CONCILIATION, MEDIATION AND ARBITRATION COMMISSION (CMAC)

HELD AT MANZINI                  MNZ 667/07

 the matter between:-

TRUELY DLUDLU                                 APPLICANT

And

ACKERMANS STORE                              RESPONDENT

Coram:

Arbitrator      		:    LORRAINE ZWANE
For Applicant     	:    REUBEN NDLANGAMANDLA
For Respondent   	:    MOABI MOTAUNG

ARBITRATION AWARD

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1.   PARTIES AT HEARING

1.1  The Applicant is Truely Dludlu, an adult Swazi female of Ezulwini, Hhohho District. Mr Ndlangamandla duly represented the applicant.

1.2  The Respondent is Ackermans Store, a company duly registered and incorporated in terms of the company laws of Swaziland, Manzini branch, District of Manzini.

2.   THE ISSUE IN DISPUTE

The issue for determination is whether the Applicant was unfairly dismissed by the Respondent.

3.   BACKGROUND TO THE DISPUTE

3.1  The Applicant lodged a dispute with the Commission (CMAC) on the 16th October 2007.
3.2  The  dispute  was  certified  as  unresolved  after conciliation  and  thus  a  certificate  of  unresolved dispute was issued on the 11th December 2007.

3.3  I  was  subsequently  appointed  to  arbitrate  in  the matter.

3.4  I then scheduled a pre-arbitration meeting for the 27th October 2008.  On that date both  parties were  in attendance and I duly explained the purpose of such meeting and process of the actual arbitration hearing.

3.5  The hearing was scheduled for the 2nd December 2008 by consent of the parties. However on that date the applicant and/or her representative made no show at the hearing.

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3.6  On the 20th January 2009 and the 24th February 2009, respectively, the hearing could not proceed due to the non-attendance of respondent's representative, who on the latter occasion gave a reasonable explanation for his non-attendance.

3.7  On the 24th June 2009 the matter finally proceeded until it was accordingly finalised on the 15th July 2009, which was the agreed date for submission of written heads of argument by the parties.

4.   EVIDENCE AND SUBMISSIONS APPLICANT'S CASE

4.1  Applicant alleges that she was unlawfully and unfairly dismissed from her employment by the Respondent, and she claims  payment of terminal  benefits  and maximum compensation for unfair dismissal.

4.2  The Respondent denies that the Applicant's dismissal was unlawful and unfair and avers that the Applicant was dismissed "for gross misconduct, in that during the month of August 2006, she over and under-rang on her till which conduct was against company policy and procedure which directly causes loss in stock and monetary loss."

4.3  The applicant led evidence to prove her case.

4.4  Respondent,  on  the  other  hand  called  in  two witnesses,  namely,  Hanlie  Erasmus  and  Sonia Johnson to testify to the events leading to applicant's dismissal.

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4.5  TESTIMONY OF TRUELY SIBONGILE DLUDLU

4.5.1  The testimony of Applicant can be summarized as follows:

4.5.1.1   She was employed on the 27th June 1999  as  a  shop  assistant  and/or cashier by the respondent earning a gross salary of E2 816.64 per month.

4.5.1.2   Sometime in October 2006 applicant was suspended and later informed of the charges preferred against her.

4.5.1.3   She  was  subsequently  invited  to  a disciplinary hearing scheduled for the 15th December 2006.  At the hearing those  present were  Hanlie  Erasmus, the  chairperson,   Benedict   Dludlu, stores manager who was the complaint and applicant.

4.5.1.4   According to Applicant she was denied the right to representation by a union official.

4.5.1.5   She  further stated  that the  enquiry had been scheduled for 10:00 a.m. but commenced   at   12   noon.   She elaborated that she was amongst four (4) employees of the respondent to be tried on that date.

4.5.1.6   The   evidence   presented   by   the respondent was in the form of a video footage  which  was  played  but  was initially not visible. She expatiated that she was unable to see herself as her

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back was against the video but that later the video became clearer.

4.5.1.7   The  chairperson  compelled  her  to admit wrongdoing on the basis that she was in a haste to conclude the proceedings. That as a result of the compulsion  she  ended  up  admitting guilt.

4.5.1.8   Applicant  said   the   Manager   had notified   all   employees   of   the respondent that if one committed any wrongdoing he or she would sign three (3)  written  warnings  prior to  being called to a disciplinary enquiry.

4.5.1.9   That if an employee incurred a short or an  over,  which  was  against  the respondent's policy, the Manager will first have discussions prior to issuing a verbal  warning,  which  warning  was issued  without  being  called  to  a disciplinary hearing.

4.5.1.10  Truely  stated  that  she  saw  herself visibly on the video and also due to the clothes she had donned on that date in question.

4.5.1.11  She said  she  had  been  issued  with written warnings previously for under-ring which were not many as such a rare occurrence

4.5.1.12  The   Respondent   never   afforded applicant representation when called to sign a written warning.

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4.5.1.13  The charge faced was that of gross misconduct in that on the 7th August 2006  applicant had  over and  under rung  her  till,  which  conduct  was against company  policy,  resulting  in monetary and stock loss.

4.5.1.14  She said that she did not understand the charge preferred against her as it was ambiguous and equivocal, in that it did not mention the precise offence she was alleged to have committed.

4.5.1.15  Applicant stated that she did not recall the items she was accused to have over  and  under  rung  due  to  the passage of time.

4.5.1.16  The  chairperson  was  in  control  of playing the video footage and never explained what was happening on it. The   customer   involved   in   the transaction was not visible.

4.5.1.17  That the video clips were selective in that it only showed  when  applicant committed errors and not when it was rectified.

4.5.1.18  The video showed one transaction of over-ringing wherein a customer came to the store for a lay-bye and applicant issued a slip to the customer to sign it. Applicant then  mistakenly  gave  the customer the lay-bye slip as if she had in  cash  together  with  the  item purchased.

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4.5.1.19  No evidence shown in the video of an over-ring nor under-ring.

4.5.1.20  That the only transaction shown was for a misringing, which term existed at the respondent's undertaking.

4.5.1.21  The Respondent produced the video as the  only  evidence  to  prove  and substantiate the offence applicant was alleged   to   have   committed.   No witnesses called in.

4.5.1.22  Applicant said  that she  admitted to wrongdoing as she was co-erced  by the chairperson and not being familiar with the disciplinary process she ended up giving in.

4.5.1.23  During her time of employment when working on the till it was procedural to call  the  supervisor  or  manager  to conduct  an  exchange  or  correction. However, during the enquiry the part where  the  manager  rectified  her mistakes was not displayed.

4.5.1.24  The respondent had installed cameras at the store, which all employees were aware of as they had been notified of the  installation  and  cautioned  to conduct themselves appropriately.

4.5.1.25  Applicant   later   recalled   another transaction shown on the video which was of an exchange and had to call her supervisor to conduct it. She explained

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that the customer was not visible on the video.

4.5.1.26  Herein,  applicant conducted  a  direct exchange. She was elaborated that at times   when   one   requested   the supervisor to do an exchange he would state that he is busy and instruct her to proceed with it, which however was against company policy.

4.5.1.27  She said in the exchange incidence the manager was at fault but that due to the selective playing of the video it was not shown when she requested authorization.

4.5.1.28  The chairperson afforded applicant an opportunity  to   cross-examine   the complainant but due to her state of shock she was unable to do so.

4.5.1.29  Applicant re-iterated that on the very date of her enquiry, the chairperson had  other  three  (3)  enquiries  to preside over. Further, that her enquiry had been scheduled for 11:00 a.m. but only started around 12:45 p.m.

4.5.1.30  That the chairperson apologised for the late start and explained that she had to   rush   applicant   through   the proceedings.

4.5.1.31  Consequent to being  rushed through the  proceedings  she  only  had  an opportunity   to   admit   to   any wrongdoing showcased  by the video

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but had no time to explain that she has rectified the mistakes complained about.

4.5.1.32  According to Truely, the atmosphere at the  hearing  was  not  conducive  or friendly. On proceeding to the venue of the enquiry/ she did so in the presence of her colleagues and customers.

4.5.1.33  She said she was not given a chance to state her side of the story or defend herself  but  was  permitted  to  state mitigating factors.

4.5.1.34  Subsequently, applicant was dismissed and she appealled to such decision. On appeal, one Sonia notified her and her representative from SCAWU that the appeal  chairperson,  namely,  Mirriam was unavailable and had requested her to take the minutes and then fax same to her.

4.5.1.35  That the appeal chairperson upheld the verdict of dismissal.

4.5.1.36  During   cross-examination   applicant defined   the   terms   over-ring   as meaning ringing a higher price than the actual price of the item. Under-ring as ringing a price below that of the actual item.

4.5.1.37  She  denied  having  committed  the charges preferred against her.

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4.5.1.38  Applicant stated that she had pleaded guilty  during  the  hearing  to  having caused the respondent to suffer stock loss because of the transactions shown to her on the video.

4.5.1.39  Respondent    afforded    her    the opportunity to present her side of the story.

4.5.1.40  That the chairperson of the disciplinary enquiry explained to applicant that she could not be represented by a union official but s co-employee as per the company policy.

4.5.1.41  Respondent   gave   applicant   short notice to attend the enquiry, 48 hours, which  was  not  adequate  time  to prepare for the case, which was one of her appeal grounds.

4.5.1.42  She  said  the  decision  of  dismissal metted   against   her   was   not appropriate  in  the  circumstances  as the respondent had not issued her with three (3) written warnings as provided by the law.

4.5.1.43  Respondent  was  inconsistent  in  the metting of discipline or punishment its employees, in that four (4) employees had been charged with similar offences but three (3) including applicant were dismissed  and  one  (1),  Constance Dube, not.

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4.6  TESTIMONY OF ROSE NTOMBI NGUBENI

4.6.1   She worked with applicant at the respondent's store at the Manzini branch since its inception in 1994.

4.6.2   She was dismissed together with applicant by respondent for gross misconduct, in that she ha over and under rang on her till.

4.6.3  That the respondent charged four (4) of its employees  for a  similar offence  as  stated above, namely, Applicant, Masiza, Constance and herself.

4.6.4  According  to  Rose,  her  hearing  had  been scheduled for the 15th December 2006 at noon but only started between 2:00 p.m. to 3:00 p. m.

4.6.5   On  commencement  of  the  hearing  the chairperson, Hanlie Erasmus announced that she was in a hurry to return home at 4:00 p. m. which comes as a surprise to Rose as she had another enquiry to preside over after her own.

4.6.6  She expatiated that Erasmus further informed her to respond quickly when  questions are posed as she was in a haste to conduct the proceedings.

4.6.7  All the disciplinary hearings proceeded but not on the scheduled times.

4.6.8  Subsequently  the  applicant,   Masiza  and herself were dismissed but not Constance.

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4.6.9  At the time of being charged, two (2) of the charges were similar, which were the charges of  Applicant  and  her  own  but  had  no opportunity to view that of Constance and Masiza's.

4.6.10 During cross-examination she stated that she knew that applicant and  her charges were similar  when  they  exchanged  the  charge sheets.

4.6.11 She said that both (applicant and herself) of them were taken aback by the charges as they did not understand them.

4.6.12 She conceded that albeit the charges being similar but the incidences in question were different.

4.6.13 She  never  complained  to  the  chairperson about being rushed through the proceedings as she thought or reckoned it was procedural to do so.

4.7  TESTIMONY OF HANLIE ERASMUS RESPONDENT'S CASE

4.7.1  She was the chairperson  in the disciplinary enquiry of applicant.
4.7.2  At commencement of the enquiry applicant requested  to  bring  in  a  union  official  to represent  her  in  the  proceedings,  which request she denied or refused on the ground that  she  could  be  represented  by  a  co-

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employee  as  per the  invite  to  attend  the hearing and company policy.

4.7.3  Applicant pleaded guilty to the charges when she read them out to her.  Later, she also found her guilty of the charges.

4.7.4  She   said   she   afforded   applicant   the opportunity to present her side of the story, which she did. She elaborated that applicant never called  any  witnesses  notwithstanding being given the chance to do so.

4.7.5  Applicant was  given  adequate  or sufficient notification of the hearing as the minimum notification period is 24 hours as entailed in the respondent's disciplinary code.

4.7.6  That applicant never raised issue about the notice given to her during the hearing.
4.7.7  Respondent relied on the video evidence only during  the  hearing,  which  evidence  was presented by the initiator.

4.7.8  The  video  footage  was  played  during  the hearing and that applicant appeared in it.
4.7.9  At the end of the video applicant confirmed that she was the person on the video and further admitted guilt to the charges preferred against her.

4.7.10 She expatiated that applicant pleaded guilty twice, firstly, when the charges were read out. Secondly, after seeing the video footage.

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4.7.11 The respondent had suffered both monetary and stock losses in the incidence of applicant.

4.7.12 She  communicated  her  findings  which  she faxed through to the respondent.

4.7.13 The  sanction  imposed  to  applicant  was  a dismissal as the misconduct she was charged with is regarded highly at the respondent's undertaking as it causes stock and monetary loss to the company. Further, that it damages the trust relationship.

4.7.14 In the premises, dismissal was the appropriate penalty under the circumstances.

4.7.15 Throughout   the   proceedings   applicant admitted to wrongdoing.

4.7.16 During cross-examination she stated that the charges were read by the initiator. Later she changed time and said she was not certain who read the charges between the initiator and herself.

4.7.17 She said she was not in a position to dispute that  she  presided  in  four  (4)  disciplinary hearings on the 15th December 2006.

4.7.18 That the people present at the hearing were, Applicant, Benedict Dludlu and herself.
4.7.19 She  denied  having  compelled  applicant  to admit guilt.

4.7.20 She stated that she did not recall apologizing for the late start in the hearing and rushing applicant through the proceeding.

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4.7.21 Later  on,  she  vehemently  denied  having rushed applicant through the proceedings.
4.7.22 On being quizzed whether applicant had been given the opportunity to state her side of the story, she responded by stating that both the initiator  and  applicant  were  afforded  the opportunity to present opening statement.

4.7.23 The video was not audible, thus one could not hear what was being said.

4.7.24 It was not company policy that a manager could  authorise  his  subordinates  to  do  an exchange.

4.7.25 She  explained 'under-ring' as  meaning  not ringing an item or stock on the till. Over-ring as not ringing the item too and thus giving the customer an additional item.

4.7.26 She elaborated that these two terms were the same  terminology,  as  the  same  action  is taken.

4.7.27 She  had  no  recollection  as  to  how  many transactions Applicant admitted guilt to and the transactions she conducted.

4.7.28 She further did not recall the monetary loss incurred by the respondent as a result of the misconduct committed by applicant.

4.7.29 Similarly, with the kind of T-shirt involved in one of the transactions and its value, she had no recollection of.

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4.7.30 According  to  Erasmus,  overs  and  unders resulted in both monetary and stock losses.

4.7.31 The  misconduct  committed  by  applicant damaged the trust relationship as applicant was visible on video committing the offence and further admitted guilt to wrongdoing.

4.7.32 Later stated that no monetary value had been placed on the stock in question.

4.7.33 That the customers were visible on the video footage.

4.8  TESTIMONY OF SONIA JOHNSON

4.8.1  She  is  employed  by  the  respondent  as manager responsible for the Mbabane branch.

4.8.2  She  chaired  the  appeal  hearing  of  the applicant.

4.8.3  Applicant attended  the  appeal  hearing  and was not represented.

4.8.4  The sanction of dismissal was appropriate in applicant's case.

4.8.5  That applicant had  been  afforded  adequate time to  prepare for the  enquiry  as  it was company  policy  that  employees  be  given twenty-four  hours  notice  to  prepare  for a hearing.  On  this  basis  she  dismissed  this ground of appeal.

4.8.6  Similarly with the second ground of appeal, that applicant was denied representation of her choice.  She dismissed  it as employees

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were permitted representation internally, and not externally.

4.8.7  Applicant never requested  for a  change of venue or objected to the venue during the enquiry which prompted her to dismiss the third  ground  of  appeal,  that  she  felt embarrassed being tried in the same store in which  the  offence  was  said  to  have  been committed.

4.8.8  She vehemently denied any inconsistency on the metting of discipline of the respondent's employees and stated that applicant knew the company's policies and procedures regarding stock control and should not have adhered to an irregular instruction.

4.8.9  That applicant never raised any objection to being rushed through the proceedings. In any event  she  had   pleaded   guilty  to  the transgressions.

4.8.10 Applicant  was  afforded  the  opportunity  to present her side of the story.

4.8.11 Applicant had put the company into serious risk by her actions.

4.8.12 On being slow the minutes of the appeal Sonia conceded that applicant's representative had been present at the appeal hearing.

4.8.13 She stated that the  inconsistency applicant complained about related to the manager and not to Constance.

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4.8.14 Later,  she  stated  that  the  respondent considered theft and fraud as a dismissable offence regardless of the value of the item in question, which was known by applicant.

4.8.15 That prior to dismissal the respondent first afforded an employee who had been charged with misconduct, three (3) counseling sessions and trainings. Afterwhich the employee will be given a verbal warning followed by a written warning, then a disciplinary hearing.

4.8.16 She conceded that the aforegoing had never been complied with in applicant's case.
4.8.17 She admitted that applicant had stated that she  was  a  first  offender  when  given  the opportunity to state mitigating factors.

4.8.18 She stated that the reason she could not trust applicant was because she had been involved in theft and fraud.

4.8.19 On  being  quizzed  that  she  had  erred  on concluding that applicant had committed theft as that had not been the offence she was charged with, she conceded.

4.8.20 She  re-iterated  that  applicant  had  pleaded guilty to the wrongdoing as evidenced in the record of the hearing.

4.8.21 The  offence  committed  by  applicant  was dismissable at first instance.

4.9  Mr  Ndlangamandla  argued  that  the  dismissal  of applicant  on  the  15th  December  2006  by  the

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respondent on the charge of gross misconduct was unfair both substantively and procedurally.

4.10 He further argued that the respondent had failed to present any evidence to prove the charge.

4.11 He argued further that the evidence relied on by the respondent to show that applicant had committed any wrongdoing was a video tape which was suspect as it only played selective clips.

4.12 He submitted further that both respondent's witnesses had failed to state precisely the monetary and stock losses suffered by the company.

4.13 He further submitted that the procedural irregularity related  to  applicant  being  rushed  through  the proceedings and being compelled to make admissions.
4.14 Mr Motaung,  representative  of respondent on  the other hand argued that applicant's dismissal was fair both substantively and procedurally.

4.15 He argued that the applicant had admitted  in the enquiry to wrongdoing after being shown the video footage.

4.16 He  further  contended  that  the  charge  preferred against applicant was considered in a serious light by respondent.

4.17 He contended further that although no specific loss could  be  attributed  to  applicant  directly,  however evidence of stock losses suffered by the company had been led, and that the offence committed by applicant had a bearing on such losses.

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4.18 He further submitted that the respondent had a zero tolerance to offences of this nature, which justified the dismissal of applicant.

4.19 He submitted that the evidence of applicant that she had  been  rushed  through  the  proceedings  was baseless as it had been rebutted by that of Hanlie Erasmus.

4.20 He argued further that the arbitrator should not put much weight on the fact that Hanlie had to preside in other  hearings  on  the  same  date,  as  applicant's proceedings  were  curtailed  by  the  fact  that  she admitted guilt to the transgressions.

4.21 He argued further that applicant had been afforded all the rights to a fair hearing. She had been right to representation by a co-employee.

5. NALYSIS OF EVIDENCE AND SUBMISSIONS

5.1  The Applicant  has  applied  to the  Commission  for determination of an unresolved dispute. She alleges in her statement of claim that she was unlawfully and unfairly  dismissed  from  her  employment  by  the respondent,  and  she  claims  payment  of terminal benefits  and  maximum  compensation  for  unfair dismissal.

5.2  In its reply, the respondent denies that the Applicant's dismissal was unlawful and unfair and avers that the Applicant  was  dismissed  "for gross  misconduct  in which she over and under rang on  her till during August  2006,  resulting  in  financial  losses  to  the company."
5.3  It is common cause that:

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5.5  Following  a  disciplinary  hearing  the Applicant was found guilty of the charges against her and summarily dismissed.

5.6  In her evidence in chief, Erasmus stated that the Applicant  was  dismissed  for  misconduct  which resulted in both stock and monetary losses to the respondent. Under cross  examination, she added that  she  was  dismissed  as  the  misconduct  she committed damaged the trust relationship. Erasmus said that the Applicant admitted guilt to the charge at the disciplinary hearing. She further stated that she could not recall the transactions done by applicant and as to which ones she made an admission of guilt too.  Furthermore,  that  she  could  not  recall  the monetary loss incurred by the respondent as a result of the alleged misconduct of applicant and the type of T-shirt involved in one of the transactions.

5.7  Johnson on the other hand evidenced that applicant was dismissed for theft and fraud.
5.8  Rather surprisingly, the respondent omitted to call as a witness any of the customers recorded in the video footage. There is nothing in the evidence to suggest that these customers could not be traced.

5.9  This omission means that there is no direct evidence to prove any mishap with the transactions conducted by applicant. The respondent instead relies on two items of direct evidence:

5.9.1   the fact that applicant admitted guilt to the charge(s); and

5.9.2  the   video   played   showing   applicant committing the misconduct

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5.10 The Applicant testified, and Mrs Erasmus agreed, that the video clips were not clear and that the sound was not audible.

5.11 In her testimony the Applicant denied that she had committed any wrongdoing, of which she was later dismissed  of.  She said  she  admitted  guilt to the charges during the disciplinary enquiry as she was compelled by the chairperson to do so.

5.12 Nevertheless, the respondent has failed in my view to establish on the evidence that the Applicant was guilty of any misconduct involving under and over-ringing. No evidence  was adduced  in  proof that she  was responsible for missing stock, or that she caused the respondent to suffer any monetary loss.

5.13 Johnson said the Applicant was dismissed for theft and fraud. However, this is not the case pleaded in the Respondent's Reply. Furthermore, it is not clear ex-facie the papers on record or evidence tendered what applicant was dismissed for,  whether it was negligence, failure to observe company procedures and policies.

5.14 In  any  event,  an  employee  cannot  be  fairly terminated for poor conduct or work performance unless he or she has received three prior written warnings for such offence - see section 36 (a) of the Employment Act. It is common cause the Applicant had not been issued with three written warnings prior to her dismissal and related to the charge she was dismissed of.

5.15 Johnson said the Respondent had breached its own disciplinary code in that the sanction metted was not in line with that prescribed by the code. Which was exhibited before me, which provided that an employee

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who had been charged with the same misconduct as that of applicant, three counseling sessions, followed by a verbal and a written warning. This evidence was corroborated by Applicant.

5.16 However, courts and arbitrators are not bound by disciplinary codes as they are merely guidelines.

SEE:    JOHN    GROGAN    "DISMISSAL", REPRINTED 2004 AT 141.

5.17 I find that the respondent has failed to prove that the reason for the dismissal of the Applicant was one permitted by section 36 pf the Employment Act. I find that her dismissal was substantively unfair.

5.18 The Applicant did not raise any material issue with regard to procedural fairness,  and  I find that her disciplinary hearing was procedurally fair.

5.19 She is thus entitled to her notice, additional notice pay and severance allowance.

5.20 On the question of compensation for unfair dismissal, the Applicant struck me as a rather naive and simple person who was thrust into a position of responsibility as cashier without proper training. In my view this accounts to a large extent for any short comings in her work performance. She served the respondent faithfully for almost eight years, and her dismissal was obviously a severe setback. She has not been able to find employment subsequently. I consider that an  award  of  six  months  salary  is  appropriate compensation in all the circumstances.

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6.   THE AWARD

6.1  The Respondent is hereby ordered and/or directed to pay Applicant the following:
a.	Notice pay            				E 2 816.64
b.	Additional notice pay                 		 	E 2 599.98
c.	Severance allowance    				E 6 499.94
d.	Compensation for unfair dismissal (6 months)    - E28 166.40
TOTAL    				  	 E40 082.96

6.2  The above amount is due and payable at CMAC offices on or before the 16th October 2009.

6.3  No order as to costs.

DATED AT MBABANE ON THIS 10™ DAY OF SEPTEMBER 2009.

LORRAINE ZWANE ARBITRATOR