IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 68/97
In
the matter between:
MATHEWS
HLANZE APPLICANT
AND
SWAZILAND
DAIRY BOARD RESPONDENT
CORAM
C.
PARKER : JUDGE
R.
C.
M.
BHEMBE :
MEMBER
D.
P.
M.
MANGO : MEMBER
For
the applicant : Mr. S. Sibandze
For
the respondent : Mr. M. Sibandze
In
this matter the applicant seeks relief for unfair termination of his
services by the respondent, and claims compensation therefor, and
also claims severance allowance, notice pay and additional notice
pay. The respondent denies that the termination was unfair. It is the
contention of the respondent that the termination was fair because
the applicant admitted having taken a sum of E864.00 which belonged
to the respondent for his own use instead of surrendering it to the
respondent's cashier. And so the applicant's action amounted to a
dishonest act in terms of section 36 (b) of the Employment Act, 1980
(Act No. 5 of 1980) (Employment Act), and taking into account all the
circumstances of the case it was reasonable to terminate the services
of the applicant. In the premiss, the applicant is not entitled to
the claims he has prayed for.
The
incident that led to the unresolved dispute which this Court is now
called upon to determine took place on 24/25 November 1993. In the
wee hours of 25 November 1993, the applicant who is a
driver-salesperson of the respondent loaded stock unto his truck for
the usual sale to certain of his customers. According to
2
entries
in the sales summary stock book, he took away for sale 160 cases of
emasi. But a check of the stock control sheet revealed that 40 cases
of emasi were missing. According to the evidence of Mr. Gamedze
(RW1), the supervisor of the driver-salespersons in the respondent's
undertaking, all the driver-salespersons' books were checked. The
check revealed that the relevant entries of the applicant's sales
summary and cash slips did not tally. The check was conducted on 26
November 1993. On 29 November RW1 called upon the applicant to
explain the imbalance, ie why 40 more cases of emasi were actually
sold as compared to cases indicated as sold according to the sales
summary. According to RW1, the applicant's response was that he had
no knowledge of the discrepancy.
It
is now not in dispute that the applicant sold 200 cases of emasi, ie
40 cases more than were reflected in his sales summary. It is also
not in dispute that he brought back from selling the stock a surplus
of E864-00, being the price of the 40 cases of emasi. It is equally
not in dispute that the applicant did not declare this surplus to the
cashier as he must do but kept the money on himself.
It
is applicant's embezzlement of the E864.00 which ultimately led to
his dismissal as the respondent considered his action as a dishonest
act.
The
question that we must now determine is: is the termination of the
services of the applicant fair? Thus the Court must decide whether
upon the evidence presented to it, a) the respondent had a valid
reason within the meaning of section 36 (b) of the Employment Act to
terminate the services of the applicant? b) the decision to terminate
met the fair procedure requirement under section 42 (2) (b) of the
Employment Act? and c) whether, taking into account all the
circumstances of the case it was reasonable to terminate the services
of the applicant within the meaning of section 42 (2) of the
Employment Act?
It
is these questions that we must now answer.
From
the totality of evidence presented to us there is not a modicum of
doubt in our minds that the applicant appropriated the E864.00
belonging to the respondent, and he went about it in a very dishonest
way. If the applicant did not have a crooked mind, and was minded to
behave in an honest way, he would have simply handed all the money he
realized from that day's sale to the cashier and indicated on the
sales summary that there had been a surplus of cash from his sales.
As RW1 testified, if he had done that there would have been no
problem.
In
our view, the applicant knew he had taken away for sale 40 more cases
of emasi than were reflected in the sales summary. He knew what he
was doing but in his
3
criminal
mind he was praying that nobody would find it out. He was not honest
with RW1 when he was first asked to explain the discrepancy on 29
November 1993. He was not honest in his answers in Exh 3, which we
find he authored and signed. He appeared to have spoken the truth in
Exh 4. But then his criminal mind had the better of him, and so he
changed his tune in Exh 5, which tune he tried to sell to this Court,
and which we reject as it is a blatant lie.
Because
we find that the applicant appropriated the respondent's money for
his own use and has been untruthful about it, we hold that the
applicant is guilty of a dishonest act, and accordingly in our
judgement the respondent had a valid reason within the meaning of
section 36 (b) of the Employment Act to terminate the services of the
applicant.
We
now pass on to consider the requirement of procedural fairness.
We
will continue to state ad nauseum the six minimum standards which
must be met in order for a hearing to satisfy the requirement of
procedural fairness. They were stated in Christopher H. Dlamini v
Inter Africa Suppliers (Swd) Limited, Industrial Court Case No. 55/97
at p 7. Of course the list is not meant to be numerits clawus. There
we had this to say -
While
we do not expect an employer to handle disciplinary hearings
according to the standards of a court of law (see Grogan, Riekert's
Basic Employment Law. 2nd ed, p 102), we expect that certain basic
procedures must be followed. Among these are: (I) The employer should
advise the employee in advance of the precise charge or charges that
he or she is to meet at the hearing. This requirement is tied up with
the need for adequate preparation. (ii) The employee should be
advised in advance about his right to representation, and the
representative must be a representative of his or her choice, not
imposed by the employer or any other person. (iii) The chairman or
presiding official should be impartial. That is to say he or she must
weigh up the evidence presented before him or her and make an
informed and thought-out decision. There should be no grounds for
suspecting that his or her decision was based on erroneous factors or
considerations. (Iv) The employee must be given ample opportunity to
present his or her case in rebuttal of the charge or charges
preferred against him or her and to challenge the assertions of bis
or her accusers, (v) The employee must be present at the hearing, and
it is essential that everything possible is done to enable him or her
to understand the proceedings, (vi) There should be a right of
appeal, and this should be explained to the employee. (See Grogan,
Ibid., pp 103 -
107.)
With
respect, unlike Mr. M. Sibandze, for the respondent, we do not see
anything wrong in an applicant employee taking "refuge", as
he put it, in the requirement of procedural fairness and gaining
something in the form of an award in this Court even where the
applicant had been dismissed for "substantive misconduct".
The employment law of Swaziland is abundantly clear in its terms
under section 42 (2) of the Employment Act. Thus this Court, which is
a pedant of equity, must insist on a substantial adherence to
procedural fairness in every case, not only dismissal cases. And an
employer who disregards procedural fairness when he decides to
dismiss an employee does so at his own peril.
4
Doubtless,
the breach of procedural fairness goes to the very essence and root
of justice and fairness which are at the very core of Roman-Dutch
common law jurisprudence, (See Devenish, Interpretation of Statutes,
pp 38 - 43.)
Whether
or not dismissed employees are quick to take advantage of such breach
or take "refuge" therein is not the issue. The issue is
that employers (and others) who conduct so-called disciplinary
enquiries in breach of procedural fairness as explained in
Christopher H. Dlamini must also not be allowed to get away with it
or to take "refuge" in the fact that "substantive
misconduct" has been proven. Such employers should also not be
rewarded for such breach.
In
hac casu we have no difficulty in finding that the so-called
disciplinary enquiry conducted by the respondent is replete with
highly prejudicial procedural irregularities. The hearing falls far
short of the standards adumbrated in Christopher H. Dlamini.
The
applicant was not given any notice - formal or otherwise - of the 9
December 1993 hearing or enquiry. It is true that an investigatory
hearing had been conducted on 2 December 1993 (Exh 4) but there is
nothing in Exh 4 to suggest that subsequently the applicant was made
aware that he would attend a disciplinary enquiry or hearing. Exh 4,
Exh 3 and Doc 1 are all investigatory reports which were then studied
by RW3. From the evidence presented to us, we find that it took RW3
barely one hour to study all the relevant documentation on the matter
and take a decision to call the applicant to a disciplinary hearing.
Within barely one hour the applicant had been 'dragged' to a
so-called disciplinary hearing. The applicant had not been informed -
orally or in writing - what charge or charges he faced, despite the
fact that according to RW 2's and RW3's own testimonies he faced a
serious charge of which if he was found guilty he would be dismissed.
Neither
indeed could the respondent had had time to inform the applicant of
the charges since there was barely one hour between the time RW3 took
the decision to conduct a disciplinary hearing and the time the
hearing started.
The
applicant was not informed of his right to representation although he
faced a very serious charge for which he could suffer the ultimate
sanction of dismissal.
The
charge of bias or impartiality on the part of RW2 who took part in
the hearing of 9 December 1993 is real. He was the same person to
whom the chairperson of the 9 December hearing (RW3) recommended a
dismissal. What kind of impartiality could the applicant expect from
RW2 in such a situation? It is an irrefutable and a well-tested
element of the requirement of natural justice and
5
fairness
that one who takes part in the making of a decision that affects the
interests or rights of a person in a forum a quo should not also take
part in the making of the same decision a quern when at the latter
level the decision made a quo is to be reviewed, and accepted or
rejected.
It
has not been shown in this Court by the respondent that the applicant
was informed of his right to appeal. Neither has it been shown that
the applicant was given an opportunity to appeal.
For
the aforegoing, we hold that the respondent has not satisfied the
procedural fairness requirement.
Referring
to a passage in le Roux and van Nierkerk, The South African Law of
Unfair Dismissal, at pp 165, Mr. M. Sibandze submitted that since the
applicant has not suffered any prejudice the hearing should not be
adjudged as unfair. We cannot accept that. The prejudice that the
applicant has suffered is the mere fact that he was denied his right
to a fair hearing and the recommendation of RW3 that he be dismissed
was tainted with bias.
Relying
on Ntsizi v Movenpick Restaurant (1992) 1 LCD 236 (IC) at 237, he
submitted further that the irregularities are not so serious as to
nullify the fairness of the procedure adopted by the respondent. What
we have found to be wrong with the procedure adopted by the
respondent are substantial and serious and not merely technical. In
fact we do not see how Ntsizi can assist the respondent. In our view
the opportunity given to the employee to state his case cannot be
regarded as fair for the findings we have made above.
And
SACCAWU & Another v King Williams Town Fast Food cc t/a Chicken
Lichen (1996 LCD 38 (IC) is distinguishable because there a proper
notice of the enquiry had been given to the employee, and in
addition, the two irregularities complained of at 40 are not present
in the present matter.
We
are not persuaded by the authority in Botha v Italtile Centre (1992)
13 IL J 661. We are rather persuaded by the authority to which Mr. S.
Sibandze, counsel for the applicant, referred us in Thwala v ABC Shoe
Store, quoted in Rycroft and Jordaan, A Guide to South African Labour
Law. 2nd ed, at pp 205-6. The reason is that it is in accord with the
interpretation and application of section 42 (2) of the Employment
Act. In Thwala, the industrial court (of South Africa) in emphasizing
the importance of procedural fairness held that -
6
[N]atural
justice is a process of value in itself. It is an end in its own
right... It is so fundamental in the context of labour relations,
said the court, that it 'should be enforced by [the] court as a
matter of policy, irrespective of the merits of the particular case.'
And,
indeed, the "approach in some earlier decisions, where the
industrial court indicated that lack of procedural fairness does not
by itself entitle the dismissed employee to relief, was thereby
firmly rejected." (See Rycroft and Jordaan, ibid., p 206, and
the cases there cited.)
We
are fortified in our view by the dictum from Administrator, Transvaal
v Zenzeli, quoted in Rycroft and Jordaan, ibid., p 207 -
It
is trite... that the fact that an errant employee may have little or
nothing to urge in his own defence is a factor alien to the inquiry
whether he is entitled to a prior hearing. Wade Administrative Law 6
ed puts the matter thus at 533-4: "Procedural objections are
often raised by unmeritorious parties. Judges may then be tempted to
refuse relief on the ground that a fair hearing could have made no
difference
to the result But in principle it is vital that the procedure and the
merits should be kept strictly apart, since otherwise the merits may
be prejudged unfairly."
From
the passages we have set out above, we have formed the view that the
raison d'etre of procedural fairness is to ensure that the merits of
a case are kept apart from the procedure adopted, and that procedural
fairness should be enforced substantially as a matter of policy,
irrespective of the merits of the particular case.
For
the aforegoing it is our judgement that the respondent has not
satisfied the procedural fairness requirement under section 42 (2)
(b) of the Employment Act.
We
will now decide the last question which is: taking into account all
the circumstances of the case was it reasonable to terminate the
services of the applicant?
In
this regard Mr. S. Sibandze submitted that it was not reasonable to
terminate the services of the applicant because of: a) the long
service of the applicant in the respondent's undertaken; and b) the
fact that though the applicant's misconduct might be serious, that
did not render the continued employee/employer relationship
impossible.
And
for these reasons, he further submitted, the respondent ought to have
meted out a sanction other than dismissal, eg the applicant could
have been suspended or demoted.
Mr.
M. Sibandze, for the respondent, contended contrariwise. For him,
dismissal was the most appropriate sanction because of the
seriousness of the applicant's misconduct, and because of the nature
of the business of the respondent which
7
involves
the sale of stock and cash takings, it would not have been proper and
appropriate to demote the applicant. Neither was suspension an
appropriate alternative sanction.
We
agree with Mr. M. Sibandze that suspension cannot be an appropriate
sanction since the applicant had been found guilty of a dishonest
act.
We
said in Lucas Zwane v Tip Top Holdings, Industrial Court Case No,
77/95 at p 7.
A
factor that may be taken into account by the Court in judging the
reasonableness of the decision to dismiss is a long and unblemished
record of good service. In such a case a written warning would be
just
and
equitable. (See Mhlume Sugar Company v Jabhane James Mbuli, Civil
Appeal No. 1/91 at p 2).
But
we also quickly added there (at the same page), "In our view one
incident of serious and depraved misconduct and misbehaviour, like
that which we found the applicant committed, is capable of cancelling
any hitherto unblemished record of good service." In the present
case the applicant's mandacity and his attitude towards the whole
incident, as well as his lack of remorse should be held against him.
We agree with RW3 and RW2 that what happened was not some forgiveable
shortage for which the applicant would not have been dismissed but
could have been made to pay back the shortage. The E864.00
represented a surplus of cash which the applicant dishonestly
appropriated to his own use.
In
our judgement therefore we are satisfied that it was reasonable to
terminate the services of the applicant, considering all the
circumstances of the case. In the result, it is our conclusion that
the respondent has satisfied the requirement of reasonableness within
the meaning of section 42 (2) (b) of the Employment Act.
From
the aforegoing analysis and conclusions, it is our decision that the
respondent has proved on a balance of probabilities that the
termination of the services of the applicant was fair within the
meaning of para (a) of section 42 (2) and under the requirement of
reasonableness in para (b) of section 42 (2) of the Employment Act.
But the respondent has failed to satisfy the requirement of
procedural fairness in para (b) of section 42 (2) of the Employment
Act. We will accordingly invoke the proviso contained in section 15
(4) of the Industrial Relations Act, 1996 (Act No. 1 of 1996) since
we have found that the applicant's dismissal is unfair by reason of a
procedural defect.
In
Lucas Zwane we made the following conclusions in response to the
applicant's claims for severance allowance and notice pay -
8
Upon
a correct interpretation of section 34 (1) of the Employment Act we
hold that he is not entitled to severance allowance on account of the
fact that the respondent, as we have held, has satisfied the
requirement of section 36, read with section 42 (2) (a), of the
Employment Act. (See Susan Dlamini v President of the Industrial
Court and Melmans Pharmacy (Pty) Ltd, Industrial Court of Appeal Case
No. 13/88 at p 5.)
It
is our view that the same conclusion we have reached above concerning
severance allowance may not be reached in all cases of fair
dismissals under section 36, read with section 42 (2) (a), of the
Employment Act with regard to notice pay (section 33 of the
Employment Act) because the fact that an employer has a valid reason
or "just cause" to dismiss an employee does not ipso facto
mean that he is entitled to dismiss summarily.
But
in the present case, we are of the view that the respondent was
entitled to dismiss the applicant summarily taking into account the
circumstances surrounding the dishonest act which, as we have said,
was calculated and executed with a criminal mind. As Rycroft and
Jordaan, at p 98, ibid, have said, dishonesty justifies summary
dismissal.
In
the result the applicant is not entitled to severance allowance and
notice pay and additional notice pay.
In
determining the quantum of compensation we should award to the
applicant we have applied the proviso in section 15 (4) of the
Industrial Relations Act, 1996 (Act No. 1 of 1996). But we do not
agree with Mr. M. Sibandze that the amount of compensation awarded in
Daniel Matsebula v Swaziland Milling, Case No. 14/97 should be
awarded also in this case. In Matsebula the dishonest act of the
applicant resulted in the respondent losing about E6,000.00. In the
present case the respondent lost only E864.00.
We
now make the following order which in our view is just and fair in
the circumstances -
a) The
respondent shall on or before 14 September 1998 pay to the applicant
as compensation for procedurally unfair termination of the
applicant's services, five month's wages ... E5,803.35
9
b)
There will be no order as to costs. The two Members concur.
DR.
COLLINS PARKER
JUDGE
OF THE INDUSTRIAL COURT
31
August 1998
