former employee of the Respondent Bank. He was employed on the 5th
may 1988 and was in continuous employment until the 9th
November 2001 when his services were terminated. He was paid one
months salary in lieu of notice upon termination.
At the time he
held the position of a Branch Administrator at the Nhlangano Branch
of the Respondent. The Applicant had held the position of Manager
Administration at the head office previously. He alleges that he had
been demoted for reasons that he solely attributed to racism from the
senior management that comprised of whites. When he challenged the
demotion, he told the court that senior management made life
unbearable for him at the Bank to the extent that he was excluded
from manager's lunches hosted at the bank's expense by what he
referred in court as the 'white boys'. He gave several examples of
discrimination suffered by him as follows:
In 1992 he was
supposed to be promoted from manager grade 2 to a notch higher but
was bypassed; when he discovered an incident of fraud by an employee
by the name of Joyce Shongwe, his report of the same was rebuffed by
Mr. Murray, a white manager.
In 1996, he
applied to go to routine banking and became Branch manager at Manzini
in 1997. He was transferred from one branch to another continuously
on what he perceived to be malicious intention by the white
management.
This is how in
his view, eventually he found himself at the Nhlangano Branch on
short notice in February 2001. He experienced great hardship with
this transfer because he had a child at Sifundzani Primary School.
The company house at Nhlangano was not made available to him upon
transfer hence he had to travel 262 kilometers per day between
Nhlangano and Mbabane from February up to July 2001.
For this reason,
he began to experience financial difficulties that finally culminated
in his dismissal. He explained that at the time the bank had two
houses at Nhlangano but both were leased out to non bankers whilst he
continued to suffer.
To cope with the
financial difficulties, he would issue out a personal cheque of
E20.00 to the bank and take the cash to buy lunch. At the time, his
account was at the Mbabane branch. He however issued the cheques at
Nhlangano. As a result he overdrew his account. He termed this as
unauthorized overdraft as opposed to an authorized overdraft. The
unauthorized overdraft according to him was lawful but attracted
higher interest.
This overdraft
culminated in the charges that were leveled against him upon
investigations by the bank. At the time he was charged he had
overdrawn his account by E80,00 (Eighty Emalangeni). He was then
suspended on the 9th November 2001, pending a disciplinary
hearing.
He told the
court that at the time he had a house bond of about E78,000 (Seventy
Eight Thousand Emalngeni) with the bank. That the house was valued
much higher than the E78.000 he owed and therefore there was no risk
whatsoever posed to the bank by the E80.00 overdraft. The overdraft
would automatically be offset upon deposit of his salary at the
account at Mbabane. A further justification for his conduct, was that
other staff members overdrew their accounts and no action was ever
taken against them. He perceived the charges and the eventual
dismissal as an act of victimization by the 'white boys' who wanted
to retain their positions in Swaziland by hook or crook.
The Applicant
faced the following charges:
Gross misconduct
in that on 1 September 2001 you instructed your subordinate Glen
Ndaba to give you E500.00 from his till on the understanding that you
would later give him a cheque for it. After your manager had declined
to authorize your cheque on the basis that your current account was
overdrawn you went on to self authorize the transaction which you had
no authority to do and was against bank procedure.
Gross misconduct
in that on the 31st August 2001, you authorized a
transaction by the same teller, Glen Ndaba, on your over drawn
current account for the amount of E80 without the necessary authority
to do so and against the bank procedure.
Gross misconduct
in that on three occasions on or about the dates between the 12th,
15th and 17th September 2001 you requested
Cebsile Nkomo to give you cash in the amount of E150.00, El,000 and
E100 respectively, from her till. This was on the understanding that
you would refund her later with a cheque which was highly irregular.
You then
proceeded to self authorize the transaction on the 17th
September 2001 for the amount of E100.00 which you had no
authority to do and was against bank procedure.
Gross misconduct
in that on the 26th September 2001 you instructed Cebisle
Nkomo to give you cash from her till in the amount of E120.00 on the
understanding that you would replace it much later in the day with a
cheque. When the transaction was processed upon receipt of your
cheque, it generated a referral which was rejected by the supervisor,
Lalie Makgathao and your manager, Hebert Magugu Mdluli on the basis
that your current account was overdrawn, you then replaced the money
the following day. This was highly irregular and against bank
procedure ".
See Bundle NR1'
pp 27 and 28.
The Applicant
was found guilty on all the charges and on the 8th
November 2001, Mr. 1 P. Mabou the Chairman of the disciplinary
enquiry found as follows:
" The
example set by Mr. Nhlengetfwa (the Applicant) in that the banks
strict and rigid controls which are in place to safeguard
unauthorized access to the bank cash assets can be flouted at will,
cannot be condoned.
Similarly, by
involving his staff in facilitating his actions, were we to impose a
penalty other than dismissal, this would create a precedent that may
encourage similar incidents of misconduct of this nature.
There is per
force an obligation on our part to ensure that the bank is unbending
in imposing the severest penalties in cases of serious misconduct
In the
circumstances, I rule that Mr. Nhlengetfwas services be terminated
with immediate effect.
He is to receive one months
salary in lieu of notice". See bundle *R1' p. 45.
On the 9th
November the Applicant was dismissed. He appealed the decision on the
12th November 2001. On the 20th November 2001,
the Applicant's appeal was dismissed by Mr. S. C. Ngidi, Director,
Group Human Resources. Mr. Ngidi was employed by the Standard Bank in
South Africa.
The Applicant
was not given opportunity to appear before the appeal tribunal. The
Applicant cited the failure to give him a hearing during the appeal
as un-procedural and further evidence of victimization by the "white
boys".
The Applicant
reported this dispute to the Commissioner of Labour. Conciliation
efforts by the Commission Mediation and Arbitration Commission (CMAC)
failed and a certificate of unresolved dispute was issued on the 3rd
April 2002. The present application was lodged on the 18th
October 2002.
The Applicant
told the court in his evidence in chief that he had pleaded guilty to
the charge of overdrawing his account by E80 without authority. He
pleaded for a lesser sentence by way of a warning letter because this
was a first offence. During cross examination, he also conceded to
have admitted the rest of the charges.
At the time of
the dismissal, he earned E7,702.00 (Seven Thousand Seven Hundred and
Two Emalangeni) salary per month. On the 14th march 2005,
he opened up a filling station business. Before that he was
unemployed. He was born on the 11th June 1947. He was
married with three minor children. He had during the period of
unemployment suffered a lot of financial difficulties and struggled
to maintain himself and his dependants.
Other than the
one month notice pay, he had also received payment in lieu of 6
months leave and pension.
He sought
reinstatement with payment of arrear salary. In the alternative he
sought maximum compensation for unfair dismissal and payment of
terminal benefits.
Under cross
examination he admitted that the bank lost E52,000 (Fifty Two
Thousand Emalangeni) due to negligence with respect to a matter
involving one Mr. Ndlela. He however said it was due to the fault of
his subordinate but not himself. He alleged that the bank was not
consistent in the way it dealt with similar cases of losses. He was
not dismissed then though but was demoted. He accepted the demotion
in writing. A letter signed by him to that effect was produced in
court.
The Applicant
did not deny sourcing funds in the manner described in the charge
sheet. He however sought to justify his actions in one way or the
other under cross examination. He emphasized the fact that these
transactions of unauthorized cashments by himself did not result in
any loss to the bank.
He accepted
however he had been placed in a position of utmost trust by the bank
but had breached that trust by getting involved in unauthorized
transactions for his own benefit. He said though that he took cash
and replaced it with cheques or cash, and had no intention to steal
from the bank. This was a result of financial pressure on him at the
time due to the daily travel he had to make between Mbabane and
Nhlangano. He could not explain why he continued with similar
transactions even after he had been housed at Nhlangano.
He admitted
authorizing his own bank transactions. He said that the bank had no
rules that prohibited a branch administrator from doing so though he
had no prior arrangement with the bank. The unauthorized overdraft at
one point exceeded El.600 (One Thousand Six Hundred Emalangeni).
Intances where
he was offered performance bonus and salary increments were cited to
dispel any racial bias against him by the management of the bank. He
admitted that he had received bonuses and promotions but said that he
deserved the bonuses, salary increments and promotions he had
received from time to time.
The Respondent
called Glen Ndaba (RW1), Cebsile Nkomo (RW2) and Nhlanhla Joseph
Kunene (RW3) to justify the dismissal of the Applicant as per the
dictates of Section 42 (2) (a) and (b) of the Employment Act No. 5 of
1980.
Glen Ndaba as
stated earlier was a teller at the Nhlangano branch where the
Applicant was a Branch Administrator. She confirmed that the
Applicant asked for E500.00 from her and in exchange gave her a
cheque for the same amount. When she captured the transaction in the
computer it generated a referral. She went to a supervisor, a Mr.
Mdluli for authorization of the transaction but Mr. Mdluli declined
to approve the referral. This meant there were no funds in the
account of the Applicant. Later on, she informed the Applicant about
the referral and he instructed her to resent the same. The same was
approved but she did not know by whom. She told the court that she
was not aware of the so called "unauthorized staff overdraft".
Cebsile Nkomo on
the other hand told the court that the Applicant/equested for cash
from her whilst she worked as a teller. He gave her a cheque later
and opened the computer to authorize the transaction himself. On the
26th September 2001, she had to use her own money to
balance the accounts because the Applicant had taken cash but had not
given her a cheque in exchange. She said that she was aware that the
Applicant had an unauthorized overdraft facility at the bank. She
however said she did not understand what the facility was about.
Nhlanhla Joseph
Kunene (RW3) was an Internal Auditor with the Bank. He had worked for
the bank for 21 years.
His routine work
was to conduct internal audits and investigations of untoward
transactions in the bank.
He investigated
this matter and compiled a report submitted as R23 - 26. He had
interviewed both RW1 and RW2 in the cause of the investigation. He
corroborated their evidence materially.
He told the
court that no one in the bank even the Managing Director himself
could authorize his own overdraft. These were always authorized by
the credit department of the bank.
He refuted the
evidence by the Applicant to the effect that there was "unauthorized
staff overdraft facility". He said the referral procedure in the
bank was in place to ensure authority for each transaction and no one
had permission to authorize his own transaction in the manner the
Applicant had.
The witness told
the court that the Applicant's misconduct was compounded by his
involving his subordinates in the same.
The witness was
non committal on the issue of racism at the bank but told the court
that were such an issue to be raised, the bank would definitely deal
with the particular incident.
The report by
the witness formed the basis for the charges faced by the Applicant.
He did not
testify at the disciplinary hearing though. He told the court that it
was normal for an employee who has appealed against an adverse
decision to be called to the hearing. He said it was abnormal for the
Appeals panel to take a decision before calling the employee to
appear before it.
The tellers RW1
and RW2 did not also testify at the disciplinary hearing because the
Applicant did not contest their evidence as contained in the reports.
RW3 termed the
conduct of the Applicant as depicted by RW1 and RW2 and himself to be
gross misconduct. He denied there was bad blood between him and the
Applicant. He said he was simply doing his job.
The witnesses
for the Respondent have made out a case of gross misconduct by the
Applicant on a balance of probabilities. The Applicant did not
seriously contest the damning evidence adduced by the witnesses in
support of the misconduct he had committed.
The Applicant
was clinging on straws in his narration of a long history of
harassment and victimization allegedly based on race. Such was
completely unsubstantiated and had no bearing to the events at the
Nhlangano branch in the year 2001 that led to his dismissal.
Even if there
was any element of truth in the allegations of hardship that he faced
upon transfer to Nhlangano, such cannot be justification for the
gross flouting of bank procedures, and the involvement of his
subordinates in the questionable transactions whilst he held the
position of trust of Branch Administrator.
The failure by
the Respondent to call the Applicant to the appeal hearing before
dismissing the same should not go without mention. It is most
probable that his attendance there may have changed nothing given the
admissions he had made and the plea of guilty by the applicant with
respect to some of the charges leveled against him.
Unless a party
has waived his right to appear before the Appeals hearing or the
Agreed procedure Code precludes such appearance, it is most imprudent
for an employer to determine the Appeal without hearing the employee.
Such may, in appropriate cases compromise what could otherwise have
been a good cause to dismiss an employee.
In the case of
Num v Zinc Corporation of South Africa f!978^ 8 IL3 399 (IC) at
502 E-H
It was held that
an employee must be informed of the decision and sanction with
reasons in the event of an adverse decision and he should be allowed
to appeal to another tire of management.
The basic
requirements for a fair dismissal are succinctly stated in Articles 4
and 7 of the ILO Convention No. 158 of 1982 (cf part 11 of
Recommendation No. 166 of 1982, Standard of general application).
Article 7 deals
with the procedural aspect, stipulating that:
"[t] The
employment of a worker shall not be terminated for reasons related to
the workers conduct or performance before he is provided with an
opportunity to defend himself against the allegations made unless the
employer cannot reasonably be expected to provide this opportunity'.
Defending
oneself relates to every step of the disciplinary process as provided
in the code at the undertaking.
In this case,
clearly the Applicant was entitled to an appeal hearing in terms of
the disciplinary code in place. An appeal process that unilaterally
excludes a hearing is fatally flawed. Such a flaw in itself amounts
to a negation of justice and should be avoided by all means.
Having said
that, upon taking into consideration the evidence before us, the
court is satisfied that there is sufficient justification for the
dismissal of the Applicant, in that he has admitted to have conducted
himself in a manner unworthy of an officer in a position of high
responsibility and trust.
The employer has
therefore proven on a balance of probabilities that the Applicant was
dismissed for a reason permitted by Section 36 (L) of the Employment
Act.
Given the nature
of the offences committed, the nature of work he was engaged in and
the reckless conduct of involving his subordinates in the misconduct,
the Respondent had no alternative but to dismiss him.
Accordingly it
was fair and reasonable to dismiss him in terms of Section 42 (2) (b)
of the Employment Act.
No order as to
costs.
The members
agree.
NDERI NDUMA
JUDGE
PRESIDENT - INDUSTRIAL COURT
