THE INDUSTRIAL COURT OF SWAZILAND
AT MBABANE CASE NO. 110/98
the matter between:
D. GROUP INVESTMENTS (PTY) LTD RESPONDENT
APPLICANT: M. MNISI
RESPONDENT: Z. JELE
Applicant brought an application for determination of an unresolved
dispute in terms of Section 65 of the Industrial Relations Act No. 1
of 1996. He claims compensation for unfair dismissal and payment of
notice pay, additional notice pay, severance pay and leave pay being
terminal benefits emanating from the dismissal.
Applicant was employed in 1993 and was in continuous employment until
the 19th November, 1997. At the time of dismissal he worked as a
stock controller at Price n' Pride Furniture warehouse at Matsapha
and earned E2,005 per month.
claim for payment of additional notice pay was truck off by the court
since the same was not conciliated upon and does not appear on the
certificate of unresolved dispute.
Respondent denies that it dismissed the Applicant unfairly in that
the Applicant was charged and found guilty of misappropriating
company property that was discovered by Police in his house. He was
subjected to a disciplinary hearing which found him guilty as
charged. That the Applicant appealed against the finding of guilt but
the appeal was dismissed.
Respondent further denies that it did not afford the Applicant a
representative of his choice in terms of company policy but admits
that it did not allow an attorney to represent the Applicant since he
was entitled to representation by a co-employee in terms of the
of the charges preferred against the Applicant was that of conducting
himself in an unofficial capacity in such a manner as to expose the
Respondent to financial loss and failure to report stock losses when
same occurred under his supervision and control.
Applicant in his testimony stated that as soon as he was appointed to
the position of stock controller, he had a dispute with the shop
taking was not done before the hand over to him and that he was
called to a stock take on a Sunday while he was off duty which he was
unable to attend due to pre-arranged commitments for the day.
notice to report to work on the Sunday was too short and the manager
refused to countenance his explanation that he would not be able to
report for work.
Monday when he reported for work, the storeroom keys had been taken
by the manager. He had obtained the keys from the Applicant's wife at
his house. The Applicant said it was irregular, especially because no
stock take had been done during the hand over and the Applicant would
be unable to tell if there was a shortage of stock, and if any, when
it had occurred.
the 31st August, 1997 Police Officers came to the work place and led
him to his house. They conducted a search. The Officers had a sheet
of paper with a. list of furniture items they were looking for which
comprised of 3-piece bedroom suite, conti-mini multirobe, 3-piece
hillary lounge suite and hifi with speakers. He saw the list before
they entered the house.
Police brought a shop stock clerk to help identity the items in the
house. They took a felicity headboard with pedestals and conti single
robe and two seater hillary lounge suite.
Applicant told the court that these items did not correspond to those
the Police were looking for.
Applicant explained that he had bought the felicity headboard with
pedestals from a second hand dealer named Tembe and the lounge suite
from an Indian 2nd hand dealer who he could not remember his name.
he had bought the conti-single robe from a driver of a delivery truck
that delivered stock to the Respondent. The driver's name was Moses
Ramosa. It was an extra item which they did not collect and instead
offered to sell it to him at E200.00. He paid E150.00 for it. Under
cross examination he contradicted himself on the actual amount paid.
a stock take conducted on the 27th August, 1997 the Applicant was
informed that there was shrinkage of stock and was given a letter of
suspension by the manager. He remained suspended for about 2 - 3
was then called to a disciplinary hearing. His lawyer was not allowed
to represent him. He was asked to bring a co-worker. After the
proceedings which the Applicant described as irregular, he was
dismissed. He appealed but was also unsuccessful.
cross examination the Applicant admitted that the bedroom suite had a
company sticker on it. He said that he had bought if from a 2nd hand
dealer by the name of Tembe based in Johannesburg, He bought it at
the Swaziland Warehouse. He bought it for about E400.00 though its
value in his view was between E999.00 - E1,200. He however could not
deny that its value was about E1,850. Tembe collected the 2nd hand
item from the shop before selling it to him. He said it was cheaper
buying from the dealer than doing so directly.
Applicant told the court that when the stock is sold to second hand
dealers, the stickers are not removed.
auctioned his stock, hence it was cheaper to buy from him. He alleged
though that employees were allowed to buy 2nd hand items directly
the shop. He was at a loss to explain if he bought from Tembe the
bedroom suite at a lesser price than Tembe had bought from the shop.
said he had in the past bought 2nd hand items from the warehouse
apart from the one he bought from Tembe. He had no receipt from Tembe
and was not given one, he testified.
bedroom suite was classified as non standard as the stool was missing
and it had no dressing table.
concerns the single robe, he said he bought it from a Johannesburg
truck. He bought it for between E150.00 - E200.00, He had offered a
purchase price of E50.00 but the truck crew declined. The robe was
always sold in a set but not single as he had bought it. He said
nothing forbid him from buying furniture from the Respondent's
transport crew. As for the hillary lounge suite he bought it from an
Indian. He said that he had bought it for E250.00 though in chief he
said that he bought it for between E300.00 - E600.00.
bedroom suite was still covered in plastic but he insisted that it
was second hand.
Applicant abandoned the disciplinary hearing before he had testified.
He appealed the decision of the disciplinary hearing. This was
conducted like a full hearing and the dismissal was upheld.
denied that Ambrose had identified a company sticker on the single
wrapping on the furniture he alleged was not original but was done by
the warehouse employees to keep off dust.
Applicant upon interrogation by the Police was indicted. The items
found in his house were taken into Police custody. He was however not
prosecuted. The items got lost in Police custody and he obtained an
order for restitution of the furniture pursuant to which the
Respondent replaced the items.
was alleged that the Applicant deliberately avoided to be present
during a Sunday stock take because he was aware of the missing items.
said he was not aware of a staff buying policy. He further said he
was not aware that he could not purchase from the suppliers of the
Respondent nor did he know that staff could not buy trade-in,
repossessed items or items that had been marked down.
said he was aware only that they could not buy repossessed goods but
they could buy from 2nd hand dealers.
agreed that evidence was led at the inquiry identifying the items at
his house as having come from the Respondent's shop.
said he was not in a position to bring to court people from whom he
had bought the furniture items nor did he show a single receipt for
Respondent called Louis Johannes Buys as RW1. He was presently self
employed but at the material time was Field Credit Manager for the
J.D. Group of companies.
knew the Applicant as he chaired the appeal hearing against him. He
produced the record. The appeal was conducted as a full disciplinary
hearing because the Applicant had abandoned the disciplinary hearing
told the court that a stock take at the warehouse had found a robe,
bedroom suite and lounge suite missing. Similar items were found at
the Applicant's house. The conti-robe in particular had a company
sticker and according to the company procedure, goods in custody of a
supplier and not yet received by the shop, do not bear company
stickers. Therefore the robe could not have been bought from a
supplier. It came from the shop.
Applicant did not produce a receipt prepared from where he claimed he
bought the felicity bedroom suite nor did he produce an invoice or
records did not show that he had bought a felicity bedroom suite from
the company. The headboard was still covered in a plastic meaning it
was a new item and not 2nd hand.
hillary lounge suite was also wrapped in a plastic. That particular
design was currently on sale by the company. The explanation that he
bought it from an unknown Indian was not satisfactory. No receipt was
produced either nor did he call any witnesses to authenticate his
was illegal according to the witness to buy from a delivery track
because the stock belonged either to the supplier or to the buyer.
upheld the decision of the disciplinary hearing to dismiss the
Applicant as he was guilty of misappropriating company property. He
also abused position of trust.
court is satisfied that the Applicant was in possession of property
that was specifically manufactured for the Respondent. That some of
the items bore company identification stickers. That the Applicant
failed dismally to explain or to show that he had lawfully obtained
the items from the Respondent's shop or warehouse.
Applicant was a stock controller and in a position of trust. He
abused his position to the detriment of his employer.
he was not prosecuted by the Police, and as a result was able to
recover the items confiscated from him by the Police, the Respondent,
has on a balance of probabilities shown that it dismissed the
Applicant for a reason contained under Section 36 of the Employment
Act, 1980 and that it was just and reasonable, taking all the factors
into consideration to dismiss the Applicant.
the result, the Application fails in its entirety.
PRESIDENT - INDUSTRIAL COURT