IN THE INDUSTRIAL COURT OF SWAZILAND

 

HELD AT MBABANE                                                         CASE NO. 425/05

 

In the matter between:

ALMON DLADLA                                                                APPLICANT

                                                           

 

And

SWAZILANDMEAT INDUSTRIES (PTY) LTD            RESPONDENT

                                                                                               

CORAM:

N. NKONYANE                                                      :JUDGE

DAN MANGO                                                           :           MEMBER

GILBERT NDZINISA                                 :           MEMBER

 

FOR APPLICANT                                                   :           MR S. MADZINANE

 

[1]     The applicant is an adult Swazi male of Nhlangano.  The respondent is a company based in Matsapha Industrial Site.  The applicant was employed by the respondent on 24.06.92 as a shiftman.  He remained in the continuous employ of the respondent until 21.08.03 when he was dismissed after he was found guilty of charges of refusal to follow a lawful instruction and absenting himself for two days.

 

[2]     The applicant contested his dismissal.  He filed an appeal which was dismissed by the chairman of the appeal.  He then reported a dispute with CMAC.  The dispute was not resolved at CMAC and the applicant accordingly instituted an application for determination of an unresolved dispute before this court in terms of the provisions of the Industrial Relations Act, 2000 as amended.

         

[3]     In his papers the applicant alleged that that his dismissal by the respondent was both substantively and procedurally unfair because;

 

1. The two days in which he was absent were his off-days.
2. He was not afforded an opportunity to state his case and was refused the right to representation.

 

 [4]    The respondent denied that the applicant was substantively and procedurally unfairly dismissed.  The respondent averred in its reply that the applicant was dismissed for having absented himself for two working days without permission and secondly; failure to follow lawful instructions of his superior.

 

[5]     The evidence led before the court revealed that the applicant and RW2, Dumsani Mlotsa were working alternating shifts.   The applicant would have his off days on Monday and Tuesday and RW1 would have his off-days on a weekend, that is, Saturday and Sunday.  The applicant approached RW2 and asked that they alternate so that he could also get off-days during the weekend.  RW2 and the applicant agreed to this arrangement.

 

[6]     When management got to know about this arrangement between the applicant and RW2, Trevor Wolverson told the two to stop and revert to their original shifts.  They did not stop and Trevor Wolverson had to write letters to both RW2 and the applicant telling them to stop their arrangement.  Applicant did not stop but took the weekend off on the 16^th and 17^th August.  The applicant was thus charged for defying a lawful instruction and also for absenting himself for two days.

 

[7]      RW2 denied that this arrangement was known to management and that management had condoned it.  RW2 further denied that this arrangement between him and the applicant had been going on for about eleven to twelve years.  RW2 said they started this arrangement after the senior shiftman Isaac Tsabedze was retrenched and RW2 became the senior shiftman and started to enjoy off-days during the weekend.  RW2 said Trevor Wolverson got to know about the arrangement in June 2003 and he told them to stop sharing the off-days on weekends.  RW2 said Wolverson called a meeting of all the four shiftsmen and tried to find out if they had a similar problem.  The two other shiftmen indicated that they did not have a problem.  Having transpired that the problem of the weekend was between RW2 and the applicant only, Wolverson told them to stop and revert to the original arrangement.

 

[8]    RW2 was cross examined at length by applicant’s counsel.  Applicant’s counsel wanted to elicit evidence that the arrangement of sharing the weekends between RW2 and the applicant was made in conjunction with management and that management was aware of the arrangement and condoned it.  RW2 however denied that.  He said the arrangement was made by him and the applicant.  RW2 said as soon as Wolverson got to know about the arrangement, he instructed them to stop and revert to their original shifts.

 

[9]    The court therefore finds that it was proved that:

 

1.     The arrangement was never sanctioned by management;

 

(b)     As soon as management found out, they ordered RW2 and the applicant to stop verbally and by letter;

 

(c)     Despite applicant having been made aware that his conduct was not acceptable to management, he proceeded to take the weekend off on 16^th and 17^th August 2003.

 

         

[10]  The court therefore will come to the conclusion that substantively the respondent had a fair reason to dismiss the applicant for failure to heed the employer’s instruction.  This case is however distinguishable from the cases of;

 

        - Collie Dlamini v. Swaziland  Electricity Board,

           Case no. 105/05 (IC).

 

• Joshua Matse v. Fidelity Springbok Security

Services case No. 39/02 OC.

 

•  Russel Thomas Young v. Swazi Lottery Trust,

Case No. 313/04 (IC).

 

The court made a finding in these cases that the instructions that the applicants were being asked to carry out were either unlawful or unreasonable.  An employee is not obliged to carry out an unlawful or unreasonable instruction from the employer. In the present case it has not been shown that the instruction was unlawful or unreasonable.            

 

[11]  The court therefore will find that substantively the dismissal of the applicant was fair.

 

[12]  It was also argued on behalf of the applicant that his dismissal was procedurally unfair because;

 

1. He was denied representation by the union on appeal.
2. He was denied the right to appeal to the Managing Director as per the provisions of the Disciplinary Code and Procedure.
3. He did not get a chance to state his case and call his witnesses.
4. He was charged outside the seventy two hours after management got to know of the incident as stated in the respondent’s Disciplinary Procedure document.

 

[13]   The court will dismiss the applicant’s argument that he was charged outside the seventy two hours stated in the respondent’s disciplinary code.  The evidence clearly showed that when the applicant returned to work on Monday his line manager was not at work.  When he came to work and learnt that the applicant had committed misconduct, he immediately took steps towards disciplining the applicant.  The respondent’s code specifically states that the incident complained of must have come to the attention of the line manager and not just anyone.

 

[14]   The court agrees with the applicant that there were procedural flaws in the handling of the disciplinary process.  From the record of the disciplinary hearing there is no evidence that the applicant was given an opportunity to state his case.  The applicant told the court that he was indeed confused by the procedure and did not know whether it was an enquiry or hearing.  Indeed the record of the hearing shows that there was more participation of the chairman than the initiator.  It cannot be said that the applicant had a fair hearing, if this was a hearing at all.

 

[15]   The court is alive to the fact that the standard of conducting a  disciplinary hearing at the workplace cannot be like that of a trial in a court of law.  There are, however, basic requirements of a fair hearing that must be adhered to even at the level of a disciplinary hearing without which it cannot be said that the accused employee had a fair hearing.

 

[16]   At the hearing the applicant was represented by a shop steward by the name of Mefika Dlamini.  On appeal the applicant was not afforded the opportunity to be represented even though he had raised the issue.  It was clearly wrong for the appeal chairman to simply overlook this issue. 

 

[17]   The enquiry before the court in an application where the employee claims that he was unfairly dismissed is twofold, namely; was the dismissal for a fair reason; and two; did the employer follow a fair procedure.  An employee is entitled to a fair pre-dismissal procedure no matter how guilty he may be.  In this case the court has no hesitation in coming to the conclusion that the dismissal of the applicant was procedurally unfair.

 

[18]   Remedy:

 

          There was no evidence that the applicant had a record for misconduct at work.  The applicant is married and has five children.  He has not yet secured full time formal employment.  He now survives by doing farming.  Taking into account all these circumstances the court will order the respondent to pay to the applicant an equivalent of four months’ pay as compensation for the unfair dismissal. The court having found that the dismissal of the applicant was unfair only for procedural reasons, the court will not make an order for costs.

 

[19]   The court will accordingly make the following order:

 

1. The respondent is to pay the applicant the sum of (E1,271:40 x 4)  E5,085.60.
2. No order for costs is made.

 

The members agree.

 

         

          N.  NKONYANE

         JUDGE OF THE INDUSTRIAL COURT