IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 18/99
In
the matter between:
JIM
ZULU APPLICANT
and
INYATSI
SUPERFOS RESPONDENT
CORAM:
NDERINDUMA: PRESIDENT
JOSIAH
YENDE: MEMBER
NICHOLAS
MANANA: MEMBER
FOR
APPLICANT: K. DLAMINI
FOR
RESPONDENT: Z. JELE
JUDGEMENT
12/07/02
The
Applicant seeks maximum compensation for unfair dismissal and
terminal benefits emanating thereof. The Application was brought
pursuant to a certificate of unresolved dispute issued by the
Commissioner of Labour in terms of Section 65 (1) of the Industrial
Relations Act No.1 of 1996.
The
claim is premised on the following particulars of claim:
That
the Applicant was employed as a bull dozer operator by the Respondent
in 1995 and was so employed continuously until the 14th March, 1998
when he was unlawfully and unfairly dismissed for negligence while
performing his duties at a construction site.
The
Applicant admits that while he was operating a dozer, he accidentally
ran over and damaged a water pipe which was below the surface.
1
The
applicant alleges that when the site foreman Mr. Peterson arrived at
the scene of the accident, he summarily dismissed him and asked him
to go home immediately. He asked him to come back on Monday, that
followed to the head office to collect his final dues.
Upon
arrival at the head office, the Applicant was served with a
suspension letter annexed to the Application and marked 'B'.
The
letter of suspension states that the Applicant had been charged and
was to appear before a disciplinary tribunal on the 23rd March, 1998.
The
disciplinary hearing was held wherein the issue of the accident was
discussed. The Applicant was given a final warning and was told to
resume work. He was asked to report to a manager at the site.
When
he reported to the site, he was assigned to clean a manager's office
and he declined. He went to report the dispute to the Labour
department.
At
the time of dismissal he said he earned E1,300 per month and was paid
overtime. He was not paid salary for the month of March nor was he
paid terminal benefits upon dismissal. He was 64 years old and had
many grand children who were dependant on him. He had not found
alternative job inspite of his efforts to do so. As a result he had
suffered loss and damage. His age was the greatest impediment to
acquire a new job.
The
Applicant's case was supported by AW2, Amos Masilela who was at the
construction site at the material time. He corroborated the
Applicant's evidence that upon causing the accidental break of the
pipe, the site supervisor, Mr. Peterson asked him to park the dozer
and go home and return on Monday to collect his pay. Mr. Peterson
according to the witness dismissed the Applicant. The witness did not
know what happened subsequently but the Applicant left the site as
instructed.
The
Respondent in its Reply stated that the Applicant earned E1, 154.25
but not E1, 300. Mr. Mbingo denied that the Respondent dismissed the
Applicant at the site or at all but that he was given a final warning
for negligence after a disciplinary hearing. The Applicant according
to Mr. Mbingo failed to return to work after the disciplinary hearing
but was never dismissed.
2
Mr.
Mbingo upon being told by the Applicant that he had been dismissed by
Mr. Peterson, had advised him that Mr. Peterson did not have such
authority and asked him to report to the disciplinary inquiry on the
23rd March, 1998, which he did, After the final warning was given to
him, he was allowed two days off and then report to the site. Mr.
Mbingo told the court that he later on was called to the Labour
office to attend to the dispute reported by the Applicant. He told
the court that he was not in a position to tell the court whether the
Applicant infact reported to the site as instructed and Mr. Peterson
had since left the employ of the Respondent. He only heard at the
Labour office that when the applicant returned to the site he was
instructed to clean a manager's office which he declined. He was told
that there was no more work for him as a dozer operator and he went
to Labour to report the dispute.
Mr.
Mbingo was shown a letter dated 24th March, 1998 written by him to
the Applicant terminating Applicant's service with effect from 22nd
April, 1998 on grounds of redundancy. Mr. Mbingo expressed surprise
at the letter and wondered how the Applicant had received it since he
could not remember dispatching it to him.
The
letter was apparently written one day after the final written warning
was issued to the Applicant on the 23rd March, 1998.
Mr.
Mbingo admitted that he wrote the letter and that Applicant's
position had become redundant but he did not know whether he had been
paid his terminal benefits.
It
would appear to the court that Mr. Mbingo was not candid with the
court on the issue as to whether the Applicant's service was
terminated or not in his evidence in chief. He had conveniently
avoided the letter he had written on the 24th March, 1998 giving the
Applicant notice of termination.
The
evidence of the Applicant to the effect that he had been sent home by
his supervisor Mr. Peterson after the accident and that upon his
resumption of work he was advised that there was no more work for him
as a dozer operator is probably true in the light of the
inconsistencies in the evidence of Mr. Mbingo.
The
Applicant's evidence was well supported by AW2.
3
The
Respondent failed to call Mr. Carmichael, the Applicant's manager nor
Mr. Peterson the supervisor to counter the Applicant's evidence on
what transpired at the site on the day of the accident and upon his
resumption of duty.
The
court finds that the Applicant was dismissed by the Respondent and
that he did not abscond from work.
The
court is satisfied that the Applicant's termination was not fair as
it was not for a reason permitted by Section 36 of the Employment Act
No. 5 of 1980.
Furthermore,
in terms of Section 42 (2) (b) taking into account all the
circumstances of the case, it was not reasonable to terminate the
services of the Applicant because he had merely broken a water pipe
that was underground and according to him, its location was not
properly marked. He also had no previous written warning for poor
work performance that would have warranted a dismissal in terms of
Section 36 (a) of the Act.
The
evidence on the monthly salary the applicant earned is conflicting,
however, it is common cause that he earned E6.75 per hour. A
calculation on a basis of 21 days x 8 hours x E6.75 gives us a figure
of E1, 134.00 per month. This is the monthly figure the court will
apply.
Considering
the period of Service by the Applicant, his age, the loss and
suffering he had undergone as a result of the unlawful termination,
the court awards him eight (8) months salary as compensation for
unfair dismissal in the sum of E9,072.00.
Severance
Allowance E 1,080.00
Additional
Notice E 432.00
Salary
for March E 1,134.00
Notice
Pay E 1,134.00
TOTAL E12,852.00
4
The
Respondent will pay costs of the suit.
The
Members Agree.
NDERI
NDUMA
JUDGE
PRESIDENT - INDUSTRIAL COURT
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