IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 208/2002
In
the matter between:
BRUCE
KHUNYA APPLICANT
and
NATEX
2000 LIMITED RESPONDENT
CORAM:
NDERINDUMA: PRESIDENT
JOSIAH
YENDE: MEMBER
NICHOLAS
MANANA: MEMBER
FOR
APPLICANT: D.MSIBI
FOR
RESPONDENT: M.SIBANDZE
JUDGEMENT
17/07/02
This
Application was lodged pursuant to a fall report issued by the office
of the Commissioner of Labour in terms of Section 41 (3) of the
Employment Act No. 5 of 1980.
The
Applicant reported a dispute after he was dismissed by the Respondent
on the 17th November, 1998 for allegedly committing a dishonest act
in the course of his employment in that on the 16th November 1998, he
removed fabric from the office of the Respondent's security officer,
Mr. Moses Mathabela. That at the time of such removal the Applicant
knew that the material constituted exhibits in a charge of theft
against co-workers (2 ladies) who the Applicant was due to represent
before a disciplinary tribunal on the same day.
1
The
Applicant alleges that on the material day, at about 8 a.m. in the
morning he had visited Mr. Mathabela's office and requested that he
be allowed to measure the exhibits to help him in mitigating the case
of the two ladies. That Mr. Moses Mathabela had agreed to the request
but was apprehensive that Mr. Smith the Human Resource Manager, would
not be happy if he found out that he had assisted the Applicant as
per the request.
The
Applicant made arrangements with the inspection supervisor Mr. James
Masondo to measure the fabric from the flat table situate in the
inspection section. That Moses Mathabela had promised to let him know
when they could both go for the taking of the measurement.
The
Applicant narrated how he received a call from one Junior Vilakati
who informed him that Moses had asked the Applicant to go and collect
the fabric for measurement from his office and that he would find him
at the inspection section.
He
collected the fabric and put it in a black waste bag he had gotten
from the inspection department and while he was on his way to the
inspection section he met Mr. Smith who demanded that he showed him
what was in the bag.
He
explained to Mr. Smith the arrangement he had made with Mr. Mathabela
to measure the fabric at the inspection department. Himself and Mr.
Smith proceeded to the inspection section but did not find Moses. Mr.
Smith told the court that he got suspicious because Moses was not
there and when he called him, Moses denied having seen the Applicant
that morning.
Mr.
Smith further told the court that the Applicant was reluctant to show
him what was in the bag until he demanded, as a senior manager to
inspect the contents of the bag.
The
Applicant told the court that Moses Mathabela denied their earlier
arrangement because he was afraid of Mr. Smith.
He
told the court that he had no intention to destroy the fabric and he
truly believed he had permission to take it for measurement as per
earlier arrangement.
2
The
Applicant was aware that Mr. Smith was not happy that he being a
customer service supervisor, and therefore a staff member was
involved in representation of unionized employees.
The
Applicant explained that he had used the plastic bag as he did not
want to draw the attention of fellow employees to what he was
carrying.
At
the disciplinary tribunal and before court, Mr. Mathabela admitted
that the Applicant had gone to his office that morning.
At
3.30p.m. in the afternoon, the Applicant was suspended from work
pending investigation of the case against him of tampering with
exhibits. The following day, he appeared before the disciplinary
tribunal chaired by Mr. B. Bharate. The particular charge was as
follows "committing a dishonest act by removing physical
evidence of theft from the security office without permission."
The
Applicant made an explanation similar to that he gave the court.
Junior was called as a witness and he told the tribunal that he had
called the Applicant informing him that Mr. Mathabela had requested
that the Applicant should take the fabric to the inspection section
for measurement.
Junior
had been given the message by one Vusi Grama who Mathabela had
personally spoken to. Vusi Gama corroborated the evidence of the
Applicant and that of Junior Vilakati before the tribunal.
The
two witnesses were however not called to testify before court for
reasons not clear to the court.
At
the tribunal, Moses Mathabela denied giving such instructions to
Junior Vilakati. James Masondo also testified before the tribunal and
he confirmed that the Applicant had requested to use a table in the
inspection section to measure the exhibits. That the Applicant had
made the request between 08.15 and 08.30 am in the morning. This
corroborates fully the version of the Applicant.
The
record of the disciplinary hearing was submitted as exhibit 'A1'.
3
In
court, James Smith testified as RW1 for the Respondent. He was the
Human Resource Manager, He said on the 16th November, 1998 while he
went to the toilet he saw the Applicant going to the security office
holding a black bag. He was curious and decided to hold on and see
what was going on. The Applicant came out with the bag but this time,
it looked like there were things in it.
He
confronted him and demanded that he showed him the contents of the
bag. The Applicant was initially reluctant but he eventually yielded.
Mr. Smith took the bag. The Applicant explained to him that he wanted
to measure the exhibits and that he had made such arrangements with
Mr. Mathabela the security officer who he expected to be waiting for
him at the inspection section. The two proceeded to the inspection
section but Mr. Mathabela was not there.
Mr.
Smith was suspicious and when he enquired from Mr. Mathabela, he
denied such arrangement with the Applicant. Mr. Smith told the court
he believed Mr. Mathabela because he was an ex Police Officer.
Mr.
Smith had testified against the Applicant at the disciplinary hearing
and when the tribunal dismissed the Applicant and he appealed against
the decision, the appeal was heard by Mr. Smith who confirmed the
decision to dismiss the Applicant.
The
issues that arise for determination are as follows:
1. whether
the Applicant in terms of Section 42 (2) (a) was dismissed for a
reason permitted by Section 36 of the Employment Act.
2. whether
in terms of Section 42 (2) (b), it was just and reasonable taking all
the circumstances of the case to dismiss the Applicant.
3. whether
the version told by Mr. Mathabela which is mutually destructive with
that told by the Applicant is reasonably, probably true.
4. whether
the failure to call Junior Vilakati and Vusi Gama rendered
Applicant's evidence hearsay and therefore in admissible.
In
answer to the first issue, the question to be asked is whether the
Respondent has proved on a balance of probabilities that the
Applicant had
4
committed
a fraudulent act by removing the fabric from Mr. Mathabela's office.
It
is common cause that the Applicant committed the actus rheus but what
is in question is the Applicant's intention or purpose of removing
the fabric.
To
determine whether the Applicant had any dishonest intention in doing
so, the court has to evaluate his explanation, determine his
credibility and seek corroboration of the explanation if any.
The
onus is on the Respondent to prove that his intention was dishonest
whereas the burden of the Applicant is that of rebuttal and is less
onerous.
The
crucial evidence is that of Mr. Mathabela to the effect that he had
not made any arrangements at all with the Applicant to collect the
fabric for measurement in the inspection section. This evidence was
countered by that of the Applicant that he had visited Mr. Mathabela
first thing in the morning to make the arrangement. That he had
proceeded to the inspection section and made further arrangements
with Mr. James Masondo to allow him to use the flat table for
measurement.
Mr.
Smith's evidence does not in any way corroborate the evidence of Mr.
Mathabela on the issue as to whether Mr. Mathabela had made any
arrangement with the Applicant.
Since
no other witnesses were called to testify on the issue, the court
looked for corroborative evidence from the exhibit 'Al' which
comprised the minutes of the disciplinary hearing.
The
Applicant's narration to the disciplinary tribunal was consistent
with his evidence in court. More importantly, James Masondo told the
tribunal that indeed on the material day, the Applicant had told him
that he was the representative of two lady employees at a
disciplinary hearing and sought permission to use the flat table in
his section to measure the exhibits.
This
witness was not called to testify before court by either party but
his evidence before the disciplinary hearing clearly indicated what
the intention of the Applicant was that morning. The Respondent did
not seem to doubt that such arrangement had infact occurred between
Mr. Masondo and the Applicant.
5
This
evidence was also consistent with that of the Applicant in court
regarding the arrangement he had made that morning and his actual
intention for doing so.
The
Applicant's evidence is more probably true as compared to the
uncorroborated evidence of Mr. Mathabela.
What
makes Mathabela's evidence suspect even more is the fact that he
admits meeting the Applicant that morning, but from exhibit 'Al' at
page 3, Mr. Smith told the tribunal that when he called Mr. Mathabela
to enquire whether he had permitted the Applicant to take the fabric
from his office, he had told Mr. Smith that he had not seen him at
all that morning.
The
evidence of the Applicant that Mr, Mathabela permitted him to take
the fabric but did not want Mr. Smith to know about it, probably
explains the reaction of Mr. Mathabela when the Applicant was caught
taking the fabric away. That the Applicant immediately explained his
mission to Mr. Smith which explanation found support from Mr. Masondo
makes it more probable in the circumstances.
It
turned out from Mr. Smith's evidence that indeed Mr. Mathabela had
discussed the case with him that morning and they were both aware
that the Applicant was the representative of the accused ladies.
The
fact that the Applicant was a long serving senior employee should
have after the explanation he gave to Mr. Smith put his suspicions to
rest, but it did not happen.
The
Respondent has failed to establish in the light of the foregoing that
the Applicant committed any dishonest act. It follows that the
Applicant was not dismissed for a reason permitted by Section 36 of
the Employment Act as he was merely preparing his defence in a matter
he was to conduct for the ladies that morning.
The
Applicant's case would no doubt have been fortified by the evidence
of Junior Vilakati and Vusi Gama but the two were not called. The
Applicant however produced exhibit 'Al' which shows that at the
disciplinary hearing, the two corroborated his case in that they told
the tribunal that Moses Mathabela had sent Junior who in turn had
left a message with Gama to
6
convey
to the Applicant to go and collect the fabric for measurement as per
their earlier arrangement. The record is part of the evidence this
court has taken into account in accepting the version of the
Applicant as opposed to that of Mr. Mathabela which remains
uncorroborated and was not corroborated even at the disciplinary
hearing.
The
Respondent in addition committed procedural irregularity in allowing
Mr. Smith to hear and determine the Applicant's appeal against
dismissal, fully knowing that Mr. Smith was the person who arrested
the Applicant, had reported the complaint and had testified at the
initial hearing against the Applicant. This is a classical case of a
person who was actively involved in the prosecution of the Applicant,
later on becoming a judge of his fate at the most crucial moment of
an appeal hearing.
A
fair hearing is an essential ingredient in the employers discharge of
his burden in terms of Section 42 (2) (a) and (b) of the Employment
Act No, 5 of 1980.
Whereas
it is generally accepted that employers cannot be expected to
constitute perfect courts at the work place, whatever procedure is
followed to determine whether an offence has been committed by an
employee, and if so, what penalty should be meted out, must have a
modicum of fairness and reasonable independence where circumstances
allow.
In
the South African case of National Union of Mine Workers v Amcoal
Collieries Ltd t/a New Denmark Collieries (1989) 10 ILJ 73 (IC).
Following the decision in National Union of Mine Workers &
Another v Rand Mines Milling Co Ltd (1980) 7 ILJ 765 (IC).
The
court stated that except in very small businesses where an internal
appeal would be a farce because everyone in the firm was involved in
the disciplinary inquiry, it is desirable that the employee should be
able to appeal against the initial decision to a more senior member
of management who was not engaged in the founding incident or in the
initial inquiry.
The
employee, can, of course, waive his right of appeal. Where he chooses
to exercise it, however, the employer is bound to comply. The
Presiding Officer should not have been in any way involved in the
initial hearing.
7
Appeals
at the workplace, unlike those in courts of law ought not to be
confined to the record. Often, no records, exist, but should be
conducted in a more flexible manner. Where no record exists, an
appeal should be treated as a hearing denovo. Where there is a
record, however, the employee must be given access to it. See
Robbertze v Matthew Rustenburg Retinens (Wadeville) (Edms) BPK (1986)
7 ILJ 64 (IC).
In
the case of the Applicant, the Respondent had other senior officers
who were not involved in the case, at the investigative stage or at
the initial hearing. Common sense dictates that such officers
especially the Managing Director should have heard the Applicant's
appeal. Mr. Smith was a material witness at the disciplinary hearing
stage and was heavily biased to determine the Applicant's case
objectively.
In
the result, the dismissal of the Applicant was both substantively and
procedurally flawed. The Applicant's application succeeds
accordingly.
In
determining the award to grant the Applicant, the court considers
that he was 41 years old with 3 children and had worked for the
Respondent as a customer service supervisor for a continuous period
of nine (9) years. He had no previous or current record of misconduct
at the time of dismissal. He earned a monthly salary of E4,169.00 at
the time of the dismissal. He remained unemployed until March 2002
when he was re-employed by a sister company of the Respondent at a
lesser salary of E3,500 per month. He was still employed at the time
of the trial.
Taking
these factors into consideration, the court awards the Applicant six
months salary as compensation for unfair dismissal in the sum of
E4,169.00
x
6 E25,014.00
Notice
Pay E 4,169.00
Additional
Notice E 6,048.00
Severance
Allowance E15,120.00
TOTAL E50.351.00
8
The
Respondent will pay costs of the Application.
The
Members Agree.
NDERI
NDUMA
JUDGE
PRESIDENT - INDUSTRIAL COURT
9
