IN
THE INDUSTRIAL COURT OF SWAZILAND HELD AT MBABANE
CASE
NO: 6/88
In
the matter between:
JANE
NTOMBI MAGONGO Applicant
VS
FRAZERS
(SWD) L.T.D. Respondent
CORAM
: Hassanali
President
Mr
D Lukhele for
Applicant
Mr
P Flynn for
Respondent
Messrs
Mokgokong And Matsebula Assessors
AWARD
Delivered on the 23/3/89
Hassanali,
P
In
this Application the applicant is claiming from the Respondent
Company the following sums of monies for unfair termination -
a)
Additional
Notice pay E3
507.68
b)
Wages
for 3 days 119.58
c)
Severance
Allowance 8
769.20
d)
13th
Cheque. December 1987 Bonus 950.00
e)
Overtime
1
704.61
f)
Stock
taking overtime 6
288.32
E21
339.3
The
Respondent replied that the Applicant's termination was fair because
-
1)
the
Applicant was involved in the running of a super market in Siteki
while employed as the Manageress
of the Respondent's super market, and that this constituted a
conflict of interests.
This was contrary to Respondents' business regulation and also
amounted to a serious
breach of the loyalty owed by the
2
applicant
to the Respondent.
(2)
Orders
for Applicant's store in Siteki were being placed through
Respondent's' suppliers and these
were being delivered and received at Respondents Store in Simunye.
Respondent regarded
the movement of goods in and out of its Store as a serious misconduct
and breach of
Respondent's* security regulations.
At
the onset of the trial, Mr Flynn appearing for the Respondent Company
withdrew his objections raised in limine after Mr Lukhele filed his
amended application.
Mr
Lukhele withdrew his claim for E 3 507.68 since it was discovered
that this amount had already been paid to the Applicant by the
Respondent.
Mr
Lukhele also abandoned his claim on the 13th cheque amounting to
E950.00.
The
Respondent Company is a well known business establishment in
Swaziland with branches in many parts of the country. The Applicant
was recruited to this Company in early 1964 as a saleslady and in
1983 through sheer hard work rose to the position of Manageress of
their branch in Simunye.
On
3/9/87 the Applicant was suspended from work on suspicion that she
was running a business at Siteki. On 26/10/87 after a disciplinary
inquiry (Ex. 'K') she was dismissed from Service (Ex. 'B')
The
applicant in her evidence questioned the correctness of the contents
of the Minutes (Ex.'K') more especially to the following, "Mrs
Magongo further explained that the goods for the Store in Siteki were
delivered at Fairways because she did not wish to cause suspicion by
having the goods delivered at home." Since Ex. 'K' was an
uncertified copy of the Minutes, it was
3
the
duty of the Respondent to produce the Minutes Book for the perusal of
the Court in view of the Applicant's denial to some of the contents
therein. In the circumstances I do not wish to place any degree of
reliance on this copy (Ex.'K').
On
the question of the disciplinary inquiry, I note that this Inquiry
was conducted without'first having given the Applicant the
opportunity of preparing her case, and therefore I find that the
principles of natural justice have not been complied with. I may
mention that an employee's services should not be terminated without
first charge sheeting her and giving her the opportunity of showing
cause against the action contemplated against her.
I
shall now deal with the salient facts in this case. On 3/11/87 the
Respondent Company dismissed the Applicant on the ground that she was
running a supermarket at Siteki. This the Applicant denied, both at
the Disciplinary Inquiry and at the trial. It however transpired in
evidence that none of the Respondent's witnesses had seen the
applicant at any time in the said supermarket. Nonetheless the
Respondent led evidence to establish the applicant's involvement in
the said Supermarket through the following -
(i)
A
writing (Ex.'F') by which the Applicant became the lessee of the
premises where the said business
was carried on.
(ii)
A
letter addressed by the Accountant-General to the Applicant (Ex.'I')
(iii)
Invoices
which related to purchases made by the Applicant (Exs. 'G', 'H')
4
(v)
The
evidence of Mr Thusi an employee of the Respondent Company to the
effect that the Applicant
placed orders for goods on many occasions.
The
case for the Respondent Company depends largely on the documentary
and oral evidence of the witness Thusi. The Respondent maintained
that the writing Ex.'F' positively proved that the Applicant was the
owner of the Supermarket. The applicant on the other hand agreed that
the agreement was written in her favour but denied that she had
anything to do with the business. She maintained that the shop
belonged to her aunt Rebecca Shongwe who in her evidence strongly
supported the applicant on this. She further said that the agreement
was written in the applicant's favour as she had advanced her the
money to operate the business. Rebecca made a good impression on me
as a witness. At the end of her cross examination, her evidence
remained totally unshaken and I find her to be a plausible witness.
Therefore I accept the evidence of the applicant and Rebecca and hold
that though the agreement was in favour of the applicant, the
business was run by Rebecca.
As
regards Ex. 'I' the Respondent took up the position that this letter
written to the Applicant by the Accountant General was clear proof
that she was the owner of the business at Siteki. The applicant
however denied it and said that she could not understand as to why
this letter was sent to her, Care of Egugu Grocery. Though this
letter might suggest that the Applicant was the owner of Egugu
Grocery, it is insufficient evidence to establish conclusively that
such was the case. In my view the Respondent should have called one
of the Revenue Inspectors who visited this shop, to give evidence as
to how he concluded that the applicant was the owner. Therefore I do
not
5
wish
to place any credence on Ex. 'I'
The
Respondent produced the Hawkers Licence (Ex.'N') issued to the
Applicant but this appears to have been issued prior to the
commencement of the said business. As such this licence has no
relevance to the business in question.
On
the question of the invoices Exs. G, H, the Respondent tried to
establish that the items listed in them were ordered by the Applicant
through the Company supplies, for her shop at Siteki. The Applicant
admitted to ordering them but denied that they were bought for the
shop. She said that they were purchased for her own personal use and
for the use of some of the employees in the Respondents' shop since
the prices were cheaper than those sold in the shops in town. The
purchases were not large and therefore it is reasonably possible that
these items could have been purchased for herself and for the other
employees since no evidence had been led to contradict it.
Robert
Thusi a witness for the Respondent stated in his evidence that he was
an employee of the Respondent Company. At the request of the
Applicant he placed some orders on her behalf with the Company
suppliers, and she personally took delivery and paid for them. He
further stated that on one occasion when he placed an order on her
behalf with the Representative for Mlangeni Foods, he refused to
accept the order until the Trade Licence was produced. Thusi conveyed
the message to the Applicant who then met the Representative. The
Applicant however denied that she placed orders through Thusie and
said that whatever Orders she placed, she did them personally. The
Respondent did not produce any invoices in
6
respect
of these Orders nor were any witness called, especially the suppliers
representatives, to substantiate the truth of Thusi's evidence. Had
this been done it would have helped the Court immensely to arrive at
a just decision in view of the fact that they would have been
independent witnesses.
Another
point for determination is whether this applicant has been breached
the Company's security regulations. Mr Drake the Human Resources
Manager of the Company maintained that the applicant had breached the
Company's Regulation in that she kept the goods she purchased, in the
Company's Store. This could be true but Mr Thusi their witness, had
stated that sometimes when some of their other employees purchased
goods from outside, they were kept in the Stores until taken in the
evening. Therefore it appears to me that these Regulations were not
being strictly enforced. In the circumstances it would be unfair and
unjust to accuse her of this breach.
On
the whole the evidence of the Applicant was satisfactory. She was
subject to severe cross examination by Mr Flynn and I must say that
her evidence remained unshaken.
Mr
Flynn argued that if the evidence is taken in its entirety, it tends
to reflect that the applicant was the owner of the Egugu Grocery.
Though some suspicion could be attached to her regarding her
involvement in the said business, this I must say unhesitatingly is
insufficient to come to the above conclusion. Therefore after very
careful consideration of the evidence, I have come to the conclusion
that the Applicant was not the owner of the Supermarket Egugu Grocery
at Siteki and consequently I hold that the termination of the
applicant is not justified.
7
On
the question of Relief, the Applicant is claiming the following -
Wages
for 3 days 119.58
Severance
Allowance 8
769.20
Overtime
7
992.93
The
Applicant is claiming from the Company 3 days wages viz 1/11, 2/11
and 3/11 amounting to E119.58. Mr Flynn argued that the payment of
one months salary to the applicant in lieu of notice included these 3
days. I am not in agreement with Mr Flynn on this. Since her
suspension ended on 3/11 on her. dismissal, one month's salary in
lieu of notice should have been from 4/11/87 and not from 1/11.
Therefore I am of the opinion that the applicant is entitled to the 3
days wages of E119.58
On
the question of severance allowance there is no dispute as regards to
the computation of this amount. I allow the application for the
payment of severance allowance.
As
regards overtime payment the applicant is claiming a sum of E7 992.93
from the Respondent Company. The Respondent denied liability to pay
this amount on the ground that she belonged to the senior staff of
the Company who were given enhanced salaries instead of overtime.
Perusing Exs 'D' & 'E' I noticed that her claim runs as far back
as 1983 and I cannot understand as to why she waited so long to make
this claim. I have some doubts as regards this claim and I accept the
Respondent's version that Staff Officers are not entitled to overtime
payment. In the circumstances I reject this claim.
On
the question of compensation I find that the Applicant has not
claimed it in her application nor in her evidence.
8
Therefore
I have to decide whether I could grant her compensation for her
unfair termination ex mero motu
Section
13 reads as follows -
"(1)
If
the Court, in settling any dispute or grievance, finds that an
employee has been dismissed or
disciplined contrary to a collective agreement or to any law relating
to employment, the Court
shall make an order granting such remedy as it may deem just.
(2)
Without
restricting the generality of subsection(1) the Court, in settling a
dispute or grievance under
this section may -
(a)
order
the employer to pay compensation to the employee or
(b)
recommend
the re-instatement of the employee in substitution for, or in
addition to, any compensation
it may order under paragraph (a)."
Reading
the above I am of the view that the Court could order compensation ex
mero Motu when it finds that a person has been unfairly terminated.
Therefore
taking her long service with the Company and the circumstances under
which she came to be terminated, I am of the view that an order for
Maximum Confirmation would be just and equitable.
Consequently
I order the Respondent Company to pay the Applicant the following -
3
Days Salary 119.58
Severance
allowance 8
769.20
Compensation
6 months 5
700.00
£14
588.78
My
Assessors agree with my decision,
J
.A. HASSANALI ,
PRESIDENT
