IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 323/16
In the matter between:
THULANI MTSETFWA Applicant
THE CIVIL SERVICE COMMISSION 1st Respondent
SWAZILAND GOVERNMENT 2nd Respondent
ATTORNEY GENERAL 3rd Respondent
OF SWAZILAND (ATUSWA)
Neutral citation: Thulani Mtsetfwa v The Civil Service Commission & Others (323/16) SZIC (May , 2018)
Coram: N. Nkonyane, J
(Sitting with G. Ndzinisa and S. Mvubu
Nominated Members of the Court)
- This is an application for determination of an unresolved dispute instituted by the Applicant against the Respondents in terms of Section 85(2) of the Industrial Relations Act No.1 of 2000 as amended, read together with Rule 7 of the Industrial Court Rules of 2007.
- The Applicant is an adult male person of Manzini in the Manzini Region, Kingdom of Eswatini.
- The Applicant is a former employee of the Government of Eswatini and was employed by the Department of Fire and Emergency Services. At the time of his dismissal he was stationed at the Manzini Fire Station.
- The Applicant was dismissed after he was found guilty of various acts of misconduct committed at the workplace on divers occasions. He was dismissed by letter dated 13th March 2013. Annexure “TM1” of the application. The Applicant claims that his dismissal was both procedurally and substantively unfair.
- The Respondents disputed the Applicant’s claim. In its Reply the 2nd Respondent stated that the dismissal of the Applicant was substantively and procedurally fair.
- As the result of the alleged unfair dismissal the Applicant is now claiming payment of notice pay, additional notice, severance allowance, leave pay and maximum compensation amounting to E175, 055.35.
- In his evidence before the Court the Applicant stated that he was employed by the 2nd Respondent as a fireman. He was first stationed at Nhlangano Fire Station. He was thereafter transferred to Manzini Fire Station where he remained in continuous employment until he was dismissed on 13th March 2013. In 2012 he was called upon to appear before a Departmental Internal Enquiry which was held at the Boardroom of the Ministry of Agriculture in Fairview South, Manzini, following some allegations of misconduct levelled against him.
- After the internal inquiry, it was recommended that disciplinary action be taken against the Applicant. The Applicant was indeed served with charges containing four counts of misconduct. The Applicant pleaded not guilty to the charges. On the first day of the disciplinary hearing the Applicant was represented by a union official by the name of Quinton Dlamini. The union official told the 1st Respondent’s Chairman that the defence requested certain documents from the employer which they were not furnished with. He said one of the documents requested was the Occurrence Book (“OB”). He said as the result of the failure for the employer to furnish them with the required documents, he was withdrawing from representing the Applicant in the matter.
- The Applicant requested a postponement of the hearing in order for him to get the opportunity to seek another representative. The postponement was granted. On the next day of the disciplinary hearing the Applicant was represented by two legal representatives from Mkhwanazi Attorneys being Miss Happy Mkhabela and Miss Tengetile Dube. A member of the Commission by the name of Magwagwa Mdluli told the Applicant’s representatives that they would not be allowed to say anything because they were not employed by the Government and that only the Applicant who was the person facing the charges would be allowed to say something. The Applicant’s legal representatives therefore remained silent throughout the disciplinary hearing process.
- At the end of the disciplinary hearing the Applicant was found guilty and was dismissed by letter dated 13th March 2013.
- On behalf of the 2nd Respondent two witnesses testified being RW1, Sabelo Sihlongonyane and RW2, Otto Dlamini. RW1 told the Court that the Applicant was very in disciplined employee and very difficult to work with. He said the Applicant was someone that did not respect authority and used foul language at work. He told the Court that on 14th July 2010 a fire alarm rang and the Firemen went to the designated motor vehicle but that motor vehicle had mechanic problems. RW1 then showed the Firemen another motor vehicle to use. The Applicant refused to board that motor vehicle and ended up not attending the emergency.
- RW1 reported the matter to the rightful authorities. The Applicant was summoned by the Principal Secretary. The Applicant did not show up for work on the day that he was supposed to meet the Principal Secretary. The Applicant told RW1 that he was sick on that day. The Applicant failed to produce any sick note to RW1 or at the disciplinary hearing.
- On 16th May 2011, RW1 detailed the Applicant to carry out duties at the watch room. The Applicant refused to carry out that instruction. RW1 also told the Court that on 26th July 2010, the Head Office in Mbabane asked him to send a motor vehicle to Mbabane. RW1 found that the motor vehicle requested by the Head Office was not around. The requested motor vehicle was an ambulance. After making some investigations from the officers that were present, RW1 discovered that the motor vehicle had been taken out by the Applicant without authority. On his return, the Applicant told RW1 that he had taken the motor vehicle because he wanted to go and buy something to eat.
- RW1 also told the Court that the Applicant was very rude and that when he had called him to his office, the Applicant would talk loudly and when he left would leave the door open. He said at one point the Applicant called him a fool in front of other employees. He said he reported the matter to the authorities and that on seeing that no steps were taken against the Applicant, he decided to instruct an attorney and instituted a defamation suit against the Applicant. The Applicant failed to successfully challenge the evidence of the witness during cross examination.
- RW2, Otto Dlamini told the Court that he is currently based at the Head Office in Mbabane. He told the Court that at the time relevant to the changes he was based in Manzini. He told the Court that the Applicant was a very in disciplined employee. He said sometimes when the Applicant talked to him he would bang the table with his hand. During cross examination RW2 told the Court that he was involved in the preliminary internal.
- ANALYSIS OF THE EVIDENCE AND THE LAW APPLICABLE:
In an application for determination of an unresolved dispute where the Applicant is claiming that he was unfairly dismissed by the employer, the burden of proof that the dismissal was for a fair reason is on the employer. (See: Section 42 of the Employment Act N0.5 of 1980 as amended.) The Industrial Court sits and hears the unresolved dispute between the parties afresh; it does not sit as a Court of appeal or review of the internal disciplinary hearing. (See: Swaziland United Bakeries v Armstrong Dlamini, case number 117/94 (ICA).
- In casu, the employer led evidence of two witnesses who told the Court about the misconduct committed by the Applicant at the workplace. The evidence led by the employer remained largely unchallenged during cross examination. The Applicant did not dispute the evidence that he did not attend the fire emergency that was reported at Sidvokodvo. The Applicant also did not dispute the evidence that he failed to attend the meeting with the Principal Secretary. He told the Court that he did not attend that meeting because he was sick and he attended Doctor Futhi Dlamini’s Practice for medical attention. The Applicant however failed to produce a sick note to prove that he had a Doctor’s permission to be away from work.
- The Applicant also did not dispute the evidence that he failed to heed RW1’s instructions to do watchroom duties. He also failed to dispute the evidence that he used a Government Motor Vehicle, to wit, an ambulance for his own personal errands.
- In count 1, charge 1, the Applicant was facing the charge of refusing to attend a grass fire incident at Nkiliji on 20th September 2005. There was, however, no evidence led before the Court by the employer to prove the commission of this offence. In any event, it was clearly unfair on the part of the Applicant to be charge with an offence that was alleged by committed more than five years ago. The hearing of a disciplinary offence most be timeous. Dealing with this issue, John Grogan: Workplace Law, 8th edition at page 193 stated that;
“A hearing must be convened as soon as possible after the incident which led to the disciplinary action so that the facts are still fresh in the minds of the parties and their witnesses. Another reason why disciplinary hearings should be held expeditiously is that otherwise the employer may be deemed to have waived its right to dismiss for the charge alleged.”
- The evidence also revealed that Applicant’s legal representatives were denied the opportunity to represent the Applicant even though they had attended the disciplinary hearing. The evidence that one of the commissioners, Magwagwa Mdluli, told the Applicant’s legal representatives not to take part because they were not the ones facing the charges was not disputed. The Applicant’s right to be legally represented was therefore violated by the 1st Respondent. It should follow therefore that the dismissal of the Applicant was procedurally unfair. The evidence by the Applicant that after he had received the letter of dismissal he wrote to the employer and requested an opportunity to lodge an appeal was not disputed. No appeal hearing was held. It cannot be said that the disciplinary hearing was fair if the accused employee was not given the opportunity to file an appeal.
- From the evidence led before the Court, the Court has no hesitation in coming to the conclusion that the employer was able, to discharge the burden of proof that rested on it to prove on a balance of probabilities that the dismissal of the Applicant was for a fair reason. The Court will therefore come to the conclusion that the dismissal of the Applicant was substantively fair. The evidence however revealed that the Applicant was denied legal representation. The Applicant was also not afforded the opportunity to appeal the decision to terminate his service. Because of these reasons, the dismissal of the Applicant was procedurally unfair.
- The evidence of the commission of the misconduct by the Applicant was overwhelming. Even if that be the case an employee is still entitled to a fair disciplinary hearing. (See: Thwala V. ABC Shoe Store (1987) 8 ILJ 714 (IC)).
The Court, taking into account all the evidence before it, the circumstances of the case, will come to the conclusion that the dismissal of the Applicant was procedurally unfair.
The Applicant had applied for re-instatement. The Court has, however, found that the Applicant’s dismissal was unfair only for procedural reasons. The Court cannot, therefore, consider a re-instatement order. (See: Section 16 of the Industrial Relations Act of 2000 as amended). As already pointed out herein, the evidence that the Applicant was a very ill-disciplined employee was overwhelming. Taking into account all the personal circumstances of the Applicant the interests of justice and fairness, the Court will come to the conclusion that compensation equivalent to five months’s salary would be fair in the circumstances of this case.
The Court will accordingly make the following order;
- The 2nd Respondent is to pay the Applicant the sum of (E10, 458.64 x 5) E52,293.20 as compensation for the procedurally unfair dismissal.
- Each party to pay its own costs.
- The members agree.
JUDGE OF THE INDUSTRIAL COURT OF SWAZILAND
For Applicant : Mr. V. Dlamini
(Attorney at Mkhwanazi Attorneys)
For Respondents: Mr. M. Vilakati & Ms L. Simelane
(Attorneys from the Attorney General’s Chambers)