IN
THE INDUSTRIAL COURT OF SWAZILAND
CASE
NO; 5/88
In
the matter between:
JAMES
J. MAGONGO Applicant
VS.
FRASERS
(SWAZILAND) LTD Respondent
CORAM:
HASSANALI J.A. President
MR
D. LUKHELE for
Applicant
MR
P. FLYN for
Respondent
MESSRS
MOKGOKONG & MATSEBULA Assessors
AWARD
(Delivered
on 6 - 4 - 1989)
HASSANALI,
P
This
Application springs from the dismissal of the Applicant by the
Respondent Company on the ground of gross negligence. The Applicant
has stated that he was unfairly dismissed but not as a result of
gross negligence and proceeds to claim the following from the
Company -
Salary
for 3 days (Nove. 1987 270.00
Severance
allowance 19 800.00
13th
Cheque bonus 1 950.00
Overtime
6 515.04
Compensation
11 700.00
40
235.00
At
the outset of the trial, Mr Flyn appearing for the Respondent Company
withdrew his preliminary objection after Mr Lukhele, Counsel for the
Applicant filed his amended application.
Mr
Flyn submitted that he was restricting his case to one issue only
namely miscalculation of Sales Tax.
At
the end of the Applicant's case, it was noticed that the Appplicant
had failed to give evidence relating to his claims and Mr Lukhele
applied to recall the applicant. Mr Flyn resisted the application but
xxter listening to both Counsel, I allowed the application on the
ground XXXX it would not in any way cause prejudice to the Respondent
nor would it XXXXX in a miscarriage of justice since the Respondent
was all along aware xxxx Applicant's claims.
2
Mr
Lukhele abandoned the claim for E1 950/= the 13th cheque bonus.
Frasers
Swaziland Ltd, the Respondent Company is a well known retailer of
Merchandise in Swaziland with branches in various parts of the
country. The Applicant who was an employee of the company was
suspended from work on 3/9/87 for the following reasons, pending a
Disciplinary Inquiry against him -
1)
failure to notify of his wife's conflict of interest
2)
Miscalculation of Sales Tax
3)
Hold vouchers discrepancies (mishandling of Company money)
4)
Incorrect payment of stock take bonus.
He
was dismissed on 3/11/87 after a Disciplinary Inquiry.
The
Applicant in the course of his evidence denied to some of the
contents in Ex.A (Minutes of the meeting held in Swaziland on 26th
October 1987) which was an unsigned copy of the minutes of the
Inquiry. In view of the Applicant's denial, I submit that the Company
ought to have produced the Minutes Book which Mr Drake a witness for
the Respondent said, was available at the office. Its failure to do
so, has cast some doubts in my mind as to the genuiness of the
document (Ex.A) and I therefore do not wish to place much credence on
it.
Though
the Respondent Company conducted an Inquiry against the applicant, I
am afraid that it was not done in a manner to conform to the
principles of natural justice. The applicant was neither served
before hand a copy of the charges preferred against him, nor was nor
was he given an opportunity to prepare for for the Inquiry. Instead
he was straightaway
3
summoned
to the office where the Inquiry was held.
Before
I proceed to set out the facts in this matter, I wish to briefly
outline the procedure followed by the Company in relation to the
preparation of Sales Tax Returns. The procedure being as follows -
Each
Branch of the Company forwards its details relating to Sales Tax
to the Company's Head Quarters at Tshaneni. There the Clerk-in-Charge
of the Sales Tax prepares a Return Correlating the figures with the
invoices. Then it is submi-tted to the Group Accountant with the
invoices. After satisfying himself to its correctness the
Accountant forwards a cheque for the amount reflected in the Return
to the Swaziland Government.
According
to the applicant he was recruited by the Respondent Company on 1/3/64
as a field accountant to do the stock audits of its Branches. He rose
in the service of the Company after having gone through the
vicissitudes of business intricacies and eventually ended his long
carreer as Manager, Personnel and Training, from which position he
was dismissed on 3/11/87, after nearly 24 years of service. At the
time of his dismissal he was drawing a salary of E1950/= per month.
The
Respondent Company denied that the Applicant was the Manager,
Personnel & Training and maintained that he was the Company's
Group Accountant. However the Respondent did not endeavour to produce
any documentary evidence in support of this claim, but decided to
rely on the oral evidence of one Mr Khumalo. According to him he
succeeded the applicant as Group Accountant and took over from him
the cash float.
4
Unfortunately
there is no evidence as to who maintained the accounts books and as
to what happened to them. There is no evidence that it was the
applicant who maintained the books or that he handed them over to Mr
Khumalo. The applicant nonetheless tendered a letter dated 15/5/87
which purports to appoint him as the Company's Manager, Personnel &
Training (Ex. E). This letter of appointment had not been cancelled
nor was his appointment revoked. He nevertheless admitted that whilst
he held this substantive post, he helped out the Company with some of
its accounts more especially those relating to Sales Tax Returns.
This was after the resignation of the Group Accountant, Mr Littler.
This is possible as Mr. Khumalo took over from the applicant only the
cash float. Therefore in view of Ex. E and the evidence of the
applicant, I think it is safe to assume that the applicant during the
relevant period while holding the appointment of Manager, Personnel &
Training helped the Company out with some of its accounts, especially
relating to Sales Tax Returns. I find it hard to believe that a well
known Company like Frazers would have entrusted its accounts to an
unqualified and untrained person like the applicant.
Coming
to the main issue in this case namely miscalcu-lation of Sales Tax, I
quote below Paragraph 4.1 of the Respondent's answer -
"The
applicant has made serious miscalculations of the Respondent's Sales
Tax Returns and in
this regard an internal investigation by Respondent showed that an
amount approximately E.107424.86
Sales Tax was due as a result of these miscalculation. It is
submitted that this negligence
on the part of Applicant has resulted inter alia in the following
detrimental
5
consequences
to Respondent
(a)
the Respondent is liable for interest and heavy penalities as a
result of the failure to pay the said Sales Tax.
(b)
The Applicant's action has brought the Company's good name and
standing with the authorities into disrepute and in this reagrd the
Respondent has been denied certain rail privileges which it had
previously enjoyed."
From
the above there seems to have been an internal investigation into the
miscalculations of Sales Tax, presumably sometime before the
suspension of applicant from duty, but sadly the Respondent did not
think fit to place before Court as to when the investigation was held
and whether the applicant was given an opportunity to submit his
explanation on the Report. Therefore I assume that the Management had
the Report on the investigation at least some time prior to the
Applicant's suspension, but what I fail to understand is as to why
the Respondent waited so long to suspend him.
Was
his suspension connected in anyway with his wife's suspension? In
this connection I wish to refer to Ex. A, Page 2 paragraph 3
re-Enquiry of Mr James Magongo, line 8 -
"Management
explained to Mr Magongo that he had on several occasions attempted to
get management to investigate certain members of staff who he
believed were involved in business of their own. As a result, he knew
very well what the consequences of such a breach were, yet he allowed
his wife Mrs Jane Magongo to obtain a licence and trade at Siteki.
6
Mr
Magongo told the meeting that he knew nothing of his wife's
involvement in the Siteki Store as she never told him and he is not
involved."
From
the above it seems to me that the Applicant's dismissal to some
extent was connected with his wife's alleged involvement in a store
at Siteki.
I
shall now deal with the main issue namely the miscalculations of
Sales Tax which led to the termination of the applicant's services,
through the evidence of Mr Londlo Dlamini, a witness for the
Respondent Company.
Londlo
in his evidence stated that he was employed by the Respondent as a
Sales Tax Clerk. His main duty was to prepare the monthly Sales Tax
Return and submit it to the Applicant for his. scrutiny.
The
applicant then fowareded a cheque for the amount reflected in the
Return to the Swaziland Government. He further stated that Exs. H1
and H2 were prepared by the Receiving Clerk while H3, a summary of
statement for January, 1987 by him. The Applicant had all these
documents when he drew up the cheque for E5353.70 on H4. However he
(Londlo) admitted that he erroneously entered in H3 against Tshaneni
in column 3 E18266.42 and in column 4 E2504.20 instead of E182 , 644
.37 and E18944 .02 respectively. As a result of this error the
Company underpaid the Government in the sum of E.16439.82. He
realised his mistake only after the cheque had been posted. He also
said that the underpayments due to his miscalculation continued for
many months, Unfortunately the applicant was not cross examined on
H1, H2 and H3 and therefore I have some doubts as to whether Exs. H1
and H2 were ever produced to him when he made out the cheque. It is
also
7
unfortunate
that the Company did not lead sufficient evidence to establish the
other underpayments.
Nonetheless
the applicant admitted that he made out the cheque on the documents
brought to him.
Therefore
it is reasonably possible that the applicant may have had Ex. H3 when
he made out the cheque and he should have detected the error. In the
circumstances I hold that the applicant was responsible for the said
underpayment. But it would be unjust to hold him wholly responsible
for it when Londlo himself admitted to the fact that he was
responsible for the error. As such Londlo was equally responsible for
the underpayment. Had the Company appointed a qualified accountant in
place of Mr Littler without entrusting the accounts to the applicant,
all these discrepancies could have been avoided.
I
now turn to another point. Londlo the Clerk in charge of Sales Tax of
the Company, who admitted responsibility to the error in the Sales
Tax Return for January 1987, is still employed by the Company,
presumably in the same capacity and no charges have been preferred
against him. Whereas the applicant who only went to the rescue of the
Company after the sudden resignation of its group accountant faced
the ultimate punishment of dismissal. This in my view is a clear
case of discrimination by the employer.
At
this stage I wish to refer to Ex. B which relates to the sales tax
payments by the Respondent Company for the period September, 1984 to
October, 1987. According to this, the miscalculations of sales tax,
whether it was over payment or underpayment had been a common
occurrence with the company all along and it appears that no action
had been taken against
9
those
responsible. However I think that the main reason for the Applicant's
dismissal was not on this issue but connected with his wife's alleged
involvement with the business at Siteki .
Having
carefully taken the above into consideration, I have come to the
following conclusions -
(1)
that the Disciplinary Inquiry was conducted without first charge
sheeting the applicant and giving him an opportunity of showing cause
against the action contemplated against him and thereby violating the
principles of natural justice.
(2)
that the applicant during the relevant period was the Manager
Personnel and Training as per his letter of appointment dated
18/5/1987 (Ex.E) and not the Group Accountant as suggested by the
Respondent. However the applicant at the request of the Company
attended to some of its accounts especially those relating to Sales
Tax Returns whilst holding the post of Manager Personnel S Training,
after the resignation of the Group Accountant Mr Littler.
(3)
That the Company conducted an internal investigation into the
underpayment of taxes presumably some time prior to the suspension of
the applicant. The applicant was neither questioned nor presented
with the Report of the investigation with a view to obtaining an
explanation from him. Therefore his suspension and subsequent
dismissal is unjust.
(4)
that the applicant was not wholly responsible for the miscalculation
of Sales Tax since Mr Londlo Dlamini himself admitted to the errors.
Therefore Londlo is equally responsible for the underpayments
10
together
with the Management. It is hard to believe that a reputed company as
Frasers should have neglected the appointment of a qualified
accountant when Mr Littler resigned instead of seeking the services
of the applicant.
(5)
that Londlo Dlamini who is equally responsible for the underpayments
of sales tax continues to work in the company in the same capacity,
while the applicant has been dismissed. This in my view is an act of
discrimination and should not be condoned in the interest of
industrial peace,
(6)
that the miscalculations of sales tax whether it was underpayment or
overpayment during the period September, 1984 and October, 1987 had
been a common occurrence and the Company for some reason or other had
overlooked. Therefore it could be assumed that the Company may have
overlooked this underpayment too had it not been for the
applicant's wife's alleged involvement in
the
business at Siteki .
(7)
that the termination of the Applicant is rather harsh and not in
conformity with the principles of natural justice. In my view a
written warning would have been just and equitable because -
(a)
He had faithfully served the Company for nearly 24 years, with an
unblemished record .
(b)
He went to the rescue of the company when it was seriously in need of
an Accountant.
11
(c)
He was not wholly responsible for the miscalculations and as such
these could have been overlooked as all the others.
As
you know warnings are important because they give the employee an
opportunity to change and improve. Lord Denning in Retarded
Children's Aid Society Ltd Vs Day 1978 ( RLR 128 at 130) said "it
is good sense and reasonable that in the ordinary way for a first
offence, you should not dismiss a man on the instant without any
warnings or giving him a further chance."
Having
very carefully considered the above I have reached the conclusion
that the applicant has been unfairly terminated.
On
the question of Relief, the applicant is claiming the following -
Salary
for 3 days (Nov. 1987) 270.00
Severance
allowance 19 800.00
Overtime
6 515.00
Compensation
11 700.00
38
285.00
The
applicant is claiming from the Company 3 days salary viz 1/11, 2/11
and 3/11 amounting to E270.00. Mr Flynn took up the position that the
one month's salary in lieu of notice included these 3 days. I am not
in agreement with Mr Flynn on this In my view that since applicant's
suspension ended on 3/11, on his dismissal, one month's salary in
lieu of notice should have been from 4/11/87 and not from 1/11.
Therefore the applicant is entitled to the 3 day's salary of E270.00
12
Since
there is no dispute regarding the computation of the severance
allowance, I allow the application for the payment of this allowance.
As
regards overtime payment the applicant is claiming a sum of E6515/=
from the Respondent Company. The company has denied liability to pay
this amount on the ground that he belonged to the senior management
of the Company who were paid enhanced salaries instead of overtime.
Perusing Ex.G, I find that his claims go as far back as 1980 and I
fail to understand as to why he waited so long to claim this amount.
I have some doubts as regards this claim and I accept the
Respondent's version that staff officers are not entitled to any
overtime payment. I reject this claim.
On
the question of compensation, I am of the view that an order for
maximum compensation would be just and equitable taking into
consideration the circumstances under which he came to be dismissed
from service.
Consequently
I order the Respondent Company to pay the applicant the following -
3
days salary (Nov. 1987) 270.00
severance
allowance 19 800.00
compensation
1 1 700 .00
31
770.00
I
enter this as an award of this Court. My Assessors agree with my
decision.
J.A.
HASSANALI ,
PRESIDENT
