IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 170/2000
In
the matter between:
REBECCA
GWEBU 1st APPLICANT
BUSISIWE
DLAMINI 2nd APPLICANT
and
CASH
BUILD SWAZILAND (PTY) LTD RESPONDENT
CORAM:
NDERI
NDUMA: PRESIDENT
JOSIAH
YENDE: MEMBER
NICHOLAS
MANANA: MEMBER
FOR
APPLICANT: M.MKHWANAZI
FOR
RESPONDENT: N. J. HLOPHE
JUDGEMENT
12/02/02
The
two Applicants Rebecca Gwebu and Busisiwe Dlamini were dismissed by
the Respondent on the 27th January, 1999 on allegations that they had
removed floor tiles worth Emalangeni Five Hundred and Sixty Rands to
wit twenty six (26) crates without paying for them in contravention
of the company policy.
A
disciplinary hearing conducted by the Respondent found them guilty as
charged The conviction was upheld by an appeal tribunal and the
decision to dismiss both of them was confirmed.
It
is common cause that both applicants had no previous record of
misconduct.
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The
first Applicant was employed by the Respondent in September 1988 and
was in continuous employ thereafter until the date of dismissal. An
attempt by the Respondent to contest the date of employment of the
first Applicant was discredited by the Respondent's own admission in
the replying papers and by the evidence of Mr. Malaysa Mavimbela, the
shop manager that indeed maybe the applicant was confirmed in 1992
though employed earlier. The court upon consideration of all the
facts of the case finds that the Applicant was employed in September,
1988. She was a chief cashier at the time of dismissal.
The
second Applicant was employed on the 1st Janaury, 1995 and was in
continuous employment until the date of dismissal. She worked as a
cashier.
The
two Applicants allege that the dismissal was unfair both in substance
and in procedure and was contrary to the provisions of the Employment
Act, 1980 for the reasons summarized as follows:
That
on the 11th August, 1998, at about 9.15a.m. the 1st Applicant visited
the Respondent's Mbabane shop to buy cement whilst she was on leave.
As she went out of the tills, she noticed tiles on a trolley next to
the till but on the opposite side. She enquired about the tiles from
the 2nd Applicant who had bought the tiles since she was aware that
they were old tiles that had been in the shop for a long while.
The
2nd applicant informed her that she had bought the twenty-six boxes
of tiles on a discount authorized by the Manager Malaysa Mavimbela.
She
asked the 2nd Applicant if she would sell to her some as she wanted
to make a strip of tiles. The 2nd Applicant informed her that she
could take thirteen (13) boxes at the marked down price of E20 per
box. She further allowed her to pay the purchase price later. At the
time of the conversation there was a cashier, the end controller and
three (3) shop assistants and they overheard that conversation.
The
End Controller and the shop assistants loaded the thirteen (13) boxes
to her car. Then the end controller, entered the manager's office,
which was next to the till and the 1st Applicant overheard him
explain to the Manager
2
that
she was about to leave with some of the tiles which he had given to
the 2nd Applicant.
The
manager came out of his office, stood next to the till and authorized
that she takes the tiles already loaded in the car.
On
the 15th August, 1998 she paid the M1 value of 13 boxes of tiles to
the 2nd Applicant in the sum of E260.00. This narration is fully
corroborated by the 2nd Applicant in her testimony.
The
2nd Applicant went on to narrate how the transaction was initiated
with the Manager and the oral agreements she had with him concerning
the payment of the tiles.
She
told the court that the tiles in question were considered obsolete by
the Respondent, and new stock was brought in. She negotiated a marked
down price with the manager in line with customary courtesy given to
the employees of the Respondent. The manager allowed her to buy them
at a discounted price of E20 per box. She did not have money then, so
she did not take the tiles immediately upon conclusion of the
negotiations.
The
following day, the manager inquired why she had not removed the tiles
and threatened to sell them to someone else. It was then, the manager
allowed her to take the tiles and pay later. With the help of one
Nhlabatsi, a shop assistant she moved the tiles to the till area.
It
was then that the 1st Applicant came to buy cement and noticed the
tiles, next to the till. She agreed to share the tiles with the 1st
Applicant. The shop assistant and end controller, via the cashier
loaded seme of the tiles in the 1st Applicant's van. The manager
consented to the removal without immediate payment upon an enquiry
made by the end controller.
The
same day in the afternoon she took her share of the tiles and on the
15th August, 1998, she received E260.00 in payment of the tiles she
gave to the 1st Applicant. She added E200.00 and handed over the
money to the manager because he was to mark the price down as agreed
and pay it to the cashier to ring the till. The manager had no
problem with that. At the time she was Acting Chief Cashier since the
1st Applicant was on leave,
3
The
1st Applicant returned to work in the month of August, subsequently
there were stock takes done and a shortage was discovered of numerous
items including the tiles.
A
shortage workshop was conducted wherein all the employees were called
in one by one and queried on possible causes on shrinkage. After the
workshop, the employees were given a general warning by the Regional
Manager and it was agreed that a new page would be opened from then
onwards aimed at improving the shrinkage levels at the shop.
On
the 20th January, 1999 a day after the workshop, the Applicants were
given a notice to attend a disciplinary hearing. The two Applicants
told the court that most of the employees had blamed the stock
shortage on the laxity of the shop manager. He was not happy about
this and hence the two suggested that the measure of charging the
applicants was taken as a retaliatory measure inspite that the
manager had authorized removal of the tiles without payment and that
he had infact been subsequently paid cash for the marked down tiles
but had negligently failed to pay in the amount into the cash
register and the sum of E460 was discovered in his drawer after the
disciplinary hearing that had found the Applicants guilty of removing
goods from the shop without payment contrary to company policy.
The
charge reflected that they had taken the tiles on the 6th November,
1998 without payment yet this transaction had been done on the 6th
August, 1998. The panel however stated that it was immaterial when
the goods were taken.
The
Applicant's further told the court that it was not the first time the
manager had accorded the staff similar concessions. Example was given
of timber that the 2nd Applicant had been allowed to take and pay
later. This was not denied by the manager.
The
2nd Applicant insisted that she had given the money for the payment
of the tiles on a Saturday the 15th August, 1998 in the afternoon
stating that the entry in the disciplinary hearing minutes that she
had done so on the 22nd August, 1998 was an error.
She
told the court that when the money was discovered in the manager's
drawer, the 1st Applicant called the chairman of the disciplinary
hearing to tell him that indeed the money paid to the manager was
found in his drawer. The discovery was made in the presence of the
Applicants' representative
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Sifiso.
She denied that she had planted the envelope with the money in the
manager's drawer adding that since the time they were served with
notice to attend a disciplinary hearing, they were on suspension and
had no opportunity to enter the manager's office.
She
denied further that her act of removing the tiles amounted to theft
stating that she had due authority to remove the tiles from the shop
by the manager and she had done so in his presence, the end
controller and other staff.
The
Applicants called Elijah Lukhele as AW3 to testify in support of
their case. He was the stock controller of the Respondent's shop
since 1991. He was still working as such at the time of his
testimony.
He
told the court that in August, 1998, he was still the stock
controller. He discovered that twenty-seven (27) boxes of tiles were
missing during a stock take. He reported to the cashier and end
controller. He was informed that the manager had authorized removal
of the tiles. The manager confirmed this and told him that he was
going to mark them down because new stock had been brought.
Lukhele
told the court further that he did not make any adjustment in respect
of the tiles since no payment had been made in respect thereof. He
said this was not the first time this had happened. Stock at times
would be taken out and payment made later.
Mr.
Lukhele did three subsequent stock takes and asked the manager about
the tiles. The manager told him that adjustments would be done.
In
December a large shortage of stock was discovered. This also happened
in January 1999. The Regional Manager visited the shop to conduct a
shrinkage workshop. The causes of the shortage were explored with
every employee being interviewed.
Mr.
Lukhele told the court that he had indicated that the indiscipline of
the manager was a cause of the shortage. That he allowed goods to be
taken out on quotation without payment. All staff including the
manager were subsequently given warning letters. They were told to
start afresh and improve the company's performance and that no one
would be victimized.
5
A
week later, when the manager informed him he wanted to discipline the
Applicants for taking the tiles, he reminded him that the issue had
been dealt with, They were however charged and the Manzini branch
manager Paul Gladwin prosecuted them. He was not called as a witness
to testify in the matter.
He
denied that the tiles were taken in November 1998 stating that it was
in August. He prepared a count sheet and gave it to the manager on
the same day. The sheets were signed for by himself and the manager
as an indication that the tiles were removed. On the date of the
hearing, he showed the manager the signed sheet and he took the
papers away. He did so to make the manager aware that the charges
were unfounded. He told the manager not to charge the Applicants but
he went ahead and did so. The manager replied that in the shortage
workshop people reported that he was indisciplined and it was then
time to show that he had discipline.
He
explained that there were three stock takes in September for August,
October for September and in December for November, He denied that
his testimony was concocted because he was disgruntled.
AW4
was Bernard Mdluli who at the material time worked as a cashier. He
was on duty when the tiles were removed and he was requested not to
ring them on the cash register. The tiles were loaded into a car. The
end controller asked for a till slip from him and he explained to him
what had happened. The controller went to the manager's office to
enquire about the tiles. The two came out, together and the manager
authorized the release of the tiles stating that he was going to mark
them down. Another batch of tiles was left in the shop. At the time
of his testimony he had been dismissed from his employment. He denied
however that he was making a story because he was dismissed. He
insisted that the tiles were taken in August, 1998 and not in
November. He insisted also that the manager was present when Rebecca
removed the tiles.
The
manager testified as RW1. He told the court that the shop had a huge
stock loss and when he made investigations he discovered that tiles
were missing. He remembered he had given the tiles to Busisiwe. He
had allowed her to take them at a marked down price of E20 per box
since he had received new stock. He had asked her to pay before
taking them or else he would give them to a customer. It was during a
stock take in November that'
6
he
discovered that the tiles were not paid for though the tiles had been
taken earlier. He thought this had happened in August but he was not
sure.
He
said he was not present when the tiles were taken and that until the
discovery, he thought they had been paid for. He added that he did
not allow removal of stock without payment as this was contrary to
company policy. He denied having authorized Applicants to pay later
and denied having received E460 in payment of the tiles on the 15th
August, 1998.
When
asked if 1st Applicant was employed in 1988, he said maybe she was -
confirmed in 1992. He denied that the two Applicants were owed the
number of leave days claimed though he did not know whether any leave
days were owed at all.
He
told the court that the money allegedly found in his drawer must have
been planted since he had received no money from the Applicants.
The
manager appeared to contradict himself as to when he actually
discovered the non-payment. The appeal record indicates that he had
noticed on the same day whereas he told the court that it was after a
stock take much later.
Paul
Gladwin testified as RW2. He was the branch manager for Cashbuild
Manzini. He chaired the disciplinary hearing against the Applicants.
He told the court that the Applicants were represented by Sifiso
Simelane.
The
case according to him was one of contravening company policy by
taking goods without payment which was a dismissible offence. There
was contention as to when this had occurred but he said the date was
immaterial. He said that the 1st Applicant did not deny the charge.
She said she got the goods from the 2nd Applicant and paid for them
later and had been made to understand that the manager had accepted
that arrangement.
He
found the two Applicants guilty as charged. They both appealed and
their appeal was dismissed. He said that the allegation of the money
paid to the manager was made after the hearing. He explained that it
did not matter if the manager had authorized the removal of tiles
without payment since the Applicants knew that was contrary to
company policy but the manager in any event had denied authorizing
the removal prior to payment. He said
7
inspite
that the two applicants had no previous warnings, the offence
committed was serious hence the dismissal.
He
denied that there was evidence of similar authorization by the
manager concerning timber.
He
said nothing was in favour of the Applicants other than their clean
record.
He
added that the end controller had told him that he allowed the tiles
to be removed after he had spoken to the manager who then gave him
the authority to release the goods. The end controller, inspite of
the fact that still worked for the respondent was not called to
testify before court on this aspect of his evidence which appears to
corroborate the evidence of AW1, AW2, AW3 and AW4.
The
end controller, Dumisa Mavimbela was not disciplined for his role in
the transaction according to this witness.
Upon
a careful consideration of the evidence by the Applicants, the
testimony in support of their case and the evidence in support of the
Respondent's case, the court has arrived at the following objective
facts:
1. That
the 2nd Applicant negotiated with the manager RW1 to buy 26 boxes of
out dated tiles, at a marked down price of E20 per box.
2. That
RW1 verbally authorized the marked down sale of the tiles to the 2nd
Applicant.
3. That
the 2nd Applicant did not collect the tiles immediately as she did
not have money and RW1, upon inquiry from her why she had not removed
the tiles, allowed her to take the tiles and pay later.
4. That
the 1st Applicant who was on leave at the time came to buy cement
from the shop and while there negotiated to buy 13 boxes of tiles
from the 2nd Applicant.
5. That
the 1st Applicant removed the tiles with the permission of the
cashier, end controller and the manager, (RW1) who was at the shop at
the time.
8
6. That
on the 15th August, 1998 a few days after taking the tiles, the first
Applicant paid E260 to the 2nd Applicant in consideration of the 13
boxes of tiles she had bought from her.
7. That
RW1 received E460 from the 2nd Applicant as payment for the tiles but
he failed and or neglected to mark down the tiles and document the
payment of the received amount which the court accepts was recovered
from his drawer.
The
court regards the credibility of RW1 as suspect and his account of
what -actually happened untrue. The evidence of the two Applicants
was well corroborated by AW3, AW4. The stock controller especially
who was still working for the Respondent cast very credible
aspersions on the conduct and testimony of RW1.
The
court believes that RW1 authorized the mark down and removal without
payment of the 26 boxes of tiles but beat an about turn after his
administrative skills were questioned during the shrinkage workshop
conducted on the 19th Janaury, 1999.
The
evidence that since August, 1998 he had known this transaction but
only charged the two Applicants on the 20th January 1999 after the
shrinkage workshop is telling on his bonafides.
The
court rejects his evidence concerning the transaction in its totality
and accepts the version narrated by the witnesses for the Applicants.
RW2,
the manager for the Manzini branch of the Respondent told the court
that it did not matter whether RW1 had authorized the removal of the
tiles to be paid for later or not since this was contrary to company
policy. This was a gross misdirection on his part as it was on the
basis that he found the applicants guilty as charged and dismissed
them from their employment.
He
disregarded the long service given to the Respondent by both
Applicants and took lightly their clean record up to the time of this
transaction.
It
is noteworthy that the 1st Applicant was a chief cashier for about
five years and the 2nd Applicant was a cashier, they had held
positions of trust in the Mbabane shop for considerable long periods
worthy of recognition in
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evaluating
whether it was reasonable or not to dismiss them in the circumstances
of the case.
The
court finds that in the circumstances of the case, the Applicants
could not be found liable for removing goods prior to payment if this
was done with the express authority of the branch manager. We indeed
find that this was the case here and the reactionary conduct of the
branch manager as evidenced by the delay to act only helped to
fortify the Applicants' case:-
Minor
discrepancies concerning who was present when an envelope containing
E460 was recovered from RW1's office is not sufficient to discredit
the consistent accounts given by the Applicants and their witnesses
concerning the events of 6th August 1998, 11th August, 1998 and
subsequent
events.
The
court finds the two Applicants credible witnesses worth of believe
and their accounts, consistent and very reasonable taking into
account all the circumstances.
The
Respondent has in the circumstances failed to show that the dismissal
of both Applicants was for a reason contained under Section 36 of the
Employment Act. The removal was done above board with full consent of
the manager, end controller and cashier on duty at the time and thus
could not be construed as a breach of the prevailing policy at the
Mbabane shop. Each case must be judged on its own merits. It was also
most unreasonable to dismiss the Applicants in the circumstances
considering their long service, clean record, responsibilities at
home and the overall circumstances of the removal of the tiles in
question.
The
1st Applicant is married with three children. At the time of
dismissal she earned E2500 per month. She got alternative employment
in May 1999. Currently she works for Consumer Credit and earns E2,300
per month. She got no terminal benefits upon dismissal and seeks the
same and in addition maximum compensation for unfair dismissal. She
claims 60 days in lieu of leave, but the court finds that she is
entitled to 26 days payment in lieu of leave.
The
2nd Applicant worked as a cashier and earned E2058 per month at the
time of dismissal. She is married and has one child. She is still
unemployed inspite efforts to get alternative employment. She is a
hawker now and earns
10
about
E400 per month, Her furniture was repossessed and her credit
facilities withdrawn for non payment. She seeks reinstatement to her
job and in the alternative terminal benefits and compensation.
Though
she claimed 60 days payment in lieu of leave, the court finds that
she was owed 26 days leave as contained in her particulars of claim.
She had not gone for leave in 1996 and 1997 and was entitled to 24
days per year.
Accordingly,
the 1st applicant will receive eight (8) months pay as compensation
for unfair dismissal in the sum of:
(8
x 2500) = E20,000
Notice
Pay = E 2,500
Additional
Notice = E 3,846
Severance
Allowance = E 9,615
Payment
in lieu of leave = E 2,499
TOTAL E38.460
The
2nd Applicant will receive (12) months pay as compensation for unfair
dismissal in the sum of;
12
x 2058 = E 24,696
Notice
Pay = E 2,058
Additional
Notice = E 949
Severance
Allowance = E 2,374
Payment
in lieu of leave = E 2,057
TOTAL E32.134
There
will be no order as to costs.
The
Members Agree.
NDERI
NDUMA
JUDGE
PRESIDENT - INDUSTRIAL COURT
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