IN THE
INDUSTRIAL COURT OF SWAZILAND
HELD AT
MBABANE
CASE NO.
316/2000
In the matter
between:
PHILLIP
MBONGISENI SI ME LANE ….......APPLICANT
And
SWAZILAND BREWERIES
LTD…………….RESPONDENT
CORAM:
NDERI NDUMA:
PRESIDENT
JOSIAH YENDE:
MEMBER
NICHOLAS MANANA: MEMBER
FOR APPLICANT :
L. SIMELANE
FOR RESPONDENT :
M. SIBANDZE
JUDGEMENT -
12/05/05
The Applicant
was employed by the Respondent in August 1982. He worked as an
Empties Clerk earning a monthly salary of Two Thousand Six Hundred
and Twenty Five Emalangeni (E2,625.00). His services were terminated
by the Respondent on the 15th January 1997. He had thus
served the Respondent for over fourteen years and was therefore an
employee protected under Section 35 (2) of the Employment Act.
Section 35 (2)
reads:
"No employer shall
terminate the services of an employee unfairly".
Section 35 (3)
goes on to list categories of circumstances that will be deemed to be
unfair reasons for dismissal. On the other hand Section 36 lists down
fair reasons for dismissal.
On or about
November 1996 the Applicant was charged by the Respondent with three
offences namely;
(a) Committing a dishonest
act towards the company;
(b) Willful failure to
carry out a reasonable instruction
(c) Transgression of
specific company rules.
He was called to
a disciplinary hearing. He was found guilty as charged.
He was then
dismissed. He appealed the decision but the same was confirmed.
The Applicant
was not summarily dismissed. He was paid notice pay, additional
notice, leave pay and salary for December 1996 and the part of
January 1997 he had worked. He received a total sum of Thirteen
Thousand Six Hundred Twenty Five Emalangeni and Seventeen Cents
(E13,625.17).
The Applicant
denies all the charges preferred against him. He states that the
dismissal was both substantively and procedurally unfair.
He testified in
support of the particulars of claim to the effect that he was not
dishonest in his work in that Themba Vilakati had brought the 56
crates of empty bottles on the 1st November 1996. It is
these crates which he is alleged to have colluded with others to
remove from the company premises under the false pretence that they
had been brought by a customer when infact no such crates had been
brought for refilling and/or exchange.
Themba Vilakati
testified in support of the Applicant's case both at the disciplinary
hearing and before court.
He told the
court that on the 1st November 1996 he brought 56 crates
of empty bottles to the Respondent premises. He deferred taking
drinks in exchange on the day but one Mr. Thwala had to collect the
drinks the following day.
The two were
confronted with the testimony by the Respondent that no record of Mr.
Vilakati driving into the Respondent's premises on the 1st
November 1996 existed with the security at the gate who would always
have the full particulars of every customer's motor vehicle entering
the premises.
Furthermore the
Applicant did not check physically the alleged 56 crates but
allegedly relied on information given to him by a third party to
generate a checkers note produced as exhibit Rll. A checkers note was
a document generated after customers returned crates with empty
bottles to the company.
In this
particular case the exhibit shows that a vehicle SD 832 LL dropped 56
crates to the premises on the 1st November 1996.
On the 7th
November a customer named Sibusiso Simelane turned up at the premises
of the Respondent with the checker's note and tried to redeem 56
crates of empties.
This raised
suspicion because there was a rule of practice that checkers notes
must be used on the same day they are generated either by redeeming
cash or exchanging them with an equal number of full bottles.
To address the
issue of suspicion that eventually led to the prosecution and
dismissal of the Applicant, the Respondent called various witnesses,
the first of whom was Sibusiso Brian Hlanze. He was at the time of
the trial the Depot Manager of the Respondent. At the material time
leading to the dismissal of the Applicant he was the Warehouse
Superintendent. He received a report from the Security Superintendent
on the matter at hand.
He noted the
following anomalies which drew suspicion on the claim; it was done
days after the checkers note was generated which was unusual, the
gate register did not reflect entry of the alleged motor vehicle that
had delivered the crates and no such record was available on the
loading docket at the loading bay.
It was the
responsibility of the Applicant to receive a customer with empties
and upon checking the number of empties generate a checkers note
which was then signed by the Applicant and the customer to
acknowledge the number of empties received by the Respondent from
that customer.
The Applicant
had to do a physical count. This was mandatory. The particulars of
the motor vehicle that brought the empties is recorded in the
checkers note. The witness explained that the record of the motor
vehicle SD 832 LL did not appear on the security register and the
loading docket and therefore he concluded that no such delivery took
place.
He refuted the
evidence of Mr. Vilakati that he had made such a delivery on the 1st
November. His other conclusion was that the checkers note generated
by the
Applicant for 56
crates of empties was fraudulent. This meant that the Applicant was
dishonest and his dismissal was fair in the circumstances.
The witness was
the supervisor of the Applicant. The reconciliation done by the in
house accounting clerk Nonhlanhla confirmed the suspicion that indeed
there was a shortage of 56 crates, if the checkers note was genuine.
Nonhlanhla
Fakudze testified as RW2. She was the Credit Manager at the time of
the trial. In November 1996 she worked as Operations Accountant.
According to her
records on the 1st November she did no have any entry of
the 56 crates of empties on her reconciliation. Her conclusion was
that there were no returns of the 56 crates from the said customer on
the 1st November.
She testified at
the disciplinary hearing where she gave the same account.
The third
witness for the Respondent was Clement Dlamini. He was the Loss
Control Manager of the Respondent in 1996.
He checked all
the relevant registers and records and there was no evidence that
motor vehicle SD 832 LL delivered 56 crates of empties on the 1st
November. Accordingly, he concluded that the checkers note raised by
the Applicant was fraudulent.
He corroborated
the evidence of RW1 and RW2 in all material respects.
The evidence of
the three witnesses was mutually destructive with that of the
Applicant and his witness Mr. Vilakati.
The records in
possession of the court by and large supported the contention by the
Respondent that no delivery of 56 crates of empties by Mr. Vilakati
was made on the material day.
It is either
that the Applicant deliberately and with intention to defraud the
Respondent raised the checkers note in question or that he was so
grossly negligent on the day that he made a false checkers note of 56
crates of empties to the potential detriment of the Respondent.
The Applicant's
case is not credible and is unworthy of belief.
By his conduct
the Applicant had compromised the relationship of trust between
himself and the Respondent. He could no longer be trusted as a
custodian of the Respondent's stock hence the dismissal.
The Respondent
through its witnesses has established on a balance of probabilities
that it dismissed the Applicant for an offence permitted by Section
36 of the Employment Act in that he had committed a dishonest act
against his employer.
Alternatively
his conduct engendered the Respondent similar consequences as those
contemplated by Section 36 of the Act.
Accordingly the
onus placed upon the Respondent in terms of Section 42 (2) (a) of the
Employment Act was discharged.
Furthermore
considering the entire circumstances of the case, it was fair and
reasonable to dismiss the Applicant. The Respondent therefore has
also discharged its onus 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
