IN THE
INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE
In the matter
between:
CASE NO.
339/2001
SAMUEL P.
SIMANGO……………………….APPLICANT
and
SWAZILAND
DEVELOPMENT &
SAVINGS
BANK………………………………RESPONDENT
CORAM
N. NKONYANE:
ACTING JUDGE
G. NDZINISA:
MEMBER
D. MANGO: MEMBER
FOR THE APPLICANT: P.R.
DUNSEITH
FOR THE
RESPONDENT: Z.D. JELE
JUDGEMENT
11.10.05
This is an
application for the determination of an unresolved dispute in terms
of Section 85(2) of the Industrial Relations Act No. 1 of 2000.
The applicant is
a former employee of the respondent bank. At the time when the
dispute arose he was holding the position of Head of Commercial
Credit.
The applicant's
claim is that the respondent unlawfully and unfairly withdrew his
employment benefit without any prior hearing and without his consent.
The applicant wants the court to make an order that the respondent
restores the said benefit.
In his statement
of claim the applicant stated that he was first employed by the
respondent on the 6th November 1996 as Senior Manager Risk
Management. He said he was allocated a company vehicle, to wit, a
Toyota Camry 2L executive sedan, for his personal use both on and off
duty. He said the respondent paid the costs of fuel. He said he was
being taxed for the private use of the motor vehicle. He said he used
the motor vehicle until 25th April 2001 when the
respondent withdrew the benefit and he was ordered to surrender the
motor vehicle to the Administration Manager.
The application
is opposed by the respondent. In its reply the respondent said that
the applicant's terms and conditions of employment did not provide
for a company motor vehicle. The respondent said that the applicant
was never allocated a motor vehicle on a personal to holder basis.
The respondent averred that the motor vehicle was allocated to the
department and placed under the control of the applicant to be used
in the carrying out of his duties.
The applicant
testified under oath before the court. On behalf of the respondent
three witnesses testified.
It was not in
dispute that the applicant was using the motor vehicle both on and
off duty. It was not in dispute that he was being taxed for using the
motor vehicle as an employment benefit. It was also not in dispute
that the motor vehicle was eventually withdrawn from the applicant
and he was ordered to surrender it to the Administration Manager.
What is in
dispute is how the applicant came to use the motor vehicle on and off
duty. The applicant told the court that he got permission to use the
motor vehicle off duty from the then Acting Managing Director, Alan
Dixon. The respondent said the applicant was never granted such
permission, as there was nothing in writing to that effect.
The evidence
before the court revealed that the applicant used the motor vehicle
for about four years before it was withdrawn. During these years
management never queried him about the use of the motor vehicle even
after hours. The applicant told the court that the other senior
expatriate managers at the bank had personal motor vehicles. He
raised a query about that with Mr. McNie, who was the Managing
Director at that time. Mr. McNie was a member of a management team
called AMSCO. Mr. McNie however left the bank without having resolved
the applicant's query.
After Mr. McNie
left, a certain Mr. Alan Dixon became the Acting M.D. The applicant
pursued the matter with him. At that time it was a certain Mr. P.J.
Harvey and the applicant who were senior managers. Mr. Dixon acceded
to the applicant's request, and he was allocated the motor vehicle.
The applicant was also given petrol coupons. Mr. Harvey and Mr. Dixon
also had personal coupon books. The applicant told the court that the
other senior managers were aware that he was using the motor vehicle
for work and personal errands.
When the
applicant was allocated the motor vehicle RW1, Vinah Nkambule was not
at Swazi Bank. RW1 told the court that the bank's policy was that all
motor vehicles were to be parked at the bank's premises.
During
cross-examination RW1 conceded that she did not have knowledge of the
direct communication between the parties. She said she depended on
the letters on file.
RW2, Mavis
Vilane told the court that she was the Senior Manager, Human
Resources since 2003. She said it was a question of fact that the
applicant was using the motor vehicle off duty. She said when the
team of management IDI was leaving and revising the policies of the
bank, the taxing of the applicant's benefit was then stopped. She
also told the court that the organization chart on page 19 of exhibit
"B" was in operation in November 1996. That chart shows
that the applicant was one of the three senior managers at that time.
RW3 Justice
Thulani Mbuli told the court that he was the Administration Manager
at the relevant period. He said he was responsible for the bank's
motor vehicles. He said some motor vehicles were allocated to various
posts and others to the pool section. He said during the AMSCO term
of management of the bank, personal motor vehicles were allocated to
the M.D. and the two senior managers who were on contract. He said
any other staff member would be written a letter to say whether or
not he/she should get a bank's motor vehicle. He said he was never
given a letter entitling the applicant to the bank's motor vehicle.
He said when he became the Administration Manager, the applicant was
already using the motor vehicle. He said he assumed that he was given
the right to use the motor vehicle.
During
cross-examination RW3 told the court that although the applicant was
a senior manager, he was not however equal to the two other senior
managers. He said the other two expatriate senior managers were given
personal motor vehicles in terms of their written contracts of
employment.
The applicant,
RW2 and RW3 were impressive witnesses. RW1 was not an impressive
witness. She was not at the respondent's establishment at the
relevant time. She rightly told the court that she depended on the
correspondence to deal with the issues that arose when she was
briefly appointed Acting M.D. of the bank.
The question
that the court must determine is whether the applicant had the right
to the benefit that he was enjoying. It was argued on behalf of the
respondent that he did not have such a right, as it was not part of
the terms and conditions of his employment contract.
In support of
the respondent's argument, the court was referred to the case of
TITUS NZIMA Vs SWAZILAND POSTS AND TELECOMMUNICATIONS CORPORATION
(I.C.) case No. 139/95. In that case the applicant's contention
was that the respondent had unilaterally and unlawfully withdrawn
payment of housing allowance, thus the respondent changing the
conditions of employment of the applicant. The respondent's contrary
argument was that the housing allowance was never a term of the
employment contract capable of enforcement. The respondent contended
that it was an item that was raised as being under consideration, and
that the payment of the allowance was erroneously made to the
applicant. The respondent said upon the discovery of the error, the
payment was then withdrawn in terms of Section 56 (1) (e) of the
Employment Act No. 5 of 1980.
The court's
finding in that case was that it was never a term of the contract of
employment that the applicant shall be entitled to housing allowance.
The application was accordingly dismissed.
That case is
however distinguishable from the present one. In the present case the
applicant is not relying upon the terms of his contract of employment
with the bank. The applicant's contention is not that he was given
the motor vehicle to use on and off duty in terms of his written
contract of employment.
The applicant,
in the pleadings and when giving evidence in court said that he was
allocated the motor vehicle to use both on and off duty. The
applicant was a senior manager. The other senior managers were
allocated motor vehicles for personal and business purposes. The
other senior managers were expatriates and the applicant was a local.
The applicant
then wrote to the Managing Director and asked that, he also be
allowed full access to a company motor vehicle. The Managing Director
at that time, Mr. Michael M. McNie, did not accede to this request.
Instead, Mr. McNie gave instructions that the motor vehicle be
allocated to the department. The senior manager of the department,
being the applicant was to have control of the motor vehicle.
The applicant
pursued the matter of full access to the company car. Mr. McNie
however had to leave the bank. Mr. Alan Dixon became the Acting
Managing Director. The applicant again pursued the matter with him.
Mr. Alan Dixon eventually acceded to the applicant's request.
The applicant
said he was allocated a Toyota Camry 2L sedan. He said the motor
vehicle was previously being used by Mr. Alan Dixon and was involved
in an accident, and Mr. Dixon had been allocated another motor
vehicle.
The respondent
is urging the court not to believe the applicant's evidence that he
was allocated the motor vehicle mainly for two reasons. One, because
it was not a term of his contract of employment. Two, because there
was nothing in writing to prove that he was indeed allocated the
motor vehicle to use outside of working hours.
The first ground
of the respondent's argument will be dismissed forthwith as it was
clearly misguided. As already pointed out by the court, the
applicant's case is not that he was given the motor vehicle in terms
of his employment contract. In paragraph 4 of his application he
stated that after he was appointed Senior Manager, Risk he was
allocated the company motor vehicle for his personal use both on and
off duty. That was what he also told the court in his evidence.
So, both in his
pleadings and in his evidence before the court, his case was that he
was allocated the motor vehicle, not that it was given to him in
terms of his written contract of employment.
The second
ground of the respondent's argument was that it was most unlikely
that the authority to use the company motor vehicle for personal and
business errands could have been done without reducing it into
writing.
The respondent's
argument is not that Mr. Dixon had no authority to allow the
applicant to use the motor vehicle for both personal and official
duties. If that was the respondent's case, the matter would be
standing on a different footing before the court. The enquiry then
would have been whether or not Mr. Dixon had the authority. If not,
cadit questio. The application would be dismissed.
Presently, the
evidence by the applicant that the motor vehicle was allocated to him
to use on and off duty by Mr. Alan Dixon has not been rebutted. It
was clear to the court that the respondent was having an uphill
battle in trying to rebut that evidence especially because Mr. Dixon
and Mr. McNie are no longer working at the bank. There was no
evidence however, that it was impossible to have them called to come
and testify before the court and rebut the evidence of the applicant.
The court is
alive to the fact that the standard of proof in this court is not
proof beyond any reasonable doubt. The standard of proof is the
balance of probabilities.
The evidence in
this case showed that it was known both by the senior managers and
other staff members that the applicant was using the motor vehicle on
and off duty. Since the other senior managers were expatriates and
had special contracts entitling them personal motor vehicles, the
court finds that it was unlikely that they would have allowed their
local counterpart to also enjoy the same benefit, if it were not for
the fact that the Acting Managing Director had approved of it.
Secondly, there
was a policy that bank motor vehicles should remain within the bank
compound overnight. It is unbelievable that the bank could let the
applicant violate this policy for about four years. The only
reasonable explanation is that the applicant was not reported or
disciplined for violating that policy because it was known that he
had the authority to use the motor vehicle on and off duty.
Furthermore,
there was no evidence that the applicant was taking the motor vehicle
home overnight surreptitiously. If there was such evidence, the court
could easily infer that he knew that he had no authority to use the
motor vehicle off duty.
Thirdly, the
applicant was being taxed for using the motor vehicle. He was taxed
because it was regarded as a personal benefit. During the
cross-examination of the witnesses, it was being suggested to them
that the taxation was done by junior staff members, and therefore
could have made an error when they effected the tax on the applicant.
The evidence
however revealed that the management was aware of the applicant's
taxation. RW2 said that her office consulted with the Administration
Manager on the issue. RW1 said there was a general directive from the
income tax department, and the bank pinpointed the employees to be
taxed.
RW1 during
cross-examination said there was no instruction from senior
management to tax the applicant. That evidence by RW1 showed again
that she was not a credible witness. She was not working at the
respondent bank at that time. How could she have known what was going
on at the bank. When she was confronted with the letter in exhibit
"B" on page 32, she then agreed that senior management was
aware that the applicant was being taxed for using the motor vehicle
on and off duty. The letter on exhibit "B" page 32 was
written by the Senior Manager, Human Resources to the applicant and
the subject was "Tax on Benefit."
The evidence
clearly showed that the staff members and senior managers of the bank
knew that the applicant was using the motor vehicle on and off duty.
He was therefore taxed. None of the staff members or the senior
managers of the bank raised any query. The knowledge of this fact by
the employees means that the bank was aware of the factual position
(see CONNOCK'S MOTOR CO. v. SENTRAAL WESTELIKE KO-OP. (1964 (2) S.A.
47 (T)). The court will come to the conclusion that no query was
raised about the taxation of the applicant because it was known at
the bank that the applicant had been given the authority to use the
motor vehicle on and off duty, hence his name appeared on the list of
people to be taxed at the bank.
Fourthly, there
was the unchallenged evidence of the applicant that the issue of the
withdrawal of the motor vehicle was raised by Mr. John Whelan who was
a member of the IDI management team. The applicant said John Whelan
was being motivated by malice because the applicant was instrumental
in the sacking of the IDI management team.
The evidence
that the applicant was involved in the sacking of the IDI team was
further confirmed by RW3 during cross-examination.
If Mr. John
Whelan knew or thought that the applicant did not deserve the use of
the bank's motor vehicle off duty, why did he not raise the issue
immediately and have the motor vehicle withdrawn from the applicant?
Why did he wait until the eve of his departure?
From the
unchallenged evidence that Mr. John Whelan had a score to settle with
the applicant for being involved in the sacking of the IDI team, and
his conduct of raising the issue that the motor vehicle be withdrawn
on the eve of his departure from Swaziland, the court can only arrive
at one conclusion, that he was just being motivate by malice and
spirit of revenge.
The evidence
revealed that Mr. John Whelan was at the bank for about eighteen
months. It is strange that he did not raise the issue for all that
period, but only to raise it when he was leaving the country.
In the light of
the foregoing observations, the court will come to the conclusion
that the applicant has proved on a preponderance of probabilities
that he had the right to use the motor vehicle on and off duty
because he was authorized by Mr. Alan Dixon, who was at that time
Acting Managing Director of the respondent.
The applicant's
application must therefore succeed.
Relief: -
The court was
told that the applicant is no longer in the respondent's employ. The
applicant is therefore no longer pursuing prayers (a) and (b) of its
application. The applicant now only wants compensation for the
benefit that was withdrawn from him.
The court was
asked to base the calculations based on exhibit "B" page 6
or alternatively the monthly taxation on the benefit of E572:00. The
court will not use the figures appearing on exhibit "B"
page 6. Those figures are applicable only when the bank's executive
has purchased the motor vehicle using the car scheme. The applicant
did not acquire the motor vehicle by using the car scheme. It was the
bank's motor vehicle and had been allocated to him.
The court will
therefore have recourse to the amount of taxation. In terms of the
letter dated 14th January 1999, exhibit "B" 30,
the tax was set at E572:00 per month. That figure was however
recalculated and fixed at E223:08 per month by the letter dated 17th
February 1999, exhibit "B" 32. The court will therefore use
this figure ofE223:08.
The 300 litres
of fuel consumption per month was not challenged. The court will
therefore take the figure of El,086:00 per month for petrol as it
stands. The total benefits per month therefore is (El,086:00 +
E223:08) El,309:08.
The court was
told that the respondent has recently extended a motor vehicle
allowance to all managers and senior managers with effect form
01.09.2004.
The court will
therefore make an order that the respondent pays the applicant the
sum of El,309:08 per month with effect from April 2001 when the motor
vehicle was taken from him until August 2004.
No order for
costs.
The members are
in agreement.
N. NKONYANE
ACTING JUDGE-
INDUSTRIAL COURT
