IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 310/2000
In
the matter between:
ISAAC
MATSENJWA LICANT
and
U.
S. A DISTILLERS (PTY) LTD SPONDENT
CORAM:
NDERI
NDUMA: PRESIDENT
JOSIAH
YENDE: MEMBER
NICHOLAS
MANANA: MEMBER
FOR
APPLICANT: R. MAMOGOBO
FOR
RESPONDENT: K. MOTSA
JUDGEMENT
24/07/02
The
Applicant seeks unconditional reinstatement and alternatively payment
of a total sum of E29,920.97 as compensation for unfair dismissal.
The application for unresolved dispute was brought in terms of
Section 65 (1) of the Industrial Relations Act No. 1 of 1996.
Conciliation of the dispute had failed and the Commissioner of Labour
issued a certificate of unresolved dispute.
The
Applicant's case in a nutshell is that he was employed in July 1998
as a builder by the Respondent company, USA Distillers (Pty) Ltd. It
is common cause that at the time of dismissal the Applicant earned
E587.13 per fortnight and that he had served for 1 year and 7 months.
It
is not in dispute that the Respondent was in its formative stage in
that it was constructing its distilling premises and that the
employees that existed were engaged for that purpose. There was an
option however to continue.
1
It
is also not disputed that the employees were aware of a company
policy to disallow drinking at the work place.
The
Applicant's case is that on the material date he got permission to
attend hospital as he suffered a headache. That he proceeded home
first to get some money and then on his way to hospital passed
through Riverside Motel to buy a drink to quench thirst. It is common
cause that he bought a beer from the bar at the motel and that he was
found at the motel by the director after he had bought the beer.
What
is in dispute is whether Mr. Louis Borragerio the company director
found him seated at the bar drinking or outside the bar whilst the
Applicant was carrying the can of beer.
The
Applicant insists that the latter version is true while the director
told the court that he found the Applicant seated and sipping his
beer.
It
is also not in dispute that once an employee was given permission to
attend hospital, he was deemed to be at work, unless and until he was
given days off by the doctor depending on his condition.
At
the time when the Applicant was found in possession of beer, he had
not visited the clinic but told the court that he was on his way
there.
Mr.
Borragerio told the court that he was in the company of the chairman
of the Respondent at about 12.30p.m. on the material day when they
found the Applicant sipping beer seated on a stool at the Riverside
Motel. They had gone for lunch there.
Mr.
Borragerio said he was very embarrassed by the incident and he
reported it to Mr. Constantino who was the head of the building
department. He later on signed the letter dismissing the Applicant.
Upon
a careful analysis of the facts of the case, the Respondent has
established on a balance of probabilities that the Applicant had
committed a dishonest act in that he had sought permission to attend
clinic but instead was found drinking beer at the Riverside Motel at
about 12.30p.m.
2
That
this was a dismissible offence in terms of Section 36 (b) of the
Employment Act.
The
Applicant admitted that he had bought beer to quench his thirst
whereas he was supposed to be attending hospital. It was immaterial
whether he had opened the beer can or not but the intention was
manifest.
He
was deemed to be at work unless he was given a sick off by the
doctor.
In
view of the fact that he was caught red handed as it were, and that
he had admitted the offence, it was not necessary to hold a hearing
in the circumstances.
The
Applicant infact did not attend hospital on the material day but did
so on the following day according to a medical card he produced
before court.
The
Respondent has satisfied the requirements of Section 42 (2) (a) and
(b) in that it has shown that it dismissed the Applicant for a reason
permitted by Section 36 (b) of the Act and that it was reasonable
taking all the circumstances of the case to dismiss him.
There
will be no order as to cost.
The
Members Agree.
NDERI
NDUMA
JUDGE
PRESIDENT - INDUSTRIAL COURT
3
