IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO.108/2000
In
the matter between:
DUDU
SIMELANE APPLICANT
and
SWAZI
SPA HOLDINGS LIMITED RESPONDENT
CORAM
KENNETH
NKAMBULE: JUDGE
DAN
MANGO: MEMBER
GILBERT
NDZINISA: MEMBER
FOR
APPLICANT: MR. M.Z. MKHWANAZI
FOR
RESPONDENT: MR. N.J. HLOPHE
JUDGEMENT
15/2/02
The
applicant seeks maximum compensation for unfair dismissal, payment in
lieu of notice, additional notice and severance pay. The cause of
action is alleged to have arisen from the respondent's conduct of
terminating the services of the applicant unfairly on the 16th
December, 1998.
Applicant
testified under oath and said she was employed by the respondent in
1984 and that her services were terminated in 1998. She was dismissed
after a disciplinary hearing for allegedly fighting at work and theft
of meat.
According
to the applicant in November 1998 there was a Chinese party at
Ezulwini Sun. At the end of the party she asked for a piece of meat
which was part of left overs. Solomon Dlamini, the acting head chef
gave her the piece of meat.
Applicant
told the court that she was given wine by one Cynthia. According to
applicant she poured the wine in an empty bottle - and on her way
home
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she
started to drink her wine. She got so drunk that she did not know
what was happening.
In
the morning a security car came to her residence. The security
personnel told her that she fought with some people in the bus that
ferried her home.
Applicant
had apparently left her bag in the bus. From the bag the security
personnel retrieved a piece of meat weighing 500 grams. She was
eventually charged with theft of meat and for assaulting her fellow
employees. The outcome of the hearing was dismissal.
Respondent
called the chief cook, Solomon Dlamini who according to applicant,
gave her the piece of meat. Solomon denied giving the applicant the
piece of meat. According to this witness, the meat in question was
suspected to be contaminated with grease cutter and as such the meat
could not be given to any person as the substance is poisonous.
Applicant
was a security officer. She was aware of the rules. She admits under
cross examination that all items at the hotel could only be taken out
with a 'pass out' obtainable from those in charge. As a security
officer the applicant was the one to ensure that the said rule was
not breached.
On
the question of assault, RW3, Jabulani Zikalala said the applicant
assaulted one Makhekhe Zikalala whom she also insulted. She further
went on and assaulted RW3 whose jacket was torn in the process.
Applicant
in her evidence told the court that after drinking her wine she does
not know what happened thereafter. She did not deny having assaulted
the two.
The
evidence given by Jabulani Zikalala in this regard is credible and
there is no reason to suggest that it was concocted. This witness
could not be shaken under cross-examination.
On
the theft charge it is clear that the applicant took the meat without
authority. According to company policy, unauthorised removal of
property from the company premises constitutes theft. The meat was
quite a small amount, however, applicant in her position as the
security officer was supposed to be exemplary in this regard. She was
a security officer and as such responsible to execute the policy of
the company. She was the one
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responsible
to see to it that employees who had in their possession company
property had 'pass outs'. Her position was that of trust and she
betrayed such trust.
Regarding
the count of assault; applicant as a security officer was charged
with a duty of maintaining peace and order in the company. It is
unfortunate that she decided to drink until she could not know what
was happening around her.
After
considering all surrounding circumstances it is the opinion of this
court that it was reasonable for respondent to terminate applicant's
services.
Consequently,
the application is hereby dismissed.
No
order as to costs.
Members
concur.
KENNETH
P. NKAMBULE
JUDGE
(INDUSTRIAL COURT)
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