IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 488/06
In the matter between:
THULI MTSETFWA APPLICANT
SCORE SUPERMAKRETS (PTY) LTD RESPONDENT
NKOSINATHI NKONYANE : JUDGE
DAN MANGO : MEMBER
GILBERT NDZINISA : MEMBER
FOR APPLICANT : M. MOTSA
FOR RESPONDENT : S. ZIKALALA
 The Applicant is an adult Swazi female of Tshaneni in the Lubombo District. The Respondent is a company duly incorporated in terms of the company laws of the country having its place of business in Tshaneni. The Applicant was employed by the Respondent as a Cashier on 25th May 1991. She worked for the Respondent continuously until she was dismissed by the Respondent on 03rd February 2004. She regarded her dismissal as unfair and accordingly reported a dispute with the Conciliation, Mediation and Arbitration Commission (CMAC). The dispute could not be resolved hence she instituted the present application for determination of an unresolved dispute in terms of Section 85(2) of the Industrial Relations Act, 2000 as amended.
 In her papers the Applicant is claiming:
2.1 Re-instatement with arrear monthly wages alternatively
Maximum compensation for unfair dismissal (12 months)
Any other competent relief
 The Applicant averred in her papers that her dismissal was unfair both substantively and procedurally because;
3.1 After a disciplinary enquiry held on the 22nd January 2004, she was allegedly found guilty of poor work performance, failure to adhere to company procedures and dishonesty without valid and cogent evidence substantiating the charges.
3.2 Even if she was properly found guilty, it was not reasonable to dismiss the Applicant summarily in the circumstances, and as such, Section 42(2)(b) of the Employment Act was not complied with by the Respondent.
3.3 The Applicant’s mitigating factors were totally not observed by the presiding officer of the disciplinary enquiry, which if they were carefully considered, a sanction short of dismissal would have been arrived at.
3.4 There was no properly constituted and procedurally adhering disciplinary tribunal and/or enquiry in that the chairman also acted as an initiator which renders the outcome of the hearing unfair.
3.5 The Applicant was denied a right of appeal through the appeal structure of the Respondent.
 The Respondent denied that the dismissal of the Applicant was substantively and procedurally unfair. The Respondent averred in its Reply that the Applicant was found guilty of dishonesty and all trust between the parties had irretrievably broken down and that it was therefore reasonable in the circumstances of the case to dismiss her.
 The evidence led in court showed that at the time of her dismissal, the Applicant was holding the position of Chief Cashier. There was a dispute about her position whether she was a Chief Cashier or Chief Administrator. She was earning E1,801:00 per month. Her main duties were to count money, write bank deposit slips for banking and also balance the Respondent’s financial books. One day at about 09:00 a.m. when she was still counting the money, the Respondent’s auditor, Lynda Smith who had come to the shop to do stock taking asked to check her work. The Applicant told her that she was not finished yet. Lynda Smith told her that she was going to check only what the Applicant had finished doing. By “not finished” the Applicant meant that she had not yet balanced the daily cash. Lynda Smith accordingly checked the page which the Applicant was still working on. Lynda Smith requested to see all bank deposit slips. The Applicant told her that they were at the bank. Lynda sent another employee, Hilda Mkhwanazi to go and fetch them. When Hilda returned, Lynda opened the bag and found some money amounting to E9,200:00. This money was returned by the bank because there was no deposit slip for it. Lynda asked Jabulani Dlamini how did that happen, Jabulani apologized and said it was his mistake. This aspect of the evidence was not challenged during cross examination.
er main duties were to countH
 The Applicant told the court that the procedure was that after she had written down the amount, the Manager would then cross check and also sign to confirm the correctness of the amount so that at the end, two signatures would appear on the document. The Applicant told the court she did not see the amount of E9,200:00 before it went to the bank. The Applicant was charged with dishonesty as the Respondent believed that she wanted to steal the money. Although the manager, Jabulani Dlamini apologized for the mistake, the Respondent however charged the Applicant for dishonesty regarding this amount.
 The evidence also revealed that the Applicant was also charged for failure to account for an amount of E150:00 and also E122:00. The amount of E150:00 was due from Thuthuka Investment, a company that sold lottery tickets and was renting space in the Respondent’s premises. The Applicant explained that she had deposited this amount to the bank, and produced the deposit slip thereof being Exhibit “A”. The Applicant also explained how the shortfall of E122:00 came about. She told the court that she was instructed by Lynda to take this amount from her main float in order to balance the daily cash analysis. The Applicant said Lynda Smith told her that she knew how she (Lynda) was going to balance the main float.
 The Applicant was accordingly charged with “poor performance, not following company rules, regulations & procedures, dishonesty.” The charge appears on Exhibit “RW1”. The Applicant was found guilty and was dismissed.
 ANALYSIS OF THE EVIDENCE AND THE LAW APPLICABLE:-
The evidence led before the court revealed that two people signed the documents confirming the amount to be banked for the day. It was the Applicant and her Manager, Jabulani Dlamini. The Manager would sign after confirming the correctness of the amount that has been counted by the Applicant. The Manager apologized for the error of sending the money to the bank without a deposit slip. The Manager was not charged with any wrongdoing, it was only the Applicant that was charged. The money was returned by the bank because there was no deposit slip. There was no evidence that the Applicant intended to steal the amount of E9,200:00. Further there was nothing from the Applicant’s conduct on that day from which the court could infer that the Applicant intended to steal the money. The money eluded both the Applicant and her Manager’s attention and found its way to the bank. It was returned to the Respondent’s place still intact. From the evidence led before the court it seems clear that this was a typical mistake in an office situation. There was clearly no evidence showing that the Applicant had the intention to steal the money because of the following reasons;
9.1 The last person to count or confirm the money after the Applicant was the Manager. Without any evidence of collusion between the Applicant and her Manager, it is not clear what could make the Applicant to think that her Manager would not discover the money when he made his checking of the daily banking, if the Applicant had the intention of stealing the money.
There was no evidence of any prior arrangement or collusion between the Applicant, the bank staff or the security officers who took the money to the bank. It is therefore not clear how was the Applicant going to access the money after it had left the Respondent’s premises.
There was nothing from the conduct of the Applicant on that day from which an inference to steal the money could be made.
 As regards the other amounts of E150:00 and E122:00 the Applicant explained how these amounts caused the shortage. Lynda Smith was not called to give evidence rebutting the Applicant’s evidence that it was her who instructed the Applicant to take the sum of E122:00 from the float to balance the daily cash analysis. The Applicant also explained why she changed her plea of not guilty to that of guilty during the disciplinary hearing. She told the court that she was asked as to who should be blamed for what happened, and she said it was her because what happened was within her scope of work. There is no doubt to the court that the act of sending the money to the bank without a deposit slip was an oversight on the part of both the Applicant and her manager.
 The Applicant was charged with complex charge of “poor performance, not following company rules, regulations & procedures, dishonesty.” The Respondent was clearly not entitled to dismiss the Applicant for ‘poor performance’ without having first given her a written warning and putting her through a performance improvement plan and counseling in order to help her to improve. It is only when an employee fails to improve that he/she could be dismissed as a last resort.
See: Harpet Van Seggelen v Swazi Spa Holdings case No.390/2004 (IC).
From the evidence before court no dishonesty was proved against the Applicant. The evidence revealed that the Applicant and her manager inadvertently sent the money for banking without the deposit slip. From the evidence before the Court, it was clear that this was an oversight on the part of both the employees of the Respondent who were counting the money on that day (the Applicant and her manager Jabulani Dlamini), not justifying the sanction of dismissal of the Applicant.
 The court comes to the conclusion that explanation of the Applicant was credible. The Applicant was dismissed, inter alia, for poor work performance without a prior written warning and was not counselled or put under a performance improvement plan. The court therefore taking into account all the evidence before it and also taking into account all the circumstances of the case, comes to the conclusion that the dismissal of the Applicant was substantively and procedurally unfair.
The Applicant had no record of misconduct at the time of her dismissal. She told the court that when she was dismissed she was paid money from the Pension Fund only. The court will accordingly order the Respondent to pay to the Applicant an amount equal to seven months’ salary as compensation for the unfair dismissal. The court will also order the Respondent to pay to the Applicant the following amounts:-
a) Notice pay E 1,801:00
b) Additional Notice 11 x 4 x 69.26 E 3,047.44
c) Severance Allowance 11 x 10 x 69.26 E 7,618.16
d) Compensation (E1,801:00 x 7) E12,607:00
Total E 25,073.060
The Respondent is also ordered to pay the costs of suit.
The members agree.
JUDGE OF THE INDUSTRIAL COURT