IN THE INDUSTRIAL COURT OF ESWATINI
HELD AT MBABANE CASE NO. 251/19
In the matter between:
VUSI MKHALIPHI Applicant and
CHAPELATE SWAZILAND (PTY)LTD TIA
MONDELEZ INTERNATIONAL SICELO DLAMINI N.O
2nd Respondent
Neutral citation :Vusi Mkhaliphi and Chapelate Swaziland (Pty) Ltd t/a Mondelez International and Sicelo Dlamini N.O. [251/2019 [2019] SZIC251 [2019]
Coram B.W. MAGAGULA - ACTING JUDGE (Sitting with L.E.B. Dlamini andD. Mmango Nominated Members of the Court)
Heard 29/08/19
SUMMARY - Applicant seeks an order on an urgent basis to interdict and· restrain the Respondents from. proceeding with an internal dlscipllnary hearing enquiry. Applicant also seeks that the ruling made by a Chairman of the disciplinary enquiry to refuse him external representation be reviewed. HELD: Applicant has not shown exceptional circumstances, warranting this court to intervene and upset the decision of the \chairman, in the ongoing bearing which is still incomplete.
RULING
1. INTRODUCTION
This is an application brought by the Applicant seeking an order in the following terms;
1. Dispensing with the usualforms and procedures as relating to time limits and service of court documents that the matter be -heard as one urgency.
2. Condonding the applicant's non- compliance with the Rules of the above Honorable Court.
3. That a rule nisi do hereby issue, operating with interim and immediate effect, calling upon the Respondents to show cause on a date to be fixed by this court, why the following relief must not be granted and made final;
3.1 That the I" and2nd Respondents be and are hereby interdicted and Restrained from proceeding with the· internal ·discipliiuiry hearing between Applicant and the I" Respondent pending finalization of this matter before court.
3.2 Order correcting and setting aside as irregular, unfair and unlawful the decisions of the 2nd Respondent refusing Applicant external representation.
3.3 Order allowing the Applicant to have external representation.
3.4 order declaring that the notice of disciplinary hearing contains· charges that are duplicated.
3.5 Order removing both pt Respondent Mr. Mandia Shongwe and 2nd Respondent from participating and chairing the· disciplinary hearing between Applicant and I" Respondent.
4. Order directing the P' Respondent tofurnish the Registrar of above honorable court and Applicant with the certified record I transcript of the disciplinary hearing which transcript must include translations.
5. Order granting Applicant leave to supplement and amend both founding affidavit and notice of motion once prayer.
6. Costs of application at a high scale.
7. Further and/or alternative relief.
2. The Applicant is Vusi Mkhaliphi, an adult liswati male and an employee of the l " Respondentinthis matter.
3. The l" Respondent is Mondelez Swaziland (Pty) Ltd, a company registered in accordance with the company laws of Eswatini trading in manufacturing and supply of sweets products with its main place of business, situated at Matsapha Industrial site cited herein by virtue of being my employer.
4. The 2nd Respondent is Mr. Sicelo Dlamini N.O, attorney of the High court of Eswatini; Second Respondent is cited herein by virtue of his position as Chairperson being interdicted.
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5. This matter was set initially down for the 26th August 2019, but was heard by this court on the 2ih August 2019.
6. BRIEF BACK- GROUND
6.1 This is an urgent application brought by the Applicant on a certificate of urgency, where he seeks to interdict the 1st and 2nd Respondents from proceeding· with a disciplinary hearing, pending the finalization of this matter.
6.2 When the matter was heard on the 27th August 2019, Mr. H. Magagula filed from. the Bar, the 1st Respondent's answering affidavit, which he submitted he had prepared under constrained time frames. This according to Magagula was due to the very abridged time lines given by the Applicant in its Notice of motion.
6.3 He submitted that one of the reasons why he had to go above and beyond, to meet the imposed time lines, was to ensure that the· matter proceeds and be determined expeditiously. This was to. ensure that the disciplinary hearing scheduled for 23.0 pm that day would not be affected; .The court exercising its discretion, granted the interim order in terms_ of prayer 3 .1, to enable the applicant to file a replying affidavit.
6.4 The court furtherordered that the.matter be· argued fully once all-pleadings have been filed on the 29th August 2019 at 9.30am: Other than the consideration. that this· is a court of equity, justice dictates that both parties· must be allowed to state their sides. of the story fully, before a ruling is made.
6.5 We subsequently heard the parties on the 29th August 2019, and this is.our ruling pursuant to the. arguments. The 2nct Respondent, who is the Chairman of the Disciplinary hearing, has not filed papers before court.
7. POINTS IN LIMINE
7 .1 Through the answering affidavit of one Penelope Mkhwanazi.
The l " Respondent raised the following points in limine;
7.1.1 The above honorable court has no reviewjurisdiction.
7.1.2 There are no exceptional circumstances warranting this court to intervene in an uncompleted disciplinary' hearing.
7.1.3 The employer has a right to discipline an employee and court has no right to intervene with that right.
7.1.4 The requirements of the ground of an interim order have not been met.
7.1.5 URGENCY
8. We willnow consider each of the points raised in detail.
9. THE COURT LACK REVIEW JURISDICTION
9 .1 In paragraph 3 .2, the Applicant seeks that this court must issue an order . correcting and setting aside as irregular, unfair and unlawful.the decision of the 2nd Respondent, refusing Applicant external representation. It is this prayer that the l " Respondent is attacking as constituting a review. The 1st Respondent argues that this courthas no review jurisdiction, either in terms of Labour Law or the constitution of the Kingdoms of Eswatini.
9 .2 The 1st Respondents premise their argument on the fact that; in the case of Alfred Maia vs Chairman of Civil Service Commission and Two Others the High court held that the Industrial court has no review jurisdiction over an employer's decision, particularly where same has not gone through Part VIII of the· Industrial Relations Act of 2000 (as amended)
9 .3 The legal principle as captured by Counsel for 1st respondent Mr. H. Magagula cannot be assailed. However, the facts that prevailed in the Alfred Maia matter, · are somewhat different from what the court is faced with. In the Alfred Maia case, firstly, the employer had already taken a decision to terminate the employment. So, the employment had terminated. As the 1st Respondent has correctly articulated in it' heads of argument that the honorable court has no review jurisdiction of an employer's decision. (our emphasis on the employer) What is before us now, is a challenge of the Chairman's ruling. So, these are two totally different issues. What the Applicant is challenging, is the refusal of the chairman to accord the employee, external representation.
9 .4 Therefore, this .court must consider the matter· on the premise of whether a case has . been made for the court to intervene at this stage, in an uncompleted disciplinary hearing. And whether the Applicant has set out the requirements that mustexist, before the Industrial Court canintervene in incomplete disciplinary hearing. Not. necessarily that this court should review the employer' s decision to terminate. Those are two different considerations. We thought it was proper that we distinguish the judgment of Alfred Mia vs. Chairman of Civil Service Commission and Two Others which appears to be the basis the l " Respondent's argument.
10. Exceptional circumstances warranting the intervention of the court in an incomplete Disciplinary Hearing.
10.1 The principle as was stated in Walhaus and Others v Additional Magistrate Johannesburg and Another 1959 (3) SA 113 (A)still holds good. The court will not interfere with an employer prerogative to discipline. However, in the above stated case there was an exception, which was captioned by the court as follows; "by virtue of its inherent power to restrain illegalities in inferior courts, the Supreme Court may, in a proper cases, grant relief= by way of review, interdict, or mandamus - against the decision of ti magistrate's court even before conviction. This, however, is a power which is to be sparingly exercised. Itis impracticable to attempt any precise definition of the ambit of this power;for each case must depend upon its circumstances and will do so in rare cases where grave injustice might otherwise result or where justice might not by other means be attained ... "
11. The court · further stated • tha:t, the intervention of the court is based on the powers ·to restrain illegalities. and proinote fairness and equity in labour relations. An unfair procedural decision which has so pervasive and fatal an effect, upon all-faces of the disciplinary proceed_ings qualifies as one of the. rare cases, where grave injustice may result if the decision is allowed to stand, It is therefore _ap2ropriate, that we must now consider whether in _the circumstances of the present case before us, the Applicant has alleged unfair procedure by the chairman, which so persuasive and fatal against · all dictates of fairness disciplinary proceedings. We need to weigh if it qualifies the intervention of this court or if allowed, would result in grave injustice;
12. At the outset of his opening remarks, of the Applicant' counsel for Applicant, Mr. Ndlovu, indicated he was no longer pursuing the point on the impartiality of the chairman. This leaves the court with only the issue of external representation to dtermine. It appears that the main issue the court must analyze, is whether the ruling of the chairman with regard to allowing the applicant to be represented by an external person, is a rare case, which may result in grave injustice, if the decision. of the 2nd Respondent is allowed to stand.That is what the court must unpack and decipher.
13. In his application, the Applicant's basis for attacking the Chairman's ruling on the issue ofexternal representationis addressed from paragraph 4.9. The summary of which is that, the 2nd Respondent dismissed his application on the basis that he is a member of a union. His reliance on that conclusion, was based on the fact that his salary advise slip reflected that, every month there was a deduction made by the l " Applicant and it's narrated as "union subscription". The Applicant's contention seems to be that, there is currently a dispute where business Eswatini is .challenging the operation of SMAWU (Swaziland Manufacturing And Al11ed Workers Union)· in the· establishment of its members, including the 1st Respondent That issue is still pending. in court under case no 230/2019. He further contends that even if he was a member, it would still beimpossible for-·th~ uri~on to represent him in. light of the dispute existing between the two.
14. What is apparent, .is that the issue of whether the union should: operate within the 1st Respondent has still not been finalized, and is still pending. There is no evidence before us that there is a c. ourt order which bars the union from operating in the 1st Respondent 's undertaking as yet. The Applicant has not alleged that he has approached the union_ and the union has refused to represent him. The Applicant further, does not explain what is the deduction for in his pay slip, that is being transmitted to the union, if it is not for subscriptions. In as much as he denies .in paragraph 4.1, he does not explain what is the deduction for?
15.- The question for representation in an internal disciplinary hearing is regulated by the disciplinary code in the L" Respondent's undertaking.· The Applicantis also governed by the disciplinary code. Th1s is a body of rules, which regulates how a discipline should be enforced at the lsT Respondent's work place. It is therefore, important that consideration and respect must be giveri to this body of rules. The courts should be slow to interfere. with such an embodiment, which is usually a product of negotiation between employer and employee and it binds their relationship. It is therefore, apposite for us to look into the relevant provisions of the code in so far as external representation is concerned.
16 In Part 2.2.1, the disciplinary code states as follows; the colleague has ·a right to be. represented by the relevant shop steward or fellow- colleague of. the employee's choice within the business site of Mondelez SWZ where the colleague works.
17. In our· interpretation, the disciplinary code clearly does not provide for external representation. However, that does not necessarily mean the court cannot, in deserving circumstances intervene and · order · that external representation be allowed. The criteria to do so, would be exceptional circumstances that must exists, before this court can . interfere with the decision of the Chairman. It is the interrogation of the exceptional circumstances that must· be shown before that decision is · arrived at, that we will now consider.
18. What the applicant has stated in his papers before court, is that there appears to be a dispute, regarding which union must operate within the· 1st Respondent's undertaking. However, there are no facts placed before this court, on the question whether a ruling has been made which prevents the union to represent him. The Applicant has not stated before court that he has approached the union and the union has refused to represent him.
19. We are at pains to arrive at a finding . that there are exceptional circumstances; when the applicant himself, has not demonstrated before court that the only remedy is to approach the court for external representation, outside the requirements of the disciplinary code.
20. In the matter between Riekert vs. CCMA and others 2006, 4 BLLR, the Court had the following to say; " there is clear case law to the effect that disciplinary codes this should not in any circumstances, be understood by employers·as meaning that they may chop and change the disciplinary procedures they themselves have sets asand when they wish. The employers and employee are entitled to comply with the prescribed Rules.of the game, as far as 'the disciplinary enquiry go. When an employer does not comply with the. aspect of its disciplinary procedures, there must be. good reasons shown, of its failure to comply with its ow11 ~et of rules". _
21. In as much as the above quote, had· been directed to an employer who wanted to deviate from the code. It is similarly applicable to employee. The crux of the reasoning. of this caption is that, respect must be given to the Disciplinary code. The court must not be easily deviate from it, there must be good reason shown, for failure to comply with the set rules.
22. This court has had an occasion to outline certain considerations that must be made in determining the issue whether external or legal representation must be allowed in internal disciplinary hearings.This was in the matter ofNdoda H. Simelane Vs National Maize Corporation (Pty) Ltd case no
453/2006. The special circumstances to be considered include the following;
22.1 The nature of the charges brought.
22.2 The degree of the factual and legal complexity involved in the hearing.
22.3 The potential seriousness of the consequences of an adverse finding.
22.4 Whether the Respondent will be unreasonably prejudiced; if the Applicant is permitted a representative of his choice and in particular a legal representative.
22.5 The nature of the prejudice to employee in refusing the. legal representation,
23. The nature of the charges brought against the Applicant, • appear on the charge sheet, which is annexure VM2" in the papers filed before. court.: The charges emanate from· an incident that occurred on the 8th July ·2019 at the company premises. There.are five· charges that the Applicant is facing. Two charges are victimization/intimidation /threatening and/or menacing behavior, and two are for serious misconduct. The firth charge is failure to comply with company safety rules and regulations.
24. When applying the criteria that as laid down in the Ndoda Simelane matter it appears that the charges are simple and straight forward 'and within the comprehension of the Applicant to enable him to give instructions to his representative, if he so wishes. He is capable of stating his side of the story to the Chairman. The charge is that on the sth July 2019 at the company premises did intentional and/or maliciously drove his motor vehicle towards a fellow employee, on,e Doctor Mamba. Whether his intention was to cause injuries to the employee or whether.his conduct intended to put the life of the said employee in danger, can be best explained by him as he was the one allegedly driving the motor vehicle. These instructions are capable of being given to a representative as outlined. in the disciplinary code.
25. According to the reasoning the Chairman, actually made a report regarding the incident. The facts are in his fingertips. In any event, if at the hearing he will be prejudiced or treated unfairly the disciplinary code, provides. for an Appeal. He can still Appeal to higher authority, which will consider the grounds of his Appeal. In our view, it would be quite premature for us, to allow an external representation or deviation from the code, just solely on the nature in which the charges have been framed.
25 .1 There are no facts before us, outlining that there is a· certain degree of factual and legal com:plexitiinvolved in the nature of the charges. Thie employer is also [represented internally, so it appears to us that the ground. is level. The co_nsequences of an-adyerse finding, will flow in the .nature of the evi~ence that would be adduced before the Chairman. The possible sanction is outlined and.regulated by_ the code.- The code also provides .foran appeal _in the event . there is procedural irregularity, in the manner in which the disciplinary hearing would conducted. The Chairman is also competent to deal with all those issues.
25 .2 We are also not of the view that there will be prejudice, to the employee in the manner in which the disciplinary hearing will be conducted, if legal representation is refused. This is moreso because the - employer as well, has not involved an extrenal.legalrepresentative, This is factual enquiry before an independent Chairman and he has not taken a decision yet; on the merits.
25.3 It is our view, that no exceptional circumstances were submitted before court to warrant that the court should intervene.
26. Deal with the issue of duplication of charges.
26.1 The Chairman in his .judgment, dealt with the issue of the duplication of charges. He ruled that the charges are not duplicated although they emanate fromthe same incident. We cannot find fault with his reasoning.
26.2 Charge 1: Serious Misconduct
The facts appear to be the same, emanating from the alleged Applicant's conduct, that he intentionally and/or maliciously drove his motor vehicle towards a fellow employee, one Doctor Mamba who sustained injuries as a result of conduct was uncalled for and unnecessary, thus putting the life of tlie said employee in danger. The essence of this· charge is the driving. the · motor vehicle towards the said fellow employee Doctor Mamba.
26.3 Charge 2: Serious Misconduct
This charge again emanate from the same facts. The difference of this charge, is that the said fellow- employee Doctor Mamba, other than him sustaining injuries he had to be treated of his injuries, at the costs of the employer. The Applicant apparently exposed the company to unnecessary medical costs. Over and above, the Applicant is alleged to have put the company's name to disrepute. Therefore, in our analysis, another angle is being brought to the same facts, and that angle is the medical expenses and· also putting the company name into disrepute. In our view, this is not a duplication of the previous charges.
26.4 Charge 3
There is another angle that is brought by this charge, although emanating from same incident. The issue of victimization, intimidation and threatening and or menacing behavior is brought forth. It emanates from the wording of the charge and it pertains to the Applicant's alleged conduct, that he exhibited towards the alleged victim. What this· charge seems to say is that the Applicant's conduct post the incident in charge 3, he uttered word "bloody Strawu'' which then portrays a certain unbecoming conduct that was allegedly exhibited by Applicant after the accident. This charge brings in another angle to the same incident. We again find no unreasonable in the manner in which the Chairman ruled that it is not a duplication, because even in our consideration as outlined above, it does not appear to be a duplication.
26.5 Charge 4
The charge ofvictimization pertains to the nature of words "bloody strawu" being categorized to racist, sexiest and behavour that promote disharmony in the work place, which is different from the other charge where the company wanted to discipline against threatening and menacing behavior. This one is takes another where the employee is called upon to explain racist,· sexiest and behavour that promote disharmony in the work place. We can't find fault with the Chairman, that warrants that the manner in which he decided the issue of this charge be reviewed,
26.6 Charge 5
This charge in as much it emanates from the same incident of the motor vehicle, but it now seeks to deal with the conduct- of the Applicant whereby he failed to comply with the company safety rules · arid regulations. in the same conduct of driving the motor vehicle. In our view, the charges are not duplicated. In any event, the company would then unlawful split these charges. This court cannot speculate on how Chairman would deal with this issue when the evidence is led before him; The employee should present himself and demonstrate at the hearing that these charges will attract double punishment and the Chairman will rule accordingly. In the event the initiator would split the charges and the employee is prejudiced at the sentencing stage, he could still· appeal using those· grounds of unnecessary splitting. It is does not qualify as an exceptional circumstance to warrant this court to intervene in uncompleted disciplinary hearing .. There is still a remedy that is open to the employee.
27. CONCLUSION
After considering all the aspect of this case, we are not persuaded that this is deserving case where the court must intervene in an uncompleted disciplinary hearing and interfere with the discretion exercised by the Chairman to refuse external representation.
28. ORDER:-
28.1 The Applicant's application is hereby dismissed.
28.2 There is no order as to costs.
28.3 The members agree.
B.W MAGAGULA
ACTING JUDGE OF THE INDUSTRIAL COURT OF· ESWATINI
For Applicant: Mr. T. I NDLOVU (DLAMINI.;.NDLOVU LABOUR LA:W CONSULTANT)
For 1 ST Respondent: Mr .. H. Magagula (ROBINSON BERTRAM)
