IN THE INDUSTRIAL COURT OF SWAZILAND

 

HELD AT MBABANE                                                         CASE NO.:258/07

 

In the matter between:

BONGIWE KHUMALO                                                       APPLICANT

 

 

And

CREATIVE CONSULTANTS INVESTMENTS

(PTY) LTD                                                                            RESPONDENT

 

CORAM:

N. NKONYANE                                                      :JUDGE

DAN MANGO                                                           :           MEMBER

GILBERT NDZINISA                                              :           MEMBER

 

FOR APPLICANT                                                   :           MR. S.M. SIMELANE

 

[1]     The Applicant is a major spinster of Siteki, Lubombo Region.  The Respondent is a company incorporated with limited liability whose place of business is at Third Floor, SNAT Co-ops Building in Manzini.

 

 [2]    The Respondent is in the business of debt collection.  Its clients are mainly Furniture Shops around the country.  If the customers of the Furniture Shops are unable to pay their instalments, the Furniture Shops would refer the matter to the Respondent.  The Respondent would try to get the customer to pay and if the customer fails, the Respondent would refer the matter to its Attorneys to institute legal proceedings in court to recover the money.  Usually this process ends in a garnishee order being issued by the court in terms of which the money is made payable to the Respondent’s attorneys, who in turn remit it to the Respondent after charging a certain fee.  The Respondent’s attorneys are Piliso Simelane Attorneys.  This firm of attorneys is also based in the same building with the Respondent, namely, SNAT Co-ops Building in Manzini.  The understanding between the parties is that the letter heads of the firm of attorneys are kept in the Respondent’s offices.  The Respondent’s secretarial staff would write letters on the letterheads   and then take the letters to the attorneys to sign.

         

[3]     As per the practice, the Applicant indeed wrote a letter on Respondent’s attorneys’ letterheads on 26^th June 2006.  The Applicant wrote this letter on behalf of someone who wanted to access a loan from MP Swaziland, a micro lender.  The letter was signed by an articled clerk.  MP Swaziland indeed granted the loan and issued a cheque of E4,720:00 in the name of Piliso Simelane and Partners.  The Applicant approached Mr. Piliso and requested that the amount be paid to her so that she could transmit the money to the woman that she had assisted to get the loan.  Mr. Piliso suspected foul play because of the Applicant’s persistence that the money be paid to her.  On investigations it transpired that the amount was destined to the Respondent.  The Applicant was thus charged with dishonesty and/or attempted fraud and/or conspiracy to commit fraud.  She was found guilty and dismissed.  She appealed and the appeal was dismissed.

 

[4]     The Applicant was of the view that her dismissal was unfair.  She reported a dispute at CMAC.  The dispute was unresolved and a certificate of unresolved dispute was issued.  The Applicant accordingly filed with the court the present application for determination of an unresolved dispute.  She is claiming payment of notice pay, underpayments and maximum compensation for the alleged unfair dismissal.

 

[5]     The allegations of unfair dismissal are disputed by the Respondent.  The Respondent stated as follows in its Reply:

 

“6.1   That it was fair to terminate the services of the applicant because the offence upon which she was found guilty is one of dishonesty which is in line with the provision of Section 36 (b) of the Employment Act 1980.

6.2    Nothing was said by the Applicant during the disciplinary hearing to mitigate the sanction as she opted to remain silent and in the circumstances taking into account all circumstances of the case it was reasonable to terminate the services of the employee thus in line with Section 42(2)(b) of the Employment 1980.”

 

 [6]   In court the evidence led revealed that the Applicant was employed by the Respondent as a Typist.  She said after three months she was asked to receive cheques as the incumbent was on maternity leave.  She said she was employed by the Respondent on 15^th March 2005 and remained in the continuous employ of the Respondent until August 2006.   She said at the time of her dismissal she was holding the position of Credit Controller.  She told the court that she was paid a basic salary of E800:00 per month plus some credits which made her gross salary to be E1,200:00 per month.  She said that she was being underpaid by the Respondent because Credit Controllers in similar organizations were getting paid E2,000:00 per month.  She also told the court that she learned that she was being underpaid because a certain Labour Officer came to their workplace and advised her that she was being underpaid.

 

[7]    The Applicant told the court that she was approached at work by a certain man by the name of Samkelo Mafutha Mabundza.  She said she knew this man from Siteki and that he was a soldier based at Mlindazwe.   She said Mabundza asked her to write a letter on his behalf to MP Swaziland in order for him to qualify to access a loan. The letter was to inform MP Swaziland that Mabundza was indebted to Town Talk Furnishers and had a balance of E4,713.21. She agreed to write the letter and she used the letterheads of the Respondent’s attorneys, Piliso Simelane  Attorneys. The letter was handed in court as “Exhibit D”. The Applicant told the court that MP Swaziland did not give cash loans but paid directly to settle the debt.  MP Swaziland indeed issued a cheque of E4,720:00 payable to Piliso Simelane and Partners.

 

[8]    After the cheque had been received by the Respondent, Mr. Piliso said he was approached by the Applicant who asked him to have the money deposited into her personal account so that she could then get the money and give it to the woman that she had assisted to get the loan from MP Swaziland.  Mr. Piliso said one day she met the Applicant’s workmate Mpumi Dlamini who asked him why he was frustrating the Applicant by delaying to give her the money.  Mr. Piliso said he became exasperated and suspicious of the Applicant’s conduct.  Mr. Piliso said he also became angry because it was wrong in the first place for the Applicant to use their letterheads for something else other than for the business of the Respondent.

 

[9]    RW1, Sunday Mdluli an employee of the Respondent told the court that the Applicant told them that Mabundza was her relative.  He said the Applicant wanted the cheque to be cashed quickly and the money paid to her.  During cross-examination he said the Applicant’s conduct could have caused the Respondent to lose customers.  RW2 Mathokoza Mbhamali was an articled clerk at Piliso Simelane and Partners. He told the court that the Applicant brought to him the letter and he is the one who signed it.  RW3, Henry Bartaria, told the court that the Applicant was employed as a Typist and was never at any time a Credit Controller.  He said the Respondent did not have the position of Credit Controller.  He told the court that the Applicant told them during the investigation that the cheque belonged to a certain woman that she assisted to get a loan .  He agreed that cheques would be written directly to the Respondent or to the Respondent’s attorneys who would then remit the money to the Respondent.  RW4 Ntobeko Piliso told the court that the Applicant wanted the cheque amount paid to her.  He said the Applicant told them that the person that she had helped was a woman.

 

[10]  The evidence also revealed that during the disciplinary hearing the Applicant was not represented.  The minutes of the hearing, “Exhibit B” showed the following in the first paragraph,

 

         “The chairlady explained to Bongiwe Khumalo that they had received a letter from their attorneys asking for a (sic) postponed but the chairlady has ruled that the hearing shall proceed for reasons that have been explained to Mpumi Dlamini and since both Bongiwe and Mpumi are represented by the same attorney she shall liaise with Mpumi for the reasons thereof.  Bongiwe mentioned that she shall remain silent in the circumstances.”

 

         The minutes showed that the Applicant opted to remain silent throughout the proceedings.  After the hearing she was found guilty of dishonesty/attempted fraud.

 

[11]  Analysis of the Evidence

The Applicant stated that she was employed by the Respondent on 15^th March 2005 and was dismissed on 18^th September 2006.  Having completed three months probation, she was therefore an employee to whom Section 35(2) of the Employment Act 1980 applied, that is, she was an employee whose employment the employer could not terminate unless there was a fair reason to do so in terms of Section 36 of the Act.  The burden of proof that the service of an employee was terminated for a fair reason rests on the employer.  (See: Section 42(2) of the Act).

 

[12]  Before the court the evidence that the Applicant used the letterheads of the Respondent’s attorneys for purposes other than the normal business of the Respondent was not in dispute. The Applicant herself told the court that she used the letterheads to assist Mabundza to get the loan from MP Swaziland.  That this was outside the scope of the Respondent’s business was not disputed by the Applicant.  When the loan was granted by MP Swaziland, and the cheque issued in the name of the Respondent’s attorneys, the Applicant approached Mr. Piliso and asked that the cheque amount be made payable to her so that she could give the money to the woman that she had assisted to get the loan.  This was clearly a dishonest conduct on her part because;

 

12.1          She lied about  the identity of the person that she had assisted to get the loan.  The Applicant said she was assisting a certain woman when she knew that that was false as the person who approached her was a male.

 

12.2          The evidence revealed that in fact, it was Mpumi Dlamini who was responsible for dealing with cheques at the Respondent’s place.  The Applicant was only a Typist and would only carry out other tasks only when specifically instructed by management. She had not been instructed by management to deal with this cheque.

 

12.3          The Applicant knew that Mabundza had a debt to settle with the Respondent’s client, Town Talk Furnishers.  She also knew that MP Swaziland had granted the loan for the purposes of settling the debt that Mabundza had with Town Talk Furnishers (See Exhibit D and Exhibit E), and did not give cash loans. She therefore had no good reason to approach Mr. Piliso and ask him to be given cash amount or have the law firm write a cheque in her name for the amount of the cheque from MP Swaziland.

 

 [13].The Applicant’s attorney urged the court not to believe the evidence of the Respondent’s witnesses as it had several contradictions and inconsistencies.  It is not every contradiction and inconsistency that could lead to the rejection of a witness evidence.  It is only a material contradiction or inconsistency.  The Respondent’s witnesses did not contradict themselves on the material aspect of the evidence namely that:

 

13.1            The Applicant abused the Respondent’s attorneys letterheads.

 

13.2            She was not the one who dealt with cheques but it was Mpumi Dlamini.

 

13.3            She approached Mr. Piliso and asked him to have the cheque amount to be paid to her so that she could give the money to the woman that she helped to write the letter to secure the loan.

 

[14]   It was further argued on behalf of the Applicant that the dismissal of the Applicant was unfair because there was no evidence that the relationship between the parties had broken down or had been rendered intolerable.  In the case of Anglo American Farms Restaurant v. Komjwayo [1992] 13 ILJ 573 (LAC) the court pointed out that the true test was whether the employee’s action had the effect of rendering the relationship of employer and employee intolerable.

 

[15]   In the present case, the business of the Respondent involved handling of money that was to be later transmitted to the Furniture Shops, its clients.  Any attempt by one of its employees to intercept the monies due to the clients is a serious misconduct as the Respondent could lose business.  Trust is clearly an integral part of the Respondent’s business as it handles money on behalf of its clients. Because of the nature of the Respondent’s business, an act of dishonesty, as was exhibited by the Applicant, could render the employer/employee relationship intolerable.  The Respondent was therefore justified in coming to the decision of dismissal in the circumstances of this case.

 

[16]   The Applicant’s attorney argued that the Respondent has failed to prove attempted fraud.  He argued that even if the court could find that the alleged words were uttered by the Applicant to Mr. Piliso, that such words were too remote from the alleged offence of attempted fraud.  Reliance was placed on Burchell & Milton: Cases & Materials on Criminal Law 2^nd edition pages 679-680 where the learned authors stated as follows:

 

          “That the prejudice necessary to support a charge of fraud must not be too remote or too fanciful …”

 

          The authors went further however and stated that:

 

          ‘I doubt whether we can lay down a hard and fast test, so much depends upon all the surrounding circumstances of each and every particular case.”

 

          In the present case the potential prejudice was not too remote or fanciful.  The Applicant had actually requested Mr. Piliso to pay the amount of the cheque to her.  In any event, the Applicant was charged with dishonesty and/or attempted fraud and/or conspiracy to commit fraud.   She was found guilty of dishonesty/attempted fraud.  Even if it were to be found that attempted fraud has not been proved, her conduct of abusing the letterheads and approaching Mr. Piliso to have the money paid to her clearly amounted to dishonesty.  

         

[17]   The only comment on the charge that the court may make is that it was too widely framed.  From the evidence led before the court however, the court will come to the conclusion that the dismissal of the Applicant was substantively fair.

 

[18]  The case of the Applicant before the court as appeared on paragraph 7 of the Applicant’s application was that her dismissal was substantively unfair in that there was another alternative and less severe sanction of a final written warning but  the Respondent opted for the more severe sanction of summary dismissal. It was not her case before the court that her dismissal was also procedurally unfair. The court will therefore make no finding on the fairness or otherwise of the procedures adopted by the Respondent leading to her dismissal. She also claimed that she was being underpaid. During the trial however, the court was informed that the parties had managed to amicably reach an agreement on the claim for underpayment.  This claim is therefore no longer alive before the court having been amicably settled between the parties.

 

[19]   The court taking into account all the foregoing observations and also all the circumstances of the case, the court will come to the conclusion that the Applicant’s dismissal was for a fair reason, and that taking into account all the circumstances of the case,it was reasonable for the Respondent to terminate the service of the Applicant.       The court will accordingly make the following judgement:

 

1. The application is dismissed with no order as to costs.

 

The members agree.

 

         

N.  NKONYANE

JUDGE OF THE INDUSTRIAL COURT