IN
THE INDUSTRIAL COURT OF SWAZILAND
CASE
NO.
17/85
In
the matter between:
THOMAS
DLAMINI APPLICANT
VS.
NATIONAL
INDUSTRIAL DEVELOPMENT
CORPORATION
OF SWAZILAND TINKHABI
TRACTOR
PROJECT RESPONDENT
CORAM
PRESIDENT: J.
A. HASSAMALI
FOR
APPLICANT: MR. S. MOTSA
FDR
RESPONDENT: M.R J. OSCRAFT
ASSESSORS: MESSRS B.
STEPHENS AND A. N. MATSEBULA
ISSUE
IN DESPUTE UNFAIR DISMISSAL
AWARD
(Delivered
on )
HASSANALI,
PRESIDENT
In
this case the applicant is claiming re-in9tatement or in the
alternative, compensation for his unfair dismissal together with his
terminal benefits.
Tinkhabi
Tractors was a project of National Industrial Development Corporation
of Swaziland whose principal activity was the manufacture of small
sized tractors. Besides this, it also welded and fabricated all types
of agricultural equipments.
2
The
applicant was first employed by the Project as a labourer and
thereafter became an assistant welder. Later he was sent to Swaziland
College of Technology for further training and an his return was
appointed a welder in 1979. In 1982 he became a Supervisor of the
welding section. He was a member of the Worker's Committee and during
the middle of 1983, became its Chairman. This appointment resulted in
rift between himself and Mr. Cattrick, the Project Manager, as Mr.
Catterick felt that he was getting too involved in the workers
activities, thus jeopardising the cordial relationship that existed
between himself and his employees.
The
applicant was subsequently relieved of his posts as Supervisor and
reverted to his original position as a welder, on the grounds that
his supervision of labour and his work per- formance had considerably
deteriorated. After this he received a number of warning letters in
quick succession. The first of these was on 4/10/83 (Ex. A) and then
on 6/10/83 his employment was terminated. (Ex .8). But he was
re-instated as a result of the intervention of the Labour Department,
when it was discovered that the work referred to in Ex. A for which
his
services
were
terminated was in fact done by another employee, one Themba Dlamini.
Again on 1/2/84, the applicant received another letter (Ex.
E)
but there again it was found that he was not responsible for the work
complained of, and consequently the
warning
was withdrawn. However Mr. Nkambuls the Supervisor, admitted that
there was some fall off in the applicant's work performance but he
said that these did not warrant strictures or warnings as they were
not of a serious nature.
3
It
Seems to me that the applicant's services were terminated under
Sec.36 of the Employment Act No.5 of 1980 which reads as follows-
"It
shall be fair for an employer to terminate the services of an
employee for any of the following reasons (portions that are not
relevant to this matter have been omitted)
a) because
the conduct or work performance of the employee has after written
warning, been such, that the employer cannot reasonably be expected
to continue to empliy him.
There
is no doubt that there had been some deterioration in in the
applicant's work performance and this has been reasonably confirmed
by Mr. Nkambule and Mr. Catterick. But the evidence does not disclose
that he lacked the ability or capacity to perform his tasks.
Incompetence which results from carelessness is not necessarily gross
to merit a dismissal. Therefore I hold that the applicant did not
show sufficient interest in his work after his Election as Chairman.
Although
it did not come out very clearly in evidence, it seems to me that the
main reason for the applicant's termination was his active
involvement in the workers Committee; thus placing the employees
interest above the employers. Termination under such circumstances is
not just, nor does it res tors harmony between labour and capital or
ensure normal flow of production. It would after all, be more fitting
in modern society, to recognise positively the roll and place of
Workers Committee/ Trade Union, to welcome it and to strengthen it,
and allow it
to
flourish, rather than to stifle it. This would no doubt create a
friendly atmosphere for a sound employer/employee relationship.
4
Since
I have some doubts as regards the reason for his termination, I wish
to give him the benefit of that doubt and hold that he was unfairly
dismissed because of his Union activities.
However
taking into consideration the fall of
in
Applicant's performance. I do not wish to award him any compensation,
nor terminal benefits other than the severance allowance.
Consequently
I order the Respondent to pay the applicant his severance allownce of
E1,010 only.
My
Assessors agree with my award.
J.
A.
HASSANALI
PRESIDENT
