IN
THE INDUSTRIAL COURT OF SWAZILAND HOLDEN AT MBABANE
CASE
NO: 19/89
In
the matter between:
MUSA
KHUMALO Applicant
VS.
UNITRANS
SWAZILAND LTD. Respondent
CORAM
: J.A. HASSANALI President
MR
B. SIMELANE For Applicant
MR
P. FLYN For Respondent
MR
MOKGOKONG AND MATSEBULA Assessors.
AWARD
(Delivered
22nd December, 1989)
Hassanali,
P.
The
Applicant in this application is claiming from the Respondent Company
the sum of E6708/60 being terminal benefits and compensation for
unfair termination.
At
the commencement of the trial, Mr Simelane representing the Applicant
applied to amend the prayer (c) of his application to read as
E606/20. Mr Flyn representing the Company raised no objection and as
such the amendment was accepted.
At
the conclusion of the trial, during the final submissions, Mr Flyn
raised an objection to the Conciliation Report annexed to the
application and asked the Court to disregard it because the Officer
who made it was not called to give evidence. After hearing both
Representatives, the Court overruled the objection on the ground
that the Report was part of the Applicant's appliation and that it
had been referred to in Paragraph 6 of the Application. Furthermore
its contents had been admitted in the Respondent's reply.
I
will now deal with the evidence in this case. According to the
Applicant he was recruited in 1980 at Matsapa as a general labourer.
2
In
January 1981, he was transferred to Bhunya with the promise of
accommodation there, as soon as the houses that were being
constructed, were completed. Meanwhile he was provided free transport
from Malkerns to Bhunya and back and this arrangement went on for
about 3 months, when one day he was suddenly told that he should find
his own transport. As a result he was compelled to use public
transport which very often arrived late. This was a source of
constant friction between him and Mr Atkinson, the Depot Manager. The
already strained relationship was further aggravated when the
Applicant realised that the house he was promised was not forth
coming. Mr Shaw, the Operation Manager however flatly denied that a
house was ever promised to him but stated that free transport was
promised to Applicant for 3 months. Taking into consideration the
free transport that had been provided to the Applicant, it is quite
likely that the Respondent may have promised him a house when such a
house was ready. Anyway it is of relevance to refer to Sec. 152 of
the Employment Act, which casts a duty on an employer to provide
accommodation to an employee, if he had been asked to work some
distance away from his home. In this case the Applicant lived in
Malkerns and his work place was at Bhunya. As such it would have been
fair had the Company provided him with some sort of accommodation,
which would have eased his financial hardship.
I
now turn to the events of 24/6/88 which ultimately led to the
Applicant's dismissal. But before I do so,
I
wish to refer to the letter (Ex.G) which has set out the following
reasons for his termination -
(a)
failure to take lawful instructions from his Depot Manager
(b)
threatening to assault the Depot Manager, technical Supervisor and
Assistant Depot Manager.
(c)
showing gross insubordination to senior staff members of the
Department.
According
to Mr. Atkinson, on the day in question the Applicant arrived late to
work wearing an overall which he said belonged to Usutu Pulp Co. As
it was against the Company policy to wear a di fferent overall, he
3
directed
him to clock out and come back in the Company overall. The Applicant
refused maintaining that he was wearing the Company overall. An
argument then ensued between the two in the course of which Mr
Atkinson removed the Applicant's clock card and went into the office
of the Technical Supervisor. The applicant followed him there and
grabbed him by his arms to relieve him of his card.
At
this stage Mr Coetzer, the Technical Supervisor, intervened and
separated them. Though Mr Atkinson was corroborated on the question
of the overall by other witnesses who happened to be Company
employees, the labour,Officer who enquired into this dispute, after
due investigation has stated in his Conciliation Report that the
Uniform (overall) the Applicant wore on the day in question was
really an old Company uniform. In view of this, I have some doubts as
regards to the correctness of the evidence of the Respondent's
witnesses. However under the circumstances a reprimand would have
been reasonable without the applicant being ordered to clock out.
Coming
now to the attempted assaults on Mr Atkinson, Mr Coetzer, and Mr
Percy Khumalo the Assistant Depot Manager, the applicant has denied
these allegations. Mr Atkinson maintained, that the applicant did
grab him by the arms, with the sole purpose of taking back the card,
and his evidence has been sufficiently corroborated by that of Mr
Coetzer who had been an eye witness to this incident.. In the
circumstances I accept Mr Atkinson's evidence. The question is
whether the applicant did so with intent to assault. However looking
at the evidence it seems to me that the main purpose of grabbing Mr
Atkinson wa to get back his card and this was admitted by both Mr
Atkinson and Mr Coetzer. As such there was no intention of assault
and grabbing in this case n my view does not constitute an attempt to
assault. Therefore taking this into consideration a warning would
have sufficed.
As
regards to the attempted assault on Mr Coetzer, Mr Coetzer himself
has denied of any such assault. Therefore 1 accept the Applicant's
denial.
4
Taking
the Attempted Assault on Mr. Khumalo, this incident according to Mr
Khumalo took place long after the applicant was dismissed. Hence this
has no relevance to the applicant's dismissal.
I
now turn to the question whether or not a Disciplinary Inquiry was
held. In this respect Mr Philip Dlamini, Personnel Manager, told
Court that he conducted a disciplinary inquiry at Bhunya at which the
Applicant, Mr Atkinson and Mr Percy Khumalo were present. Neither Mr.
Atkinson nor Mr. Khumalo spoke of any Inquiry in their evidence.
Their only reference was to a meeting which did not take place
because of the applicant's refusal to attend it. This meeting was to
discuss the Applicant's problem regarding the overall and his
lateness in getting to work. The applicant on the other hand denied
of any such Inquiry. 1 have very serious doubts as to whether an
Inquiry was ever held and this in my view is confirmed by the letter
of termination (Ex.G). 1 wish to quote the relevant extract -
"Following
our discussion in my office today, this serves to confirm that your
services has been terminated with immediate effect. This follows
numerous complaints from the Depot Manager regarding your behaviour
and conduct."
This
letter does in no way suggest that he had been dismissed as a result
of an Inquiry. On the contrary it seems to me that he had been just
fired on the complaints made by the Depot Manager, which in my view
is an undesirable practice and should be condemned.
On
the question relating to "gross insubordination to the Senior
Staff members of the Department", 1 find that no additional
evidence had been led by the Respondent to substantiate this
allegation except the evidence that had already been led in respect
of the other two grounds. These have been already dealt with in my
judgment.
Having
very carefully considered the evidence in this case in its
5
entirety
from every possible angle, it inevitably leads to only one conclusion
that the Applicant had been unfairly terminated. Granting that the
Applicant had been disrespectful to Mr Atkinson, the facts remains
that the punishment meted out to him was rather harsh considering his
long service to the company and also that the Company itself had been
responsible for the situation in which the applicant found himself
in.
The
applicant is claiming the following from the Respondent for his
unfair termination -
1
month's wage in lieu of Notice 259.80
Additional
Notice 336.00
10
days severance allowance 606.20
6
months Compensation 1558.80
Bus
Allowance 4074.00
6834.80
According
to the Applicant he had been unemployed since he was dismissed from
service. He is married and has 11 children. Taking these and the
circumstances under which he came to be dismissed, an order for
maximum compensation would be just and equitable.
The
Applicant is also claiming bus allowance amounting to E4074.00. Since
he did not adduce any evidence as to how he came by this figure, I
refuse this claim.
Consequently
I order the Respondent Company to pay the Applicant the following -
1
month's wage in lieu of Notice 259.80
28
Additional Notice 336.00
70
days severance allowance 606.20
6
months Compensation 1558.80
2760.80
6
I
enter this Judgment as an Award of this Court.
My
Assessors agree with my decision.
J.A.
HASSANALI,
PRESIDENT-
