IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 293/2006
In the matter between:
JAMES NCONGWANE APPLICANT
And
SWAZILAND WATER SERVICES CORPORATION RESPONDENT
CORAM:
N. NKONYANE :JUDGE
A. NKAMBULE : MEMBER
G. NDZINISA : MEMBER
FOR APPLICANT : MR. A. LUKHELE
FOR RESPONDENT : ADV. P. FLYNN
Instructed by
Sibusiso B. Shongwe
& Associates
[1] The applicant was employed by the Respondent on 19th December 1975, and was in continuous employment by the Respondent until 16th February 2006 when he was dismissed after he had been found guilty of “gross misconduct alternatively dishonesty”. The Applicant was of the view that his dismissal by the Respondent was unfair and he reported a dispute with CMAC. The dispute could not be resolved and the Applicant thus filed the present application for determination of an unresolved dispute in terms of Section 85 (2) of the Industrial Relations Act, 2000 as amended.
[2] The Respondent in its Reply denied that the Applicant’s service was unfairly terminated. The Respondent averred that the Applicant’s service was terminated in terms of Section 36 of the Employment Act of 1980 after a duly conducted disciplinary hearing and appeal.
[3] The evidence led in court revealed that at the time of his dismissal the Applicant was holding the position of Regional Manager for Lubombo Region. The Applicant was stationed at Siteki and had his home in Mbabane. The Applicant would travel to Mbabane every weekend to be with his family. The Applicant as Regional Manager was entitled to travel 2,500 km free use. After his motor vehicle had clocked 2,500 km the Applicant was entitled to file a claim at the end of the month. The Applicant had unlimited use of the motor vehicle. As proof that the Applicant had travelled over 2,500 km, he filled a log sheet showing the destinations and the mileage covered.
[4] In August 2005, the Applicant as usual submitted his claim as he had exceeded the 2,500 km. The Operations Director, Mr. Ike Herbst, to whom the Applicant reported noted an anomaly in the log sheet filled by the Applicant as he had made an entry that he had travelled to Tikhuba on 24th August 2004, when on that date the Applicant did not use his motor vehicle to travel to Tikhuba, but travelled together with Ike Herbst, Mary Vilakati and the Respondent’s Managing Director Mr. Peter Bhembe. The Applicant was investigated and thereafter invited to appear before a disciplinary hearing on Tuesday 11th October 2005. The Applicant was facing five charges as follows:-
“You are charged with gross misconduct alternatively dishonesty in that:
1. The claims you raised reflected excessive mileage in some instances not corresponding with the radial distances traveled between towns, thus intending to unlawfully gain at the Corporation’s expense.
2. The claim you raised for August 2005 reflected a trip to Tikhuba on the 24th August 2005, and yet you did not use your vehicle to travel, thus intending to unlawfully gain at the expense of the Corporation.
3. The claim you raised reflected a trip to Tikhuba on 24th August 2005 an area that is outside our area of supply and you had no authority to travel to the aforementioned destination thus intending to unlawfully gain at the Corporation’s expense.
4. You raised claims for Saturdays and Sundays traveling to areas outside of your area of responsibility, thus resulting in dishonest travel claims.
5. You did not adhere to the motor vehicle log book policy of the Corporation as specified in 9.5.1 of the Transport Policy, thus resulting in dishonest travel claims.”
[5] The Applicant was found not guilty on count 5. He was therefore dismissed on account of being found guilty on counts 1-4. Before the court the burden of proof that the Applicant committed gross misconduct and alternatively dishonesty rested on the Respondent in terms of Section 42 (2) of the Employment Act, 1980 as amended. It was not in dispute that the Applicant was dismissed by the Respondent and that he was an employee to whom Section 35 of the Employment Act applied.
[6] The main argument by the Respondent that the Applicant committed gross misconduct or dishonesty was that he inflated the mileage because he wanted to exceed the allowed or free mileage of 2,500 km so that he could file a claim with the Respondent. Before the disciplinary hearing the chairman did not accept the explanations offered by the Applicant for the excessive mileage. The court is however not sitting as an appeal or review forum. The court makes its findings based on the evidence led before it.
[7] Before the court the evidence revealed the following;
7.1 The Respondent’s policy regarding travel claims by Regional Managers was open ended. The Applicant had unlimited use of the motor vehicle. The Applicant had unlimited use of the motor vehicle for both official and private use.
7.2 The evidence that the Applicant worked on weekends was not disputed.
7.3 The evidence by the Applicant that he did not have a specific knock-off time was not disputed.
7.4 During August 2005 he was also Acting Regional Manager for Manzini.
7.5 The claims were approved by his superior before being presented for payment.
7.6 The Applicant explained how he made an entry that he had travelled to Tikhuba on 24th August 2005. He said he received a call from his superior at the headquarters at Ezulwini on 23rd August 2005 that the Applicant should prepare to travel to Tikhuba on 24th August 2005 together with the Financial Manager. The Applicant said in the morning of 24th August 2005 at about 07.00 a.m. he accordingly filled the log sheet. He said the superiors from the Headquarters, being Ike Herbst, the Managing Director Peter Bhembe and the Financial Manager Mary Vilakati arrived at Siteki at about 10:00 a.m. They were traveling in a twin cab, and they instructed the Applicant to travel together with them and leave his motor vehicle. On their return from Tikhuba the Applicant said he forgot to make an alteration on the log sheet and proceeded to drive to Manzini on official duties as he was also the Acting Regional Manager for Manzini. It was not shown during cross examination that this explanation was false or incredible.
7.7 The Applicant told the court that he did not travel on a straight course, but made detours to attend to other substations of the Respondent. For example, he said he would enter in the log sheet that he was traveling to Manzini but would find along the way duty would require that he should also go to Nhlambeni. He also said he had to cover far flung places like Lavumisa. The Respondent failed to bring evidence to disprove the Applicant’s claims that he visited those substations. The Respondent could disprove that evidence by simply calling the officers who were based at the substations to come to court and say that the Applicant never came to the substations. The Respondent failed to do that. The evidence of the Applicant therefore remains unchallenged in that respect.
7.8 Although the Applicant’s log sheets sometimes showed very high mileage, there was no evidence that the speedometer was interfered with. So whether the mileage was “unreasonably high” as the Respondent claimed, there was no evidence that the speedometer readings were false. The Applicant did travel the distance recorded in the log sheets.
[8] On behalf of the Respondent it was also argued that the dishonesty consisted in the Applicantclaiming or receiving money that was not due to him. The court was referred to “South African Law of unfair dismissal” by P.A. K Le Roux and A. Van Niekerk at p. 131 where the learned authors state that;
“Dishonest conduct by definition implies an element of intent. It is necessary, therefore to demonstrate some deception on the part of the employee which may assume a positive form for example by making a false statement or representation ….”
On page 132 the learned authors referred to the case of ACTWUSA V. J.M. Jacobson (Pty) Ltd (1990) 11 ILJ 107 (IC) for the proposition that knowingly receiving wages that are not due has been held to be a fair reason for dismissal.
[9] As already pointed out in paragraph 7 supra, there was no evidence placed before the court that the Applicant made any false statement or representation. He simply recorded the distance that he traveled. As to where he was going to is not an issue as he had unlimited use of the motor vehicle. Further, as already pointed out, there was no evidence led to show that the Applicant did not in fact, go to the places that he said he went to in the course of executing his duties. A misconduct or dishonesty would in the circumstances of this case have occurred if the Applicant was found to have falsified the figures and also shown that he never in fact went to the Respondent’s substations that he said he went to.
[10] Taking into account all the evidence before the court and also all the circumstances of the case, the court comes to the conclusion that the dismissal of the Applicant was unreasonable taking into account he had the authority to travel with the motor vehicle for both official and private purposes, and there was no evidence that the figures that he wrote in the log sheets where false or that he did not travel to the places that he said he traveled to. Accordingly, the dismissal of the Applicant was unfair.
[11] Procedurally, the Applicant was formally charged and found guilty by the chairman of the disciplinary hearing. He appealed to the Managing Director and his appeal was dismissed. The dismissal of the Applicant was therefore procedurally fair as a fair procedure was followed by the Respondent.
[12] Relief:-
The Applicant had a clean record of service to the Respondent. That he executed his duties successfully is also clear from the fact that whilst he was the Regional Manager for the Eastern Region, the Respondent found it fit to also appoint him to act as the Regional Manager for the Central Region (Manzini). He had served the Respondent for about thirty years. He told the court that he was still fit and ready to go back to work. He is presently not employed on full time basis but is a Councillor for Ward 11. RW2, Thabsile Susan Nkumane told the court that there is presently no vacant post for a Regional Manager. The Applicant was getting a basic salary of E14,736.75 plus a cellphone allowance, car allowance, landline allowance which amounted to a gross monthly salary of E20,367.09. On his dismissal he was paid Notice pay and part of his leave pay. Taking into account all these factors the court will award the Applicant an amount equivalent to six months’ salary as compensation for the unfair dismissal.
[13] The court will accordingly order the Respondent to pay the following amounts to the Applicant:-
1. Additional Notice E109,024.92
2. Severance allowance E272,562.30
3. Leave pay E 70,377.77
4. Compensation (E20,367.09 x 6) E122,202.54
Total E574,167.53
The Respondent is to pay the costs of suit.
The members agree.
NKOSINATHI NKONYANE
JUDGE OF THE INDUSTRIAL COURT
