THE INDUSTRIAL COURT OF SWAZILAND
AT MBABANE CASE NO. 40/98
the matter between:
LOTTERY TRUST (PTY) LTD RESPONDENT
APPLICANT: S. SIBANDZE
RESPONDENT: M. SIBANDZE
Applicant seeks maximum compensation for unfair dismissal, notice
pay, refund of unauthorized deductions in the sum of E435.64, payment
in lieu of rest days in the sum of E4,148.00 and payment in respect
of transport in the sum of E2,565.00.
Application was brought in terms of Section 65 (1) of the now
repealed Industrial Relations Act No.1 of 1996.
Applicant was employed on the 12th October, 1995 as a cashier,
promoted to supervisor in a lottery shop and was in continuous
employment until the 23rd May, 1997 when she was dismissed.
terms of annexure 'A' to the Application, the Applicant was dismissed
in accordance with Section 36 (b),(d) (g), (j) and (i) of the
Employment Act No. 5 of 1980. The letter of dismissal was signed by
the Managing Director of the Respondent Mr. W. Wunderlich.
Applicant denies she committed any offence that warranted dismissal.
She further states that no disciplinary hearing was held to prove the
allegations made against her and the dismissal was wrongful, unfair
earned E1,348.20 as a monthly salary.
her testimony she told the court that Mr. Wunderlich on the 27th May,
1997 told her that she had failed to fill in a safe control sheet in
time. Her responsibilities included over all responsibility for cash
and staff supervision at the shop.
was a gambling shop and in the morning at 7a.m. she would open the
shop, allocate float cash to the cashiers and prepare cash balances
at the closing time which was 10p.m. in the night and prepare
safe control sheet was a record of money handed over to her when the
shop opened in the morning. She told the court that Mr. Wunderlich
had on the day the shop opened given her less cash and instructed her
not to fill the sheet until he brought more float but he did not. She
therefore did not prepare the sheet before money was put in the
machines. She had spoken to a Mr. Lucas about the instruction she had
received from Mr. Wunderlich.
issue was discussed in a meeting with Mr. Khumalo, another manager of
the Respondent. All the Msunduza staff were called to this meeting at
Matsapha. They entered one by one. Mr. Wunderlich was present also.
was informed that Msunduza branch was not doing well and a decision
had been taken to close the shop. She was then given a letter of
dismissal and before she could say anything about the safe control
sheet, Mr. Khumalo left the meeting. He told her that the Head office
in Johannesburg had already taken a decision to dismiss her, while he
was not accused of misconduct in that meeting. She was not charged
for attending work under the influence of alcohol, she infact told
the court that she never took alcohol and had never done so in her
was also not charged for borrowing money from a customer.
was 27 years old and was still unemployed though she tried to get
alternative work. She was married with two (2) children.
respect of the claim for rest days, she said she started working as a
cashier at Manzini while she lived in Mbabane. She worked from
9.30a.m. to 10p.m. then. She did not take any rest days off. She was
transferred to Mbabane as a supervisor when Msunduza branch was
opened in early 1997.
also claims money spent for transport to and from work at night as
she was offered no transport.
too claims refund of money unlawfully deducted from her in respect of
alleged shortages at Msunduza shop on the day she was dismissed.
was put to her that she never filled any safe control sheet at
Msunduza shop from the day the shop opened up to her dismissal. She
denied the allegation stating that she was instructed to start
filling the sheet after there was a float shortage. Initially the
manager had instructed her not to fill the sheet as the float was
agreed she was not supposed to borrow money from a customer but
denied ever borrowing money from any. She said she had borrowed money
from a neighbour at Msunduza called Michael who worked at O.K. He was
a regular customer but she had borrowed money from him outside the
shop as she knew him.
was also accused of splashing water on a customer and going to work
drunk. She denied the allegations.
note that various allegations were put to the Applicant concerning
what Mr. Khumalo will tell the court but he was eventually never
called. Mr. Wunderlich was similarly not called to respond to the
evidence of the Applicant concerning the alleged instruction he had
given her and the meeting held at Matsapha.
was in the alternative put to her that she was in any event redundant
by fact of the closure of the shop. She argued that other branches
were open and she could have been transferred just like her
subordinates were relocated.
Applicant in support of the transport and rest days claim further
added that while she was based at Manzini, in the morning she boarded
a bus and at night, hitch hicked. She spent about E4.30 per day for
19 months. She worked 7 days a week and was not given rest days nor
paid in lieu thereof.
evidence was not rebutted by the Respondent.
Applicant further told the court that she had been requested to
record the float on a piece of paper which she did and the Managing
Director countersigned it whenever he came to the shop which he did
regularly. Mr. Wunderlich did not rebut this.
respondent called RW1 Sibongile Fikile Nkambule who worked at the
Mall Lotto shop. She previously worked at the Msunduza branch with
the Applicant as a machine attendant.
said that she could not remember when the Msunduza branch was opened
and that she did not know how much float the shop was given as that
was Applicant's responsibility. She said that she used the safe
control sheet on a daily basis at the shop during the opening and the
closing. In there was recorded float for the day when shop opened and
cash at hand during closing. The cashier and supervisor would sign
it. The sheet was not prepared until a certain time but they recorded
money on a daily basis at Msunduza shop.
said that Applicant did not record safe control sheet and at one time
she had prepared the sheet but Applicant refused to sign it.
further said that the Applicant borrowed money at the Msunduza shop
from a customer in her presence. This was after the customer won a
jackpot of E1,500.
knew Michael the customer and he resided at St Marks and not
also added that the Applicant accidentally poured water on a customer
while they were cleaning. Further the Applicant once came to the shop
drunk during closing time. She added that she knew Michael very well
as she went to school at St Marks where he lived.
said Applicant came to work at 8.30a.m. and upon opening the shop,
she left and came back during closing time. That is the way
explained that they were paid double the rate for holidays worked,
but she could not know if Applicant was paid for holidays as only the
insisted she was present when Wunderlich gave the float to Applicant
when the shop was first opened and that the Applicant was supposed to
fill the sheet though she did not know what was said to the Applicant
by Mr. Wunderlich about the issue.
shop was operational for only 3 months according to this witness and
it was during that time when she saw the Applicant borrow E200.00
from the customer. It was during the time when the Applicant splashed
water on a customer and came to work drunk. She said the issues were
discussed in a meeting with Mr. Marwick Khumalo when the shop was
about to be closed.
was Portia Nxumalo. She worked at Piggs Peak for the Respondent but
previously worked at the Mall branch and Msunduza as a cashier. The
Applicant was her supervisor. She said that Applicant did not fill
the safe control sheets for about 11 days. When she queried why she
did not fill the safe control sheet, the Applicant recorded the float
in a piece of paper and requested her to sign it, but she refused.
This was to cover the 11 days.
to her, the shop was opened for only two (2) months after which they
were called to the Head Office at Matsapha and the employees were
suspended. They were informed that there was a shortage and a sum of
E435.63 was deducted from all the employees salaries.
issue of Applicant having come to work drunk was discussed on the day
they were informed that the shop would close.
shortage issue was only raised after the shop was closed. The issue
of drunkenness or borrowing money too were not discussed until the
meeting prior to the closure of the shop.
denied that Applicant was given instructions not to fill in safe
was Michael Shabangu, a customer at Msunduza Lottery shop. He told
the court that he met Applicant at the shop. He first knew her when
she borrowed E200,00 from him after he had won a jackpot. He denied
knowing her prior or having lived at Msunduza as the Applicant had
alleged. This happened when the shop had just been opened. The
surprising thing about his testimony was that he claimed to have lent
E200.00 to a complete stranger. He alleged that the only reason he
gave her the money was because she had introduced herself as a
supervisor of the shop. She did not pay the money.
surprising aspect of this case is that inspite that the company is a
local one, with its Directors and Managers situated in the country,
non of the management members was called to tell the court the
reasons why it dismissed the Applicant.
is completely unsatisfactory evidence concerning whether the
Applicant was charged for committing any offence or whether a
disciplinary hearing was held where such charges were proven and
equally unsatisfactory was the lack of evidence as to the company
policy concerning the offences the Applicant is said to have
committed and the penalties if any such offences would attract once
they have been proven against the Applicant.
we have is evidence of two employees who were subordinates of the
Applicant both speculating on what transpired between the Applicant
and management. The third witness Michael does not take the
Respondent's case any further since he was never called by the
Respondent to discuss the issue concerning the money allegedly he had
given the Applicant prior to her dismissal.
Respondent's attorney indeed conceded that no proper disciplinary
hearing was held against the Applicant.
is clear that the Applicant was confronted with the various
allegations in a meeting where the closure of the shop was
communicated to her.
the absence of any evidence from the management of the Respondent it
is difficult to tell whether the dismissal was due to the closure on
or was because of the alleged misconduct which had occurred much
earlier and not at all dealt with.
is no evidence that the Applicant had any previous warning for
misconduct. The court concludes that she had a clean record in the
circumstances. Her subordinates were relocated to other branches of
the Respondent and it seems that the allegations against her were
raised as a last ditch effort not to redeploy her to another shop
upon closure of the Msunduza branch which did not last for more than
Applicant since 1996 had worked at the Manzini Branch as a cashier
and was transferred to Msunduza branch on promotion as a supervisor.
She denies all the allegations against her which after all have been
leveled by her former subordinates who still work for the Respondent.
She had no opportunity to confront them prior to her dismissal in the
absence of a disciplinary hearing. The court finds that on a balance
of probabilities the Respondent has failed to show that it dismissed
the Applicant for a reason provided under Section 36 of the
the Respondent has also failed to show that in the circumstances of
the case, it was fair and reasonable to dismiss the Applicant.
Applicant was a married mother with two children. Her demenour in
court was credible and straight forward. We do not give much weight
to the issues of credibility raised by the evidence of RW3, Michael
Shabangu as it appears improbable that he would have lent E200,00 to
a total stranger as he alleges.
evidence by the Applicant concerning the money owed to her in lieu of
rest days was unrebutted since no one with reasonable knowledge about
the issue came to testify before us. This is also true of the claim
in respect of transport.
Applicant has on a balance of probability established that indeed she
was entitled to the payments aforesaid.
evidence before court is that the Respondent was engaged in gambling
business and was duly registered in terms of the laws of the country.
We have no doubt that the business was subject to the regulations of
out under Legal Notice No. 62 of 1997 in the Hotel and Catering
Trades, under which casinos and gambling houses fall. The Notice is
promulgated in terms of the Wages Act, No. 16 of 1964.
14 provides that an employee shall be entitled to one rest day with
full pay in every period of seven days. The Applicant worked for
seven days in a week and was neither given or paid in lieu of rest
days in seven days.
Applicant was not provided with accommodation while she reported to
work at Manzini from Mbabane. She was not reimbursed money expended
for transport yet according to her evidence she remained at work up
to 10p.m. at night.
aforesaid evidence was not rebutted even though it was put to her
that Mr. Khumalo and the Respondent would contest such evidence. The
subordinates who testified did not take the Respondent's case any
further as they lacked details as to whether the Applicant was
entitled to the claims. The deduction made to the Applicant's salary
must equally be refunded.
the result we find that the Respondent dismissed the Applicant
wrongfully and unfairly and that it was unreasonable to dismiss her
in the circumstances of the case. The court awards her six (6) months
salary as compensation for the dismissal. She will be paid one
month's pay in lieu of notice.
computation will be as follows :
PAY E 1,348.20
FOR REST DAYS E 4,148.00
FOR TRANSPORT E 2,565.00
FOR UNAUTHORISED DEDUCTION E 435.64
will be no order as to costs.
PRESIDENT - INDUSTRIAL COURT