IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE In the matter between: CIVIL CASE NO. 2612/06
TYRES IN MOTION AND GARAGE (PTY) LTD T/A BLUE WATERS GARAGE 1st APPLICANT and
BONGANI S. DLAMINI N.O. CONCILIATION MEDIATION & ARBITRATION COMMISSION ELIZABETH MSIMANGO 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT
CORAM FOR THE APPLICANT FOR THE 3rd RESPONDENT FOR 1st AND 2nd RESPONDENTS Q.M. MABUZA - JUDGE MR. M. SIBANDZE MR. S. MADZINANE NO APPEARANCE
JUDGMENT 1/6/07
[1] This application seeks an order in the following terms: That the arbitration Award of the 1st Respondent, awarded on the 26th April 2006 be and is hereby-reviewed corrected or set aside. Costs of this application. [2] The Applicant carries on business in Nhlangano and is engaged in the business of retailers of petroleum and petroleum products. [3] The background of the matter is that the Applicant terminated the services of 3rd Respondent on the 4th July 2005. She then reported a dispute on the 19th October 2005 to the 2nd Respondent (CMAC) wherein she challenged the fairness of the termination. She also claimed compensation and various terminal benefits. [4] Thereafter the Applicant and the 3rd Respondent consented to arbitration of their dispute by and under the auspices of the 2nd Respondent. [5] The 2nd Respondent appointed the 1st Respondent to arbitrate on the matter which was duly heard. The 1
st
Respondent issued an arbitration award on the 27th April 2006. [6] The 1st Respondent found the termination of the 3rd Respondent both procedurally and substantially unfair and awarded the 3rd Respondent compensation and terminal benefits. [7] It is this decision which is sought to reviewed and set aside. [8] The bone of contention is the "rolling over" of cash which the employees of the Applicant were engaged in, in order to cover cash shortages. [9] This practice of "rolling over" cash is where employees receiving cash on behalf of their employer will either experience shortages or themselves indulge in theft of moneys received on a particular day and then use the money from the next day's takings to cover the previous day's shortage. [10] It is alleged that in the Applicant's business the 3rd Respondent and some of her colleagues concealed shortages by moving cash from person to person, one employee paying for another employee's previous days
shortage, resulting in a shortage of that employees takings for that particular day, which would in turn be covered by another employee the next day. [11] This so Applicant states amounts to an act of dishonesty in that employees receiving cash are obliged to hand over all cash received to the Applicant daily and to record their own takings correctly and not as the takings of other employees. [12] The 3rd Respondent denies that her act of "rolling over cash" was an act of dishonesty but was used to cover shortages pursuant to a credit privilege (policy) that was extended to certain customers of the Applicant pending payment by that customer. She also states that this practice was done with the approval of the supervisors at Applicants undertakings. She also says that this practice had been in existence from the time of her employment on the 23/8/2003 and throughout her employment. [13] The 3rd Respondent's case seems to revolve around the fact that Hlobile Dlamini a supervisor of the Applicant should have been called to give evidence at the arbitration proceedings. I agree, including herself. She could have requested the 1st Respondent to call him if she feared being rebuffed by him.
[14] It is difficult for me to make a finding on the status of the minutes of the disciplinary meeting as they are not "a question and answer" record. However my view is that had the 3rd Respondent made a strong issue of the instruction from Hlobile Dlamini, this would have been apparent ex-facie the minutes. The 3rd Respondent and her representative seemed to have taken a complacent attitude and did not challenge Hlobile Dlamini strongly about his instruction. A reasonable conclusion is that there was no such instruction or if there was the 3rd Respondent knew that it was patently wrong. The finding of the 1st Respondent should have been likewise. [15] The issue that this court has been asked to decide is whether or not the Applicant was given a fair hearing by the 1st Respondent. [16] The 1st Respondent was tasked with the mandate to decide whether or not the 3rd Respondent was unfairly dismissed. In arriving at a decision he took into account irrelevant considerations which had the effect of reviewing the disciplinary proceedings. [17] He should have applied his mind on considerations relating to the alleged unfair dismissal. These
considerations are found in Section 36 (b) of the Employment Act 1980 which states that: "... it shall be fair for an employer to terminate the services of an employee for any of the following reasons ... because the employee is guilty of a dishonest act".(emphasis added) [18] The major consideration in casu relating to dishonesty is that involving the practice of "rolling of cash". Is it a dishonest act or not in terms of the above cited section? If it was dishonest the next inquiry would have been did the Applicant act reasonably in terminating the 3rd Respondent's services? [19] In determining the above the 1st Respondent did not take into account the provisions of Section 11 (1) of the Industrial Relations Act 1/2000 (as amended) which provides that the court shall not be bound by the rules of evidence or procedure which apply in civil proceedings. [20] In the event I find that the 1st Respondent failed to apply his mind to this matter and the result thereof was that the Applicant was not given a proper hearing. [21] The order of this court is:
(a) The arbitration award of the 1st Respondent awarded on the 26th April 2006 is hereby set aside and the matter is referred back to CM AC. (b)CMAC is hereby directed to appoint a senior attorney or counsel qualified to act as a judge of the Industrial Court of Swaziland to arbitrate in this matter. (c)The 3rd Respondent is hereby ordered to pay the applicants costs herein.
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