IN THE
INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE
CASE NO.
334/2002
In the matter
between:
LINDIWE
DLAMINI……………………….APPLICANT
and
SWAZI CANDLES (PTY)
LTD……………RESPONDENT
CORAM
N. NKONYANE: ACTING JUDGE
G. NDZINISA: MEMBER
D. MANGO: MEMBER
FOR APPLICANT: M. DASILVA
FOR RESPONDENT: M. SIBANDZE
JUDGEMENT
-19/05/05
This is an
application for determination of an unresolved dispute in terms of
Section 85 of the Industrial Relations Act, No 1 of 2000.
The applicant is
seeking an order for re-instatement and payment of arrear wages from
date of dismissal to date of re-instatement or alternatively payment
of notice pay, additional notice pay, severance allowance and maximum
compensation.
The applicant
was employed by the respondent on 29.06.1992 as a candle maker. She
was in continuous employment by respondent until she was dismissed in
March 2002.
The applicant
says in her papers that the respondent dismissed her on the basis of
allegations that she stole six candles. The applicant denied that she
stole the candles.
She reported a
dispute to the Commissioner of Labour. The Commissioner of Labour
accordingly transmitted the matter to the Conciliation and Medication
and Arbitration Commission (CMAC). The appointed CMAC Commissioner
could not resolve the dispute and a certificate of unresolved dispute
was issued dated 16th May 2002 and it is annexed to the
applicant's application.
The applicant
was the only witness for her case. For the respondent three witnesses
were led before the court.
The applicant
told the court that on 13/03/2002 after she had finished work, she
took her bag and went out to wait for the bus. She said the security
guard, Nkosinathi Gama searched her bag but did not find anything.
She said whilst still waiting for the bus the security guard came to
her and told her that the lady that she was working with was calling
her. She went to the office where that lady was. In that office she
was asked if she knew anything about the six candles that were in
front of the lady that had called her . She said she told her that
she did not know anything about the candles.
The name of the
lady that called her was Anne Leibrandt.
The applicant
said she came to work on the following day, 14/03/2002 and nothing
was done to her.
She said on
Friday 15/03/2002 at about 1:00 P.M. she was called by management and
was asked if she knew anything about the candles, and she told them
that she did not know anything.
She said
management told her that it had been discovered that the candles were
stolen by her. She was told to go home and return on Monday to
collect her salary.
The respondent's
case was that the applicant was on that day, 13/03/2002, given
twenty-four church candles on which she was to work on and put a
colour print on them. She however managed to finish eighteen candles
and six remained which were found in the applicant's bag wrapped with
an apron.
RW1 Nkosinathi
Gama told the court that after she had searched the workers on that
day, he began to patrol the premises of the company. He said he then
found the applicant's bag wrapped with a piece of cloth containing
the six church candles.
RW1 said he knew
that the bag belonged to the applicant as she had come with it in the
morning. RW1 said he confronted the applicant about the found
property, and she told him that she was tempted. RW1 told the court
that the applicant also admitted before the management that it was
her who stole the six candles and asked for forgiveness.
RW1 said the
applicant was supposed to return the remaining six candles to Mandla
Dlamini for safe keeping.
RW2, Mandla
Dlamini told the court that the applicant admitted the theft and
apologized to management. RW2 said the applicant was supposed to
return the remaining six candles to him. He denied that there was an
arrangement between him and the applicant not to return the candles.
RW3, Bernard
Abramovitz told the court that he was one of the directors of the
company and that he was present during the disciplinary hearing of
the applicant. He said the applicant confessed and asked for
leniency.
The Respondent's
case therefore was that the applicant was fairly dismissed in terms
of the Employment Act No.5 of 1980 on account of the theft of the six
church candles.
During the
submissions the applicant's attorney urged the court to find that
there was a discrepancy between RW1 and RW2's evidence relating to
what transpired during the disciplinary hearing. She said the
discrepancy was material to the case of the applicant as it was the
applicant's argument that no hearing was held before she was
dismissed.
It was also
argued that there was discrepancy between RW1 and RW2's evidence as
to whether Anne Leibrandt did ask or say anything during the hearing.
The court
however, is unable to agree with the applicant's attorney's
submissions that the court should find that no hearing was held
before the applicant was dismissed.
In her opening
statement the applicant's attorney told the court that the
applicant's case was that the dismissal was unfair because the
applicant was not given an opportunity to state her case during the
hearing and not that there was no hearing.
It was also not
put to the respondent's witnesses that no hearing was held before the
applicant was dismissed.
Furthermore,
during the cross examination of the applicant, she said she did get
the opportunity to deny the allegations, but she wanted to be
represented by one of the workers.
There is no
doubt to the court that a hearing was held, but was clearly not
satisfactorily conducted as the applicant was not given opportunity
to prepare for the case and was also not advised of her right to be
represented if she wanted to.
It was also
argued on behalf of the applicant that there was contradiction as to
what were the candles wrapped with. It was argued that such
contradiction casts a doubt whether the theft occurred or not.
The
contradiction or discrepancy was in regard to name given to the piece
of cloth that was used to wrap the six church candles. Some of the
witnesses referred to it as an apron and others referred to it as a
traditional cloth or "umhelwane".
Whatever name
was given to that piece of cloth, the applicant did not deny however
that it was the piece of cloth that she used to protect herself with
when doing her work.
Furthermore, the
applicant did not deny that the six church candles were the remaining
six candles that she had been working on. The identity of the church
candles was therefore not in dispute.
The applicant
said she had agreed with RW2 that she was not to return the remaining
candles. RW2 however denied that there was such an agreement. RW2's
evidence that the applicant was supposed to return the six candles to
him was not challenged during cross-examination.
The court will
therefore accept RW2's evidence that it was the procedure that the
remaining candles were to be returned to him for safe keeping at the
end of the day.
The court will
accept the applicant's evidence that nothing was found in her bag on
being searched by RW1. This is more so because the court is of the
view it was highly unlikely that the applicant would put the six
candles in her bag when she knew that the security guard was going to
conduct a search.
Furthermore, the
minutes reflect that the evidence led at the hearing was that the
candles were wrapped in an apron and put in a plastic packet.
From the
evidence before it the court will make the following findings;
First, that the
applicant was on 13/03/2002 given twenty-four church candles to work
on. She finished eighteen and six remained.
Second, she did
not return the remaining candles to the production manager, RW2.
Third, the six
candles were later on that same day recovered by the security guard
RW1, outside the fence of the respondent's premises and wrapped with
the applicant's apron or protective cloth and put inside a plastic
bag.
Fourth, no
proper disciplinary hearing was held as the applicant was not
servea\with a written notice of the hearing. She was also not given
sufficient time to prepare for the hearing and was not advised of her
right to representation and appeal.
Fifth, the
candles were contained in a plastic bag and were not found in the
applicant's handbag.
Sixth, that the
applicant admitted the theft to management.
Besides the
evidence of the admission by the applicant, the court would still
have come to the conclusion that the applicant committed the crime of
theft. This is because the respondent needed only to prove the
commission of the offence on a balance of probabilities - that is,
the inference that the applicant committed the conduct alleged must
be more likely than that she did not. (SEE JOHN GROGAN "WORK
PLACE LAW" (2001) 6th EDITION AT PAGE 138).
In this case it
was proved that the six candles were the remainder of the twenty-four
candles that had been given to the applicant to work on. It was
proved that the apron that was used to wrap the candles belonged to
the applicant. It was proved that she was supposed to return them to
the production manager, but she did not do that.
The court will
therefore come to the conclusion that the respondent has proved on a
balance of probabilities that it dismissed the applicant for an
offence permitted by Section 36(b) of the Employment Act in that she
had committed a dishonest act against her employer.
The respondent
has therefore discharged the onus resting on it in terms of Section
42(2)(a) of the Employment Act.
The court has
already pointed out, and it was clear from the evidence that there
was no procedural fairness during the disciplinary hearing. In the
Industrial court of Appeal case of the Central Bank of Swaziland V
Memory Matiwane, case No.110/1993 on page 3 Sapire JP, held as
follows:-
"The
provisions of the act require the Industrial Court to take into
account all the circumstances of the case in deciding whether there
has been an unfair dismissal in the first place and secondly where
such unfair dismissal arises from a defect in the procedures, the
court is obliged to enquire whether in all the circumstances of
the case are such that the employee is entitled to compensation at
all and if so in what amount.... "(my
emphasis).
In the present
case the only unfairness of the dismissal arises from the defect in
the procedures. The court must now enquire whether in the light of
all the circumstances of the case, the applicant is entitled to any
compensation at all and if so in what amount.
The applicant
committed a dishonest act against her employer, her very source of
livelihood. She breached the relationship of trust between herself
and the employer. The employer was at that time undergoing financial
difficulties and the employees were aware of that. The respondent's
sole activity was candle making and for any employee to steal any one
piece of candle was financially detrimental to it.
There was
evidence that the respondent treated its workers as family.
From the
foregoing it seems to the court that though the dismissal was
procedurally defective, this is not a case where the court should
make an order for compensation at all.
Furthermore, at
common law the respondent could justifiably summarily dismiss the
applicant as she committed a dishonest act.
The respondent
has therefore satisfied the requirements of section 42(2)(b) of the
Employment Act, namely that taking into account all the circumstances
of the case, it was reasonable to terminate the service of the
applicant.
The application is
therefore dismissed. No order for cost is made. The members agree.
N. NKONYANE
ACTING JUDGE- INDUSTRIAL
COURT
