JUDGEMENT
-7/12/2007
1.
The
Applicant applied to the Industrial Court claiming payment of
compensation for unfair dismissal, notice pay and leave pay. At the
end of his evidence in chief, this claim was amended without
opposition by the Respondent to include claims for additional
notice, severance allowance, and reinstatement as an alternative to
compensation for unfair dismissal.
2.
It is common cause that the Applicant was employed by the Swaziland
Government as a fireman in the Department of Fire & Emergency
Services based at Siteki Fire Station, with effect from 4th
February
1993.
3.
It is also common cause that the Applicant absented himself from
work for eight (8) consecutive shifts over the period 31st
August
1996 to 27th
September
1996 without permission.
4.
According to the Applicant, he fell ill shortly before 31st
August
1996 with dizziness and hallucinations. His co-workers conveyed him
to the Good Shepherd Hospital where he was admitted over night. The
following day the hospital discharged him, but after a day he
suffered a relapse. His neighbours took him to see a traditional
healer, since his illness was not a conventional medical condition.
He asked the mother of his children to report to his duty station
that he was sick and under treatment by a traditional healer at
Ludzeludze. The mother of his children has since died, and there is
no evidence before the court that she did make this report.
5.
The Applicant testified that on the morning of the 30th
September
1996 he reported for work. He worked until the late afternoon, when
he was called by his supervisor Philemon Dlamini, who was the
Station officer in charge of Siteki Fire Station. He found the
Station Officer in his office with two Leading Fireman, Zacheus
Dlamini and Musa Dlamini. Both these Leading Fireman are since
deceased.
6.
The Station officer demanded a medical certificate to confirm that
the Applicant had been ill. The Applicant explained that he had no
medical certificate since he had been treated by a traditional
doctor. The Station officer showed the Applicant a letter written by
the Divisional Officer, Mpendulo Fakudze. The letter recommended
that the Applicant be dismissed because he had absconded from work.
The Station Officer then informed the Applicant that he was
dismissed. He refused to give the Applicant a copy of the letter
recommending his dismissal.
7.
The Applicant says that he wished to have some written record that
he had been dismissed. He asked Zacheus Dlamini for permission to
record that he had been dismissed in the Station's Daily Occurrence
Book. Zacheus agreed, and he wrote in the Occurrence Book that he
had been dismissed by Philemon Dlamini. He then left his work
station and never returned.
8.
In 1997 he reported a dispute to the Labour Commissioner. The
dispute was referred to conciliation, but the management of the Fire
and Emergency refused to reinstate him. A certificate of unresolved
dispute was issued, and the Applicant instituted proceedings in the
Industrial Court.
9.
The Respondent disagrees with the above version of the Applicant in
a few important respects:
9.1.
Philemon Dlamini testified that during the Applicant's absence from
30th
August
to 27th
September
1996, no word of his whereabout or explanation for his absence was
received from anyone, and it was assumed that he had deserted his
employment.
9.2.
When the Applicant reported for work on 30 September 1996 and
claimed to have been under treatment by a traditional healer,
Philemon Dlamini says he offered to drive with the Applicant to the
home of the traditional healer but the Applicant did not accept this
offer. Philemon then showed the Applicant the letter from the
Divisional Officer recommending his dismissal, and advised him to go
and get a sick sheet from a medical practitioner.
9.3.
Philemon Dlamini insists that he did not dismiss the Applicant. He
says that he had no authority to dismiss the Applicant in terms of
Government General Orders and the Civil Service Board Regulations
and he could not have done so.
9.4
Philemon
Dlamini says the Applicant did not return to work after being sent
to get a sick sheet. He later went to the Applicant's house to look
for him but he was not there. Disciplinary proceedings could not be
instituted against the Applicant because he had disappeared.
10.
The material disputes of fact which arise from the different
versions of the parties may be summarized as follows:
10.1.
Whether the Applicant was ill and under treatment by a traditional
healer throughout the month of September 1996 when he was absent
from work for eight consecutive shifts.
10.2.
Whether the Station Officer Philemon Dlamini dismissed the Applicant
on 30th
September
1996, or merely sent him to fetch a sick sheet to verify his absence
due to ill-health and the Applicant thereafter deserted his
employment.
11.
The Applicant gave a consistent account of his illness, providing
the name and location of the traditional healer. There are no
inherent improbabilities in this account. The Respondent did not
provide any evidence which suggests that the Applicant was not under
treatment by a traditional healer at the relevant time, and the
court accepts the Applicant's factual version that the reason for
his absence from work for eight consecutive shifts was because he
was undergoing treatment by a traditional healer.
12.
This does not mean that the Applicant's reason for his absence
constitutes an acceptable excuse. Section 36 (f) of the Employment
Act 1980 provides that it shall be fair for an employer to terminate
the services of an employee where the employee absents himself from
work for more than three working days in any period of thirty days
without either the permission of the employer or a certificate
signed by a medical practitioner certifying that he was unfit for
work on these occasions. "Medical Practitioner" refers to
a medical practitioner who is registered to practice by the
Swaziland Medical and Dental Council in terms of the Medical &
Dental Practitioners Act, 1970.
13.
An employer is not obliged in law to accept an allegation of ill
health as sufficient excuse for absenteeism unless the employee
provides a medical certificate certifying him as unfit for work. The
Applicant never provided a medical certificate, and the Respondent
was entitled to regard him as absent without lawful excuse. In other
words, the Respondent had fair reason to dismiss the Applicant in
terms of Section 36 (f) of the Act, and was entitled to institute
disciplinary proceedings against him with a view to his dismissal
from the Civil Service.
14.
The
Applicant alleges that he was summarily dismissed by the
Station
officer without proper disciplinary procedures being
followed. The Applicant testified that the verbal dismissal was
recorded contemporaneously in the Daily Occurrence Book. The
Occurrence Book was produced in court. At 1655 hours on 30 September
1996 the following entry was recorded in the book:
"UFM
ZF Dlamini reported FM AB Maseko off duty due to instruction from
Station Officer PM Dlamini that he had been sacked or dismissed from
work."
15.
The duty officer who made this entry, one Wesley Maseko, is since
deceased. The entry is a record of what was reported to Wesley
Maseko by Leading Fireman Zacheus Dlamini as the reason for the
Applicant leaving the station. The Respondent's witness Philemon
Dlamini confirmed that Zacheus Dlamini was present during his
discussion with the Applicant on 30th
September
1996 and that Zacheous was instructed to cause the reason for
Applicant leaving the station to be recorded in the Occurrence Book.
The entry in the book thusprovides substantial corroboration of the
Applicant's allegation that he was dismissed from work by the
Station Officer Philemon Dlamini in the presence of Zacheus Dlamini.
16.
The Respondent's counsel argues that the entry in the Occurrence
Book is false. Either Zacheus Dlamini caused a fabricated entry to
be made, or the duty officer made a false entry. This is highly
improbable. There was no reason at the time why any of these
officers, including the Applicant, would want to make a false record
that the Applicant had been dismissed. It is also highly unlikely
that disciplined officers in the Fire & Emergency Service would
fabricate an entry in the Occurrence Book, in the absence of any
personal advantage and with the strong likelihood of discovery.
17.
The court also regards the Station Officer's evidence that he does
not check the entries in the Daily Occurrence Book with a great deal
of skepticism. It is part of the Station Officer's duty to keep
abreast of occurrences at his station and this requires him to
scrutinize the Daily Occurrence Book and verify the entries made. In
our view if the entry in the Occurrence Book was fraudulent, the
Station Officer would have discovered this and corrected it.
18.
There is further corroboration of the Applicant's version. It is
recorded in the certificate of unresolved dispute that whilst the
matter was under conciliation before the Labour Commissioner, "the
Respondent Department submits that the Applicant was dismissed
fairly for absconding from work for a month without a doctor's
report for his absence."
19.
Philemon Dlamini confirms that he was present at the conciliation
meeting. He denies that he submitted the Applicant had been fairly
dismissed, but this is what was recorded at the time by the
conciliating officer. The contents of the certificate have never
been challenged by the Respondent.
20.
The Respondent has not adduced any evidence to corroborate the
version of Philemon Dlamini. His version is also inherently
improbable. Why would he have sent the Applicant to obtain a medical
certificate knowing full well that the Applicant had been treated by
a traditional healer, not a medical practitioner? Furthermore, the
entry in the Occurrence Book reflects that the Applicant was signed
out at 1655 hours. This was in the middle of his 24 hour shift. It
is improbable, indeed unbelievable, that the Station Officer would
have sent the Applicant off duty at 5 p.m. in the middle of his
shift to obtain a sick sheet. He must have known that hospitals and
medical practitioners do not attend to such administrative issues
after 5 p.m. Why then release the Applicant in the middle of his
shift?
21.
Weighing the probabilities, and considering the significant
corroboration provided to the Applicant's version by the Occurrence
Book entry and the certificate of unresolved dispute, the court is
driven to the finding that the Station Officer did as a matter of
fact purport to terminate the services of the Applicant after
showing him the Divisional Officer's letter recommending his
dismissal.
22.
Where the Swaziland Government is the employer, the termination of
the services of a public officer must comply strictly with the laid
down statutory procedures, failing which the termination is a
nullity.
Schierhout
v The Minister of Justice 1926 AD 99;
Njenje
v Swaziland Government 1963-1969 SLR 221.
23.
It
is common cause, and specifically conceded by the
Respondent's
counsel, that Philemon Dlamini had no authority to
dismiss the Applicant and that none of the formal disciplinary
procedures prescribed by Regulations 42-44 of the Civil Service
Board (General) Regulations were observed. The purported dismissal
of the Applicant was in the circumstances an invalid and unlawful
repudiation of the
Applicant's contract of employment.
24.
Notwithstanding that the Respondent has fair and lawful grounds
which justified terminating the Applicant's services in terms of
section 36 (f) of the Employment Act 1980, the unlawful and ultra
vires manner in which the termination was carried out renders the
dismissal substantively and procedurally unfair.
25.
The Applicant introduced an alternative claim for reinstatement
during the trial. This is not an appropriate case in which
reinstatement can be granted. Not only have eleven years elapsed
since his dismissal, but in the interim he has been re-employed by
the Swaziland Government and again dismissed for absenteeism.
26.
In assessing what amount, if any, should be paid to the Applicant as
compensation for his unfair dismissal, the court will give due
weight to the following factors:
26.1.
The Applicant's personal circumstances.
26.2.
The inconvenience, hardship and sense of injustice the Applicant
must have experienced as a result of the summary and premature
termination of his services;
26.3.
The proved fact that the Applicant absented himself from work for
eight consecutive shifts without permission or lawful excuse;
26.4.
The unacceptability of indiscipline and absenteeism in an emergency
service.
27.
After
careful consideration, the court awards the Applicant three (3)
months salary in the sum of E4135-11.
28.
With regard to the claim for severance allowance, section 34 (1) of
the Employment Act 1980 provides that such allowance is only payable
if the services of an employee are terminated other than under the
provisions of section 36 (a) - (j). Having found that the Respondent
had fair reason to terminate under section 36 (f), no severance
allowance is payable.
29.
The Applicant is entitled to be paid notice and additional notice
pay amounting to a total of E1880. He led no evidence to show that
any leave was due to him when his services were terminated, and his
claim for leave pay must fail.
30.
Judgement is entered against the Respondent for payment as follows:
Notice
and additional Notice E1880-00
Compensation
E4135-11
Total
E6015-11
The
Respondent is to pay the Applicant's costs.
The
members agree.
PETER R. DUNSEITH
PRESIDENT OF THE
INDUSTRIAL COURT
