JUDGEMENT
-
7/2/2007
1.
The
application papers were served on the Respondent's Personnel Officer
Daniel Matsebula on the 20th
September
2006, but the Respondent failed to appear before the court on the
nominated date to oppose the matter.
2.
The court is satisfied, on the basis of an affidavit of service and
confirmation thereof by Attorney Madzinane from the bar, that proper
service was effected on the Respondent and that the matter can
properly be determined ex parte in the absence of the Respondent.
3.
The Applicant alleges that he was unfairly dismissed by the
Respondent, and he is claiming compensation for unfair dismissal,
notice pay, additional notice pay, and severance allowance.
4.
The following facts emerge from the unchallenged testimony of the
Applicant:
4.1.
The Applicant was employed by the Respondent in November 2002 as a
cutter. He is an employee to whom Section 35 of the Employment Act
1980 applies.
4.2.
His services were summarily terminated on 14th
September
2005 on the grounds that he had insulted his line manager, a Mr.
Wang, by calling him "silima", which is siSwati for a
fool; and secondly that he failed to take instructions.
4.3.
Prior to his dismissal, the Applicant attended a disciplinary
hearing. The minutes of the hearing were produced in court as an
exhibit.
The
applicant was charged with insulting his line manager and
threatening violence. He pleaded not guilty.
4.4.
The line manager Mr. Wang alleged that Applicant had called him a
fool in front of two witnesses. The Applicant categorically denied
the allegation. The two witnesses were called to the hearing. They
both denied hearing the Applicant say anything to Mr. Wang. On the
contrary, they corroborated the Applicant that Mr. Wang was shouting
at him. A supervisor called Elvis also told the hearing that there
was no proof that the Applicant had insulted Mr. Wang.
4.5.
The
witnesses whom Wang claimed would confirm his version did not do so.
If anything, they confirmed that Wang behaved disrespectfully
towards the Applicant. Faced with this evidence, the chairman of the
hearing - one Bhekumuzi Zeeman - should have dismissed the charges.
Instead, he made the following recommendation:
"The
disciplinary panel finds it difficult to make a decision because of
witnesses who did not give them a clear picture about what
transpired in the case. Therefore our superior can make a decision
in this case."
4.6.
Underneath this recommendation a bold hand has written the
instruction "DISMISS
HIM!"
4.7.
Presumably in accordance with this instruction, the Assistant M. D.
Joe Lo wrote to the Applicant on 13th
September
2005 terminating his services. The reasons for the termination are
given in the letter as:
"
you insulted your line manager. Failure to take
instructions
from your superiors."
4.8.
The
Applicant appealed against his dismissal, but no appeal hearing was
ever convened.
4.9.
In court the Applicant repeated his denial that he insulted Mr.
Wang. He stated that Wang shouted at him when he explained that he
was waiting for a marker. He said Wang could not understand Siswati.
4.10.
At the time of his dismissal, the Applicant was a shop steward of
the union active at the Respondent's workplace. He was earning
E508.00 per fortnight. He is 30 years of age with dependants. He has
been unable to obtain alternative employment.
5.
In the court's view, the manner of dismissal of the Applicant
indicates that the Respondent's senior management have no
appreciation of fair labour practice. The chairman of a disciplinary
hearing cannot abrogate his duty to make a finding on the evidence
to a superior who has not attended the hearing. A
fortiori where
the evidence at the hearing falls short of proving the charges.
6.
Joe Lo dismissed the Applicant for failure to follow instructions,
but he was never charged with this offence.
7.
An employee has a right of appeal against his dismissal,
particularly where the decision to dismiss appears to be arbitrary
and unsupported by the record of the disciplinary hearing. The
failure to convene an appeal hearing for the Applicant was
procedurally unfair.
that
the Respondent's management discriminated against the Applicant due
to his status as a shop steward.
13.
The court is satisfied that this is a case where maximum
compensation should be awarded. The court awards the Applicant
compensation in the sum of E12, 192.00.
14.
Judgement is entered against the Respondent for payment to the
Applicant of the sum of E14,012-64. The Respondent is ordered to pay
the Applicant's costs.
The
members agree.
P. R. DUNSEITH
PRESIDENT OF THE
INDUSTRIAL COURT
