IN THE
INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE
In the matter between:
CASE
NO. 301/2000
THEMBI
HLATSHWAYO………………APPLICANT
and
CADBURY SWAZILAND
(PTY) LTD….RESPONDENT
CORAM:
NDERI NDUMA: PRESIDENT
JOSIAH YENDE : MEMBER
NICHOLAS MANANA: MEMBER
FOR APPLICANT: S. MAGONGO
FOR RESPONDENT: Z. D. JELE
JUDGEMENT- 10/11/05
The Applicant was employed by
the Respondent on the 19 July 1991 until she was dismissed on the 6th
August 2000.
As a way of assisting staff
to build and develop property the Respondent granted building loans
to the staff.
The cheque would normally be
issued to the supplier or building merchant who would provide the
building material directly to the beneficiary of the loan.
On Friday the 25th
April 1997 whilst one Nomvelo Sihlongonyane was on maternity leave
the Applicant under the pretext that she was acting on Nomvelo's
request took the Respondent's cheque payable to Skonkwane Hardware in
the sum of E3,500.00 and used it for her own benefit.
Subsequent to a disciplinary
hearing the Applicant was dismissed from employment after she had
been charged with fraud and/or dishonesty relating to company funds.
The dismissal was confirmed upon appeal. The dismissal was in terms
of Section 36 (b) of the Employment Act No. 5 of 1980 (the Act).
In her own evidence the
Applicant told the court that she took the cheque meant for Nomvelo
Shlongonyane upon her instruction to do so. She admitted that she
used the cheque to purchase material for building her house in terms
of an agreement she had with Nomvelo to the effect that she would get
half of the material and Nomvelo would get the other half.
Nomvelo in her testimony
before court and at the disciplinary hearing denied any such
agreement. She also denied ever receiving part of the material
purchased by the Applicant as she alleged.
The Respondent was forced to
reimburse Nomvelo with another cheque to replace that had been
unlawfully appropriated by the Applicant.
The alleged agreement between
the Applicant and Nomvelo was not in writing nor was any witness
called to corroborate the testimony of the Applicant in this respect.
Nomvelo stated that she had
just bought a piece of land at Madonsa and applied for the loan to
build a house. It was therefore improbable that she could purchase a
piece of land and then give the money to construct the house to
another person to use for her own benefit only to be paid back in
installments.
Nomvelo said that the
Applicant had become aware of the loan application because she had
involved the Applicant, a work colleague to assist her with obtaining
a quotation from Skonkwane since on that date the Applicant was going
to town. Nomvelo herself, at the time was heavily pregnant and as
such it was going to be strenuous for her to go to town for purposes
of sourcing out the quotation. Unfortunately the Applicant
dishonestly took advantage of the situation whilst she was at home.
The Respondent called the
second witness Anneter Vilakati who told the court that the Applicant
had called her to enquire if Nomvelo's cheque was ready and upon
verifying that Nomvelo was on maternity leave she had allowed the
Applicant to collect the cheque on her behalf.
The following day, Nomvelo
approached her office to collect the cheque and it was then when
Anneter realized that something was amiss.
Anneter called the two ladies
for a meeting at her office. The Applicant did not allege she had
authority to collect or use the money. She pleaded that she be
allowed to pay the money in installments. Nomvelo would not hear
anything of it and Anneter decided to report the matter to her
superiors.
From an analysis of the
entire evidence presented before court, it is most improbable that
the Applicant had any authority to collect the cheque let alone to
use it to purchase her own construction material.
It is also very unlikely that
she gave half of the material to Nomvelo. It is clear that the
Applicant unlawfully took Respondent's cheque without her authority
and used it for her own benefit to the detriment of Nomvelo and the
Respondent. The testimony of Nomvelo and that of Anneter was candid,
consistent and credible. The Applicant's version of events was highly
unlikely and incapable of belief. She by and large lacked
credibility.
In simple terms, she was
dishonest and had committed a cognizable offence,
In the book, Workplace Law, John Grogan
writes as follows at page 154:
"Theft is regarded as
one of the most serious forms of disciplinary offences, normally
justifying dismissal at first instance, regardless of the value of
the property involved, the employees length of service, the absence
of previous warnings or whether the employee has subsequently
returned the property".
Furthermore in the case of Central
News Agency (Ptv) Ltd vs Commercial catering and Allied
Workers Union and Another (11911 12 IL3 340 LAC, The South
Africa Labour Appeal Court stated:
"In my view its
axiomatic to the relationship between employer and employee that the
employer should be entitled to rely upon the employee, not to steal
fromn the employer....... A breach of this duty goes to the root of
the contract of employment and of the relationship between employer
and employee".
This was therefore a
dismissible offence in terms of Section 36 (b) of the Employment Act.
The Respondent has shown that it had dismissed the Applicant for a
lawful reason in terms of Section 42 (2) (a) of the Act.
Furthermore, given the
gravity of the offence the court is satisfied that it was fair and
reasonable to dismiss the Applicant in the circumstances of the case.
Accordingly the Respondent had further discharged the onus placed on
it by Section 42 (2) (b) of the Act.
The application is dismissed.
The members agree.
NDERI NDUMA
JUDGE PRESIDENT- INDUSTRIAL COURT
