IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 277/2000
In
the matter between:
ABRAHAM
SILOLO APPLICANT
and
P.
S. WOODWORK (PTY) LTD RESPONDENT
CORAM:
NDERINDUMA: PRESIDENT
JOSIAH
YENDE: MEMBER
NICHOLAS
MANANA: MEMBER
FOR
APPLICANT: S.SHONGWE
FOR
RESPONDENT: J. WARING
JUDGEMENT
09/08/02
The
Applicant was employed by the Respondent as a junior carpenter
earning a gross salary of E677.00 a month.
He
was in continuous employment until the 7th November, 1997 when his
services were terminated summarily for allegedly using physical
violence against a fellow worker by the name of Abraham Mndzebele on
the 6th November, 1997.
According
to Mrs, Tina Nino Jongenes, a director of the Respondent, at about
10.a.m. in the morning of 6th November 1997, Mr. Mndzebele came to
her office bleeding on the face. He reported that he had been hit
with a fist by the Applicant, blood was streaming from his nose.
At
the time Mrs. Jongenes' daughter, a brain surgeon by profession was
at home on holiday and she called upon her to examine Mndzebele. The
doctor was not available to testify about her findings neither did
she prepare
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a
report stating the condition of Mndzebele. The court therefore
regards statements by Nino on what she was informed by her daughter
as hearsay evidence.
Nino
however told the court that she called upon the applicant to her
office and he admitted that he had hit Mndzebele because Mndzebele
had insulted him. At that point in time, her husband was away and so
was the other director of the company. She told the court that she
was the only lady at the premises and was afraid and therefore she
telephoned the co-director in Cape Town and her husband who was in
Holland and they both advised her to summarily dismiss the Applicant,
which she did. She informed the Works Council of the decision to
dismiss the Applicant.
According
to the disciplinary procedure of the Respondent which Mrs. Nino
admitted she was familiar with, Clause 1.4 thereof states that "no
worker shall be dismissed without an inquiry". She told the
court that in this case, there was no need for an inquiry because the
fight was in full view of the other workers and none of them was
willing to testify. She did not witness the fight herself.
She
did not have opportunity to evaluate the full circumstances that led
to the fight especially the nature of provocation the Applicant had
received from Mndzebele.
The
Applicant told the court that Mndzebele accosted him while he was
dressing timber with a plank and threatened to assault him. He had
continued to push him with a plank when he got hold of it and in the
process it hit his face. He denied that he had fisted Mndzebele as
alleged by Nino. Mndzebele was a driver and the only reason he
confronted him with a plank was because he alleged the Applicant had
proposed love to his girlfriend, a lady who had been newly employed
at the workplace.
The
Applicant was 32 years old and was married. He had not obtained
alternative employment and had suffered loss and damage.
He
denied that he had taunted Mndzebele over a burn he had received and
accused him of using 'muti' to get the new lady employee, Nonhlanhla,
He
also denied that he was the aggressor on the material day.
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Ceasar
Mabuza testified in support of the Applicant and told the court that
he saw Mndzebele with a plank. At the time the Applicant was busy
slotting planks into a machine. He did not see the Applicant assault
Mndzebele but he heard about it later. The applicant was subsequently
dismissed for the alleged assault.
On
the other hand, Vusi Nzima, a worker who testified for the Respondent
told the court that the Applicant and Mndzebele had a quarrel over a
lady named Nonhlanhla. They taunted each other to the effect that
they were using 'muti to win the girl.
The
two employees fought in the morning while the workers were dressing.
He did not see who was the aggressor. He separated them and as a
supervisor attempted to resolve the problem to avoid Nino's attention
being drawn to it. Mndzebele was injured on the face and was
bleeding.
Mndzebele
himself told the court that the Applicant had approached him and held
him by the collar threatening to assault him for allegedly spreading
gossip about the Applicant.
The
Applicant did not hit him then but the two met in the workshop near
his work station and he threatened to assault him again. He invited
the Applicant to fight him out of the work place to avoid being
dismissed and at that point, the Applicant fisted him on the face.
The
co-employees tried to resolve the matter but unfortunately Nino
learnt about it, since Mndzebele could not drive. Both were called to
Nino's office where he was attended to by Nino's daughter. He denied
carrying a plank to attack the Applicant.
The
version by the Applicant and that by Mndzebele as to who was the
aggressor is mutually destructive. None of the witnesses for the
Respondent know who was the aggressor but AW1 supported the
Applicant's case that Mndzebele had confronted the Applicant with a
plank.
According
to the Respondent's regulations, it was a dismissible offence to
fight at the work place. It is however lawful in terms of the law of
the land to defend one self using reasonable force if attacked by
another person in circumstances where one's life and limb is placed
in danger.
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Nino
did not conduct an inquiry to establish if justifiable reason existed
for the assault on Mndzebele. In the least this would have served as
mitigation to enable her determine if the penalty deserved was
dismissal or not. She was bound by the disciplinary code to conduct
such an inquiry but she had failed.
In
the circumstances of the case, though violence against a co-worker is
an offence for which dismissal is permitted by Section 36 of the Act,
the Respondent has been unable to satisfy the court that the penalty
of dismissal was fair and reasonable taking all the circumstances of
the case into account. The dismissal was thus a result of a
procedural irregularity in that the employer did not conduct a
hearing to satisfy the requirements of Section 42 (2) (b) of the
Employment Act No. 5 of 1980.
In
the result, taking into account the period served by the applicant,
his age, the reason for the dismissal, the loss and damage he had
suffered as a result of the unprocedural dismissal, the court awards
him six (6) months salary as compensation for unfair dismissal.
Since
the dismissal was only, procedurally unfair, the Applicant is not
entitled to payment of severance allowance but will receive notice
pay of E677.00 and additional notice in the sum of E649.92.
It
is ordered that the Respondent pays a sum of E4,062.00 as
compensation. Total sum payable is E5,388.92.
The
Respondent will further pay costs of the Application.
The
Members Agree.
NDERI
NDUMA
JUDGE
PRESIDENT - INDUSTRIAL COURT
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