IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 146/2000
In
the matter between:
PATRICK
NGWENYA APPLICANT
And
MANZINI
DIESEL ELECTRIC (PTY) LTD RESPONDENT
CORAM:
NDERI
NDUMA: PRESIDENT
JOSIAH
YENDE: MEMBER
NICHOLAS
MANANA: MEMBER
FOR
APPLICANT: M. MKHWANAZI
FOR
RESPONDENT: Z. JELE
JUDGEMENT
31/05/01
The
Applicant was an employee to whom Section 35 of the Employment Act
No.5 of 1980 applied having been employed on the 16th February, 1981
as a sales representatives and was in continuous employ of the
Respondent until November, 1999.
The
Applicant was dismissed after he was found guilty of insubordination
by a disciplinary panel at the work place. He contests his guilt and
alleges that the dismissal was both procedurally and substantively
unfair.
The
dispute between the Applicant and the Respondent that eventually led
to his dismissal involved use of company motor vehicles during the
weekends.
Numerous
correspondence on this issue was exchanged between the parties and
maybe summarized as follows :
1
On
the 18th August 1999 Mr. Mike McGroarty wrote to the Applicant
exhibit 'A1' wherein he observed that the Applicant had in the past
been involved in numerous accidents with the company vehicles all of
which seem to have occurred during weekends. The Applicant was
accordingly instructed to use Mitsubishi colt SD 947 AW for business
purposes and to and from home during Monday to Thursday. He was to
leave the vehicle at the company premises at 5.00p.m. on Fridays.
The
Applicant replied to this memorandum on the same date indicating that
he regarded the instruction not to use the company motor vehicle over
weekends as a ploy to frustrate his working life. He denied that he
had caused several accidents over the weekends citing only one
accident involving an indicator light and corner bumper.
The
Applicant alleged he was subjected to ill treatment by Ms supervisor
infront of staff and customers. He regarded the instruction as a
demotion that was unfair and embarrassing. The allegations by the
Applicant are contained in exhibit 'A2' followed up by exhibit 'A3'
which the Applicant wrote to the Directors of the Respondent alleging
victimization and racist conduct against him.
The
Respondent documented the various accidents caused by the Applicant
allegedly on weekends in exhibit 'R3' The document shows the
following :
"1. On
the 20th February 1984 the Applicant was issued with a final written
warning for driving company car whilst under the influence of
alcohol. The Applicant admitted this incident.
2. on
the 25th August 1989 a company vehicle was stolen whilst parked by
the Applicant at a stadium during a weekend music festival. This
incident was also admitted by the Applicant
3. On
the 8th May 1990 whist Applicant drove SD 295 TM he was involved in a
collision. The accident happened at night on a weekend. The Applicant
disputes this accident.
4. On
the 2nd March 1991 the Applicant was involved in a minor motor
vehicle accident. This occurred on a Sunday. Applicant did not admit
this accident.
2
5. On
the 18th August 1994 Applicant admitted to have had an accident
involving SD 983 XM wherein he knocked down a cow. The Applicant did
not report the accident and therefore insurance cover was denounced.
He was given a final written warning following this accident.
6. Further,
the Applicant admitted being involved in an accident on the 17th
September, 1996 when motor vehicle SD 983 XM rolled on its own at his
compound and hit a house. The car was extensively damaged. This
accident occurred on a weekend also.
7. Finally
on the 2nd August 1999 the Applicant was again involved in an
accident with SD 983 XM".
Following
the memorandum of 18th August 1999, and upon receipt of the response
from the Applicant on 27th August, 1999 Mike McGroarty wrote exhibit
'R7' to him which document precipitated the dispute that eventually
led to the Applicant's dismissal.
The
Applicant did not honour the instruction not to take the company
motor vehicle home over the weekends with effect from 7th September,
1999 and as a consequence thereof he was served with a notice of
suspension marked exhibit 'A4' and dated 13th September, 1999 pending
finalization of disciplinary proceedings again him. The suspension
was without pay. The Applicant had taken the company motor vehicle
home over the weekend between the 10th - 13th September, 1999 in a
blantant disregard of the company directive.
The
disciplinary hearing was held on the 21st September 1999 and was
chaired by Attorney S. C. Simelane. The Applicant having been given
an opportunity to find a representative of his choice on the 16th
September 1999 appeared in person on the 21st September 1999.
He
faced three charges, namely:
1. refusal
to obey lawful instruction
2. unauthorized
use of company vehicle.
3. Poor
work performance.
3
According
to the Respondent's case and the minutes of the disciplinary hearing
introduced as exhibit 'A5' by the Applicant, the Applicant pleaded
guilty to the charge of refusal to obey lawful instruction but
contested the second and third charge.
It
was specifically alleged that on the weekend between the 10th and the
13th September 1999 the Applicant did not return motor vehicle SD 947
AM to the company premises as per written instruction but only
returned it on the morning of the Monday the 13th September, 1999.
The
Applicant admitted to having received such instruction and infact
produced exhibit 'A1' containing such instruction.
The
Applicant's defence was that he had raised written objection to the
instruction not to use company vehicles over the weekend and
therefore he was not obliged to obey the instruction pending the
resolution of the matter.
The
Applicant did not contest that he took motor vehicle SD 947 AM home
on the 10th September 1999 stating that he intended to work on the
Saturday of the 11th September, 1999. This was the reason for taking
the car away. He alleged victimization by his Manager as he had been
threatening to withdraw the motor vehicle from him for the past six
months prior to this incident.
The
disciplinary tribunal found the Applicant guilty of failure to obey
lawful instruction and further found that count two was a mere
duplication of the first count as disobedience of the instruction
related to the failure by the Applicant not to use company motor
vehicle over the weekend. He therefore acquitted the Applicant on
count two for duplicity and lack of sufficient evidence to sustain
the offence of misuse of the vehicle between the 10th and the 13th
September 1999.
The
Applicant was found guilty for poor work performance by the tribunal
but it proceeded to find that the Respondent had not prior to the
charge given a written warning to the Applicant concerning his poor
work perfomance.
Upon
a careful analysis of the evidence by both the Applicant and the
witnesses of the Respondent, it is our view that the Applicant had
caused numerous accidents involving Respondent's motor vehicles over
the years and most of them occurred during weekends.
4
The
Applicant had been given numerous warnings about his conduct after
the various motor vehicle accidents over the weekends.
The
Applicant protested to such instructions and went ahead to defy them.
This conduct amounted to insubordination of the first degree.
Indeed
the Respondent had shown great restraint over the years in dealing
with the Applicant to the extent of giving him several final warnings
but to no avail.
In
our view, the allegations of victimization made by the Applicant are
without any basis.
There
is no evidence before us to support the charge of poor work
performance especially in view of the fact that no previous warning
in this respect had been issued to the Applicant.
The
Applicant's perennial misconduct was insubordination and misuse of
Respondent's motor vehicles which he was appropriately found guilty
of
In
the circumstances, the Respondent has satisfied both the requirements
of Section 36 and Section 42 of the Employment Act in dealing with
the Applicant, He was found guilty of a dismissable offence and
considering the extent of disregard of company instructions, it was
fair and reasonable to dismiss him in the circumstances of the case.
Upon
dismissal the Applicant was paid funds due to him for overtime, two
weeks salary in lieu of notice and a payment of three months salary
as a final package.
In
the circumstances the Application must fail in its entirety and we so
order.
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