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IN
THE INDUSTRIAL COURT OF APPEAL
The
Central Bank of Swaziland
vs
Memory
Matiwane
Case
No. 110/1993
Coram SAPIRE,
JP; MATSEBULA, J A;
MAPHALALA,
J
A
For
Appellant P.E. Flynn
For
Defendant T.A. Simelane
Judgment
(01/07/98)
The
Respondent who was the Applicant in the Court a quo sought
compensation for unfair dismissal. Respondent was previously an
employee of the appellant but had been dismissed after a domestic
enquiry, on the grounds of misconduct. The appellant applied for
relief in the Court a quo on the grounds that the enquiry into his
alleged misconduct was unfair, and that evidence placed before the
tribunal did not justify his dismissal.
The
Industrial Court found that this was indeed so, and that it had not
been established before the disciplinary hearing that any misconduct
on the part of the appellant had taken place, justifying his
dismissal.. Accordingly it found that the Respondent was entitled by
way of compensation to be paid 11 months salary in the sum of E25
663.
In
the Industrial Court the appellant had been able to lead the evidence
of a further witness who did not testify before the disciplinary
hearing.. This witness, worked at the Mbabane
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Government
Hospital at the material time. He confirms that the receipts, the
discrepancies in which were the basis of the Appellant's charge of
dishonesty against the Respondent, in the amounts of E2.50 and E100
were in his handwriting and signed by him. He said that he had been
approached by the respondent to issue a receipt of E100.00 whereas
only a sum of E2.50 was paid by him. He went on to say that this was
to be used by the respondent to claim reimbursement from the
respondent's medical scheme. This witness was not available to give
evidence before the disciplinary hearing but was only approached by
someone from the appellant late in 1994 or early 1995 concerning the
receipts.
The
President of the Industrial Court observed that it was a task of his
Court to evaluate the evidence which was placed before the
Disciplinary hearing and concluded as the two witnesses who I will
refer to as DW2 & DW3 did not testify before the disciplinary
hearing that evidence could not be taken into account by the
Industrial Court in its assessment of the situation He observed that.
"......
the evidence of DW2 would have a fatal blow on the applicant's case
on the charge of
fabricating
and falsifying a document".
The
judgment also indicates that because the judge found that there was
no evidence before the disciplinary hearing on which it could rely on
to properly arrive at the finding that the applicant (respondent) was
guilty of dishonesty, the Appellant t had failed to discharge the
onus resting on it to demonstrate that the dismissal was fair. The
Court therefore found that the respondent (now appellant) unfairly
terminated the services of the applicant without cause.
This
indicates a grave misdirection of the court a quo. The court a quo
does not sit as a court of appeal to decide whether or not a
disciplinary hearing came to a correct finding on the evidence before
it. It is the duty of the Industrial Court to enquire on the evidence
placed before it, as to whether the provisions of the Industrial
Relations Act and the Employment Act have been complied with, and to
make a fair award having regard to all the circumstances of the case.
Even if the court were to find that the dismissal was unfair because
of some technical defect in the application of procedures prescribed,
before an award or compensation were to be made all the circumstances
of the case are to be investigated.
See
section 36 of Employment Amendment Act 1997 and the proviso to
section 15(4) of the Industrial Relations Act of 1996.
This
is the substance of the point of law on which the Appellant has come
to this court.
The
misdirection of the court a quo has led to this anomalous situation
that an employee who
is
proved to have been guilty of dishonesty is to be found to have been
unfairly dismissed and
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compensated
for his misdeeds notwithstanding that there was evidence before the
Industrial Court, if not the disciplinary enquiry, that the
Respondent was guilty of the dishonesty which was one of the grounds
for his dismissal. This does not accord with anyone's ideas of
fairness and is not what was intended by the act.
The
provisions of the act require the industrial court to take into
account all the circumstances of the case in deciding whether there
has been an unfair dismissal in the first place and secondly where
such unfair dismissal arises from a defect in the procedures, the
court is obliged to enquire whether in all the circumstances of the
case are such that the employee is entitled to compensation at all
and if so in what amount. By excluding the evidence of DW2 from its
consideration, important circumstances have not been taken into
account, and the court precluded itself from coming to a proper
decision.
The
question now arises as to whether the case ought to be remitted to
the court a quo to reconsider the matter taking into account the
evidence it excluded? This we consider to be both impracticable and
unnecessary as the judgement clearly indicates that the excluded
evidence would have been fatal to the Respondent's case.
It
follows that the appeal must succeed on the point of law raised and
the decision of the court a quo be set aside.
SAPIRE,
J
P
MATSEBULA.
J
A
MAPHALALA,
J
A
