IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 219/98
In
the matter between:
MICHAEL
ZWANE APPLICANT
And
SKONKWANE
HARDWARE (PTY) LTD RESPONDENT
CORAM:
NDERINDUMA: PRESIDENT
JOSIAH
YENDE: MEMBER
NICHOLAS
MANANA: MEMBER
FOR
APPLICANT: M.MKHWANAZI
FOR
RESPONDENT: N. J. HLOPHE
JUDGEMENT
06/06/02
The
Applicant claims maximum compensation for unfair dismissal, notice
pay, additional notice, severance allowance and payment in lieu of
leave pay. The Application was brought in terms of the now repealed
Industrial Relations Act.1
The
Applicant was employed on the 6th November, 1992 as a driver and was
in continuous employment until the 28th February, 1997 when he claims
he was wrongfully, unlawful and unfairly dismissed for failure to
follow company procedures when collecting cash from some of the
respondent's outlets.
The
Applicant earned E625.00 per month at the time of dismissal, he was
summarily dismissed without payment of terminal benefits.
1
Act No. 1 of 1996
1
In
his testimony the Applicant told the court that on the 30th December,
1996 he was assigned to drive his manager Vincent Dlamini to
Nhlangano branch, Enock Mndzebele the branch manager asked him to
collect cash from other branches though it was not part of his normal
work to do so. He had no knowledge of the money collecting procedure.
He
asked for a briefcase to carry the money from Mr. Enock Mndzebele who
told him that the cash box was not functional. He gave him plastic
bags for the purpose. Himself and Vincent Dlamini proceeded to Mageza
branch where they left the manager with plastic bags. They proceeded
to Hluthi branch and left other plastic bags there. Vincent was left
there and he drove alone to Lavumisa branch. It was around 1 p.m. in
the afternoon.
At
Lavumisa, the cashier requested him to wait for her to prepare the
cash but he decided to go to Hluthi and come back the following day.
At Hluthi, cash was ready, he took it. He proceeded with an employee
based in Siteki Musa Bhembe who had asked for a lift. At Mageza cash
was not ready and he waited outside for about 10 minutes.
As
he bent down to collect the money, he was hit on the shoulder and
ordered to lie down. Gunshots were fired. Everybody lay down
including the customers.
The
robbers took the motor vehicle keys and they drove off. The money
from Hluthi was in the motor vehicle.
They
telephoned the Police at Mhlosheni Post office. The Police arrived at
Mageza. The Police recovered the used cartridges and bullets and took
them away for interrogation.
The
motor vehicle was recovered by the Police. They were released by the
Police but on the 21st January, 1997 he was re-arrested and was
charged for armed robbery. The charges were later withdrawn by the
prosecution.
On
the 28th February, 1997 he received a letter of dismissal. He was not
brought before a disciplinary hearing. He was told he could appeal
the dismissal. He denied a disciplinary hearing was held on the 26th
February, 1997, 30th May, 1997 and 27th June, 1997. He was currently
employed by Saligna Development Company in Nhlangano, where he
started working in
2
February
1999 at a monthly salary of E1,200 per month. He was 34 years old
with four dependant children. He also supported his mother.
He
denied under cross examination that he had been trained by one John
Lacken to transport money in 1996. He further denied that at that
training John demonstrated how to operate a security smoke box for
carrying money.
He
further denied that part of the driver's duty was to collect money
from Respondent's branches.
The
Applicant told the court that he had been requested to start fetching
money after John Lacken had left the employ of the Respondent. He had
done so several times under the instruction of Enock Mndzebele the
branch manager.
He
denied that the Liaison Manager had at any time instructed him not to
collect money without a smoke box. He said that he was not aware of
such a standing policy and denied that he had always used a smoke box
and was not to drive alone whenever he collected money. Sometimes he
was sent alone to collect money. He was also never escorted by the
Police. He heard about Police escort for the time first after the
robbery. Drivers had not been asked to arrange for Police escort. The
branch manager is now employed by Bromor Foods.
He
was aware of the rule never to give a lift to any stranger. He denied
that he had given a lift to a stranger at Mantambe area. From Hluthi
to Mageza he had given a lift to an employee Musa Bhembe and he had
over E41,000 in the motor vehicle.
It
was put to him that Musa Bhembe would tell the court that he gave a
lift to a stranger. He reiterated the denial.
Concerning
the smoke box issue, the Applicant told the court that he had
requested for it from the manager who told him it was defective. He
denied that management was not aware that the briefcase was not
functional.
RW1
was John Larken, who collected cash for the Respondent daily and was
the Transport Manager. He had resigned from respondent's employ but
had been re-employed at the time of his testimony. John told the
court that the smoke box was bought so that drivers could use it to
collect cash due to his
3
busy
schedule. He said he had demonstrated to the drivers including the
Applicant how to use it.
Mr.
Larken could not remember if the Liaison Manager, Justice Nxumalo,
had instructed the drivers to use the box at all times when
collecting money.
John
was positive that all drivers attended the demonstration of the use
of the cash box but could not say for certain if the Applicant had
attended the course under cross examination.
He
denied that he had specifically instructed drivers not to collect
money without the smoke box. He said it would have been Justice
Nxumalo who told them but it was not done in his presence.
He,
himself used a steel trunk to collect money. Each branch had one
connected with a chain to the motor vehicle seat. He could not recall
when the briefcase was bought.
He
said that he did not use Police escort and that drivers collected
money at times before he had resigned.
The
witnesses added that the drivers were not given any special training
to handle robbery situations apart from the use of the smoke box.
Even
at the time of his testimony, the witness said that they did not use
Police escort to collect money.
RW2
was Musawenkosi Jabulani Bhembe. He worked for the respondent at
Siteki. He told the court that on the 30th December, 1996 he was
given a lift by the Applicant at Hluthi branch. He was going to
Mageza. Along the way after Mantambe river, they found a stationary
motor vehicle. There was an old man and a boy there. The old one
requested that they give a lift to the young man to fetch fuel at a
filling station. They dropped the boy at the filling station and
proceeded to Mageza.
He
insisted that the Applicant gave a lift to a young man contrary to
the Applicant's testimony before the court.
4
At
Mageza the Applicant parked the vehicle outside the shop. While he
talked to his co-workers there, two people entered the shop and one
pointed a gun at Wonderboy outside. He ran away and when he returned,
he was told that money was stolen.
RW3
was Justice M. Nxumalo the company Liaison Manager. He told the court
that the Applicant was aware that at the time he could only collect
money in a smoke box and a Police escort. A smoke box, would stain
the money if broken into. That it was part of the driver's duties to
collect money.
He
chaired the disciplinary hearing that found the Applicant guilty. The
Applicant appealed the decision but lost the Appeal.
He
told the court that he learnt that the smoke box was not working at
the material time. He said whoever was to collect the money would
call the Police for escort. He added that Applicant had been escorted
a few times before.
The
Applicant was charged for gross negligence and breach of company
policy.
He
admitted that Applicant's contract of employment did not state that
he would collect money but the employer orally requested driver's to
collect money when John Larken resigned.
E41,867.55
was taken from the car and E10,925.05 was taken from the shop. He
added that between 1994 and 1996, the business had been struck by a
spate of robberies, while they collected cash.
The
gross negligence was in failure to use the smoke box, failure to
arrange Police escort and breach of company policy by giving a lift
to a stranger, while he carried money. This was regardless of the
instructions he had gotten from the Branch Manager Enock because he
was himself aware of the money collection procedure.
RW4,
was Sergeant Mlangeni, a Police Officer based at Hlathikulu. He
arrested Applicant and two others after the robbery.
5
He
interviewed the Applicant. The Applicant told him that he was aware
of the requirement to use Police escort while collecting money but a
Mr. Simelane, a Manager had asked him not to get Police escort
because that would disturb their plan. The Nhlangano Manager, Enock
Mndzebele also agreed with him that since they were lowly paid, they
should steal the shop takings.
The
Applicant told him that the smoke box was working but the branch
manager had asked him not to use it. He personally saw three smoke
boxes and only one had no batteries, the other two were working.
The
Police Officer concluded that the robbery was an inside job.
The
Officer said that the admission was voluntarily given to him by the
Applicant. He recorded a confession with the Hluthi Magistrate.
The
suspects were not prosecuted because the principal perpetrators in
the robbery were not arrested. The money was also not recovered. The
case was then withdrawn.
He
said he administered the normal caution to the Applicant upon the
arrest. He denied he assaulted the Applicant nor did he suffocate him
with rubber tube.
Upon
a careful analysis of the evidence before us, the court has
established that the Applicant collected money from various branches
on the material day without use of a smoke box and with no Police
escort. That at the material time, due to a spate of robberies, it
was a requirement that such Police escort be arranged.
That
on his way to Mageza, he gave a lift to a stranger while he had in
excess of E41,000 in the car in a plastic bag. The court accepts the
evidence of Jabulani Bhembe in this respect. We too accept the
evidence of the Police Officer that he saw three smoke boxes and two
of them were functional.
There
is no reasonable explanation from the Applicant why he violated
company policy by giving a lift to a stranger in the circumstances he
did. His explanation about the failure to use a smoke box is wanting
and same is unacceptable especially because the Applicant was aware
of a spate of robberies that had taken place while cash was being
collected.
6
We
do accept the evidence of Justice Nxumalo that the Applicant was
aware that he could not collect money without the box.
The
circumstances of the robbery are consistent with the admission given
to the Police Officer by the Applicant that the robbery was indeed an
inside job. The Applicant was charged for gross negligence and breach
of company policy and was found guilty. The court finds that there
was reasonable basis to find the Applicant guilty of gross negligence
and disregard of company policy leading to the loss of money on the
material day. The court rejects the evidence of the Applicant that no
disciplinary hearing was held. Disciplinary hearing, and appeal
records were produced as exhibits.
The
Respondent has satisfied the court that the Applicant had committed a
dismissible offence provided under Section 36 of the Employment Act,
and it was just and reasonable to dismiss him taking all the
circumstances of the case into account.
No
order as to costs.
The
Members Agree.
NDERI
NDUMA
JUDGE
PRESIDENT - INDUSTRIAL COURT
7
