IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE
CASE NO. 139/2004
In the matter between:
MARIA VILAKATI FIKILE DLAMINI
1ST Applicant 2nd Applicant
and
NGWENYA GLASS (PTY) LTD
Respondent
CORAM:
P. R. DUNSEITH JOSIAH YENDE NICHOLAS MAN AN A
PRESIDENT
MEMBER
MEMBER
FOR APPLICANT FOR RESPONDENT
N.G. DLAMINI M. SIBANDZE
JUDGEMENT - 16/07/2008
The Applicants have applied to the Industrial Court for determination of an unresolved dispute, claiming that their services were unfairly terminated by the Respondent. They seek payment of maximum compensation,for unfair dismissal and statutory terminal benefits, and refund of monies which they allege were unfairly deducted from their wages.
The Respondent alleges that the Applicants were dismissed in terms of section 36 (b) of the Employment Act for committing a dishonest act, and that taking into consideration all the circumstances of the matter it was fair and reasonable to terminate the Applicant's services.
The Respondent manufactures handmade tableware, ornaments and curios from recycled glass. It was established in about 1987 by the Prettejohn family.
The 1st Applicant was employed in 1987 as a grinder. She worked continuously for the Respondent for 15 years until her dismissal on the 4th November 2002.
The 2nd Applicant was employed in 1994 as a waitress. She worked in the Respondent's restaurant beside the shop where the glass produce was sold. She worked continuously for the Respondent for 8 years until her dismissal on the 4th November 2002.
The events leading to the dismissal of the Applicants began when the Respondent received an anonymous letter accusing employees of thieving from the company. The letter mentioned one employee Vuyisile Mkhonta by name. On 21 October 2002 the Respondent's managing director Chas Prettejohn and the production manager Sibusiso Mhlanga went to Mkhonta's house. They found more than 30 glass products, which they confiscated. They then decided to search the homes of other employees as well. They telephoned a manager Rod Conway to arrange that all the women employees stopped work and gathered in the carpark. On their arrival at the factory, all the women were instructed to board two vans. They were then driven to their respective homes. At each home, Prettejohn and Mhlanga entered the house with the employee who resided there and confiscated Ngwenya Glass products which were found there.
In the case of the 1st Applicant, Prettejohn confiscated three glass fish, a small glass pot, a glass zebra and two serviette holders. At the house of the 2nd Applicant three glass fish were confiscated,
About seven houses were visited. There was no time to visit all the employees' homes due to the lateness of the hour. The employees were taken back to the company premises. The security gate was locked. The employees were told that because stolen company products had been found in their houses, they would be required to sign admissions of guilt Employees whose houses had not been visited were told that those who had stolen company products should also sign admissions of guilt and bring the products the following day.
An admission of guilt document was prepared by Chas Prettejohn whilst the employees waited outside his office. The document reads as follows:
*/.......„.........-.. hereby admit to having stolen goods from Ngwenya
Glass whilst working there. I will return all the stolen goods in my possession on 22/10/2002."
Eleven employees, including the two Applicants, entered the office and signed this document. Four employees declined to sign it and waited outside. Thereafter the employees were released to return to their homes,
On the following day, the Applicants came to work as usual. During the course of the day they (and the other employees who signed the admission of guilt) were individually called before a meeting of senior management where they were asked about the products found at their homes,
On or about the 24th October 2002 Mrs. Alex Prettejohn, a founding director of the Respondent, addressed all the women employees and expressed her disappointment at the conduct of those who had stolen company products.
The Respondent had paid the Applicants a profit-sharing bonus prior to the events of 21 October 2002. On the October 2002 payday, the amount of the bonus paid was deducted from the Applicants' wages without their consent.
The management took a decision to dismiss all the employees who had admitted to theft of company products. No disciplinary hearings were convened. The Applicants received notice of their summary dismissal on the 4th November 2002.
The dismissed employees engaged the services of a labour consultant Moses Dlamini, who wrote a letter to the Respondent on 18th November 2002 complaining that the employees had been punished for their dishonest act by the final warning they received from Mrs. Alex Prettejohn and the recovery of their profit-share bonus, and their
dismissal was "further (double) punishment for one and the same
offence."
16 On 2 December 2002 ten of the dismissed employees (including the
Applicants) reported an unfair dismissal dispute to the Labour
Commissioner. The dispute was transmitted to CMAC for conciliation.
The disputes of eight employees were settled during conciliation. The disputes of the two Applicants were certified unresolved.
It is common cause that the Applicants were employees to whom section 35 of the Employment Act 1980 applied. The Respondent bears the onus of establishing that their services were terminated for fair reason and that it was reasonable in all the circumstances to terminate their services - see section 42 of the Employment Act,
The Respondent avers that it terminated the Applicants' services for committing a dishonest act, which is a fair reason for dismissal in terms of section 36 (b) of the Employment Act. As proof that the Applicants dishonestly stole company goods, the Respondent relies upon four key evidential items:
the finding of company products in the Applicants' homes.
the written admission of guilt signed by each Applicant;
the Applicants' oral admission of guilt at the management meeting held on the 22nd October 2002;
the admissions contained in the letter written by Moses Dlamini dated 18 November 2002.
The finding of Company products in the Applicants' Homes
19. No person has the right to enter a private home without some lawful warrant or consent of the householder - see Halsbury's Laws of England (4th Ed) Vol 11 para 122 and Vol 8 para 843. The Respondent had no lawful authority to enter the Applicants' homes and we find that the Applicants did not consent to their homes being entered and searched.
20. Chas Prettejohn testified in chief that he asked the women employees
for permission to search their homes and they all agreed. In cross
examination he changed his evidence to say that the women were
asked if anyone had any objection, and they said no. The
Respondent's witness Felicity Magagula said Prettejohn did not
address the women at all before proceeding to their homes. We reject
Prettejohn's evidence in this regard. From the testimony of all the
other witnesses it is clear that the Respondent abused its position of
authority as employer to conduct a surprise search of its employees'
homes, with no regard given to the rights or feelings of the employees
and no attempt made to obtain their consent. In our finding, the search
was illegal and constituted an unfair labour practice.
See Mhlongo v AECI (1999) 20 ILJ 1129 (CCMA)
21. Counsel for the Applicants submits that evidence obtained pursuant to
an illegal search is inadmissible in evidence as "fruit of a poisoned
tree." The "poisoned tree" doctrine is part of American law, but it has
not been embraced by our law.
S v Motloutsi 1996 (1) SA 584 (c) at 589.
The illegal search of the Applicants houses took place before the promulgation of our Constitution. In a non-constitutional context, the common law rule in civil cases is that evidence otherwise admissible is not excluded merely because it was illegally obtained.
May: SA Cases & Statutes on Evidence (4th Ed) 208
Nevertheless, the court has a discretion to exclude evidence which has been obtained illegally or improperly.
Shell SA (Edms) Bpk en Andere v Voorsitter, Dorperaad van die Orange Vrystaat Andere 1992 (1) SA 906 (0),
Motor Industry Fund Administrators (Pty) Ltd and Another v Joint & Another 1994 (3) SA 56 (w).
Lenco Holdings Ltd & others v Eckstein & Others 1996 (2) SA 693 N at 704.
The court was not called upon to exercise its discretion whether to exclude the evidence obtained during the Respondent's illegal search of the Applicants' homes because when such evidence was tendered by the Respondent, counsel for the Applicants stated that he did not object to its admission. The evidence was thereafter produced and referred to in the course of the examination and cross examination of a number of witnesses, Not only have the Applicants waived their right to contest the admissibility of the evidence in question, but to exclude such evidence at this late stage might vitiate the whole trial. Much as the court deprecates the illegal search conducted by the Respondent, it will not now entertain the Applicants' belated objection to the evidence obtained.
The Respondent led no evidence to rebut the 1st Applicant's testimony that she purchased the zebra, small pot and serviette holders from the company shop. With regard to the three matching fish the Respondent's production manager said these were samples of a set of fishes produced as trophies for a fishing competition, and were never made available for sale. It was common cause that these samples were kept under 1 Applicant's workbench in a box in the grinding room awaiting crushing.
24 The 2nd Applicant said she retrieved the three glass fish confiscated at
her home from the dump site outside the Respondent's premises. The
tails of the fish were chipped. Sibusiso Mhlanga, Respondent's
production manager said that the company stopped throwing rejects
into the rubbish pit outside the premises in the early 1990's before the
2nd Applicant was employed.
Written Admission of Guilt
The Applicants testified that they were coerced into signing the admission of guilt document. The 1st Applicant said she signed because the gate had been locked and she believed she could not go home unless she signed. She said it was late and she was angry and confused. The 2nd Applicant said she signed because the production manager threatened to call the police and he said they would be dismissed if they didn't sign. Also, she was scared of Chas Prettejohn, and the gate was locked. The Applicants' witness Margaret Mamba said she signed because they were threatened with dismissal and she wanted to go home.
The Applicants and their witness did not give consistent evidence on this issue, and their evidence also contradicted a statement of events submitted on their behalf to the CMAC Commissioner by their representative Moses Dlamini. We do not accept their evidence that they were coerced into signing by threats made by the production manager or the managing director. There was undoubtedly a degree of pressure caused by the lateness of the hour, their desire to go home, and the general disregard of their rights by management.
Nevertheless no employee was prevented from leaving and we accept that the security gate was locked because this was the normal practice after closing time. Four employees declined to sign the document without suffering any consequences. This in itself shows that there was no undue compulsion on the employees and that they were free to refuse to sign if they so wished.
27 Although we deplore the highhanded treatment of the Applicants, we
are unable to find that they were coerced into admitting their guilt. In
our finding, they freely and voluntarily signed the admission document
with full knowledge of what they were signing.
Oral Admission of Guilt
Both Prettejohn and Mhlanga testified that the 1st Applicant was called to a management meeting where she admitted stealing from the company. 1st Applicant denies admitting guilt at the meeting but concedes that she apologized and asked for forgiveness. Making due allowance for cultural notions of respect, asking forgiveness when accused of theft can only be construed as an admission of wrongdoing.
Prettejohn and Mhlanga testified that the 2nd Applicant admitted stealing goods from the shop at the management meeting. 2nd Applicant says she told the management that she obtained the goods at the dump site. No minutes of the management meeting were kept. The managers interviewed about ten women in quick succession. We have difficulty believing that Prettejohn or Mhlanga have a clear recollection after 6 years of what each of the employees told them. We are unable to find it proven on the evidence that 2nd Applicant confessed at the management meeting that she stole the fish from the shop.
Admission in Labour Consultant's Letter
Moses Dlamini represented all the dismissed employees when he wrote to the Respondent on their behalf on 18 November 2002. The reference in his letter to "their committed dishonest act' for which they asked forgiveness conveys a tacit admission of guilt, as does the statement that "other employees who brought back to the company stolen goods have received preferential treatment" Dlamini complains that the employees received double punishment for committing a dishonest act, and at no stage does he plead the innocence of any of the employees.
In our view this letter is evidence that none of the employees, including the Applicants, communicated to Moses Dlamini that they were innocent of the theft for which they had been dismissed and that he should challenge their dismissal on this ground. On the contrary, the whole tenor of the letter conveys an acknowledgment of guilt. The Applicants' report of dispute to the Labour Commissioner, signed by Moses Dlamini, also conveys a similar acknowledgement of guilt.
On a consideration of all the evidence, including the written admissions of guilt, the apology of the 13' Applicant, the letter and report of dispute written by Moses Dlamini on the Applicants' behalf, and the failure of the Applicants to protest their innocence when reprimanded by "Gogo" Prettejohn or to demand return of the confiscated goods, it is our finding that the Applicants did in fact steal property belonging to the Respondent. They admitted their guilt in writing, and they continued to acknowledge their guilt until and after their dismissal.
33 We accordingly find that the Respondent had fair reason to terminate
the services of the Applicants in terms of section 36 (b) of the
Employment Act for committing a dishonest act.
Was it Reasonable to Terminate the Services of the Applicants?
The Respondent did not hold disciplinary hearings for the Applicants. Mr. Prettejohn said he saw no reason to do so because the Applicants had admitted stealing company products.
There appears to have been considerable equivocation by the Respondent's management as to how to deal with the situation:
"Gogo" Prettejohn met with the employees and expressed her disappointment because she regarded them as her own family. She told the employees to go back to work after reprimanding them. The Applicants believed the matter was then closed. If the intention was to dismiss the employees, this meeting served no purpose other than to humiliate them. In our view the meeting with Mrs. Prettejohn rather indicates that at that stage management intended to keep the problem "within the family."
Two of the employees, including Vuyisile Mkhonta, were given written warnings. Vuyisile had been found with more than thirty stolen items. The warnings were later revoked and these employees were dismissed along with the other employees who had signed admissions of guilt.
In the Applicants' letter of dismissal the Respondent states:
"After many meetings with a staff committee, it has been decided that you can no longer be trusted to work at Ngwenya Glass."
Chas Prettejohn said the 'staff committee' was not the statutory works council but a group of senior employees with whom management consulted.
35.4. The Respondent did not dismiss the Applicants until a period of two weeks had elapsed after they signed the admissions of guilt. During this period they were not suspended and they continued working as normal. Over this period of two weeks the management appears to have shifted from an initial inclination to reprimand and/or warn the employees to the decision to dismiss. It is reasonable to conclude from the letters of dismissal that the decision to dismiss the Applicants was influenced by the Respondent's consultations with the so-called staff committee.
The penalty of dismissal is not an automatic consequence of Finding an employee guilty of theft. The question of the appropriate sanction must be given proper and separate consideration. Procedurally, this important part of the disciplinary process requires an enquiry at which the employee should be given a proper opportunity to make representations before an independent chairperson. The Applicants were denied the opportunity to make representations to management, yet management allowed other staff members who had nothing to do with the matter to make representations. The 'staff committee' did not represent the Applicants. The Respondent subjected the Applicants, in their absence, to judgement by their colleagues. Determination of a disciplinary sanction on the basis of the opinions of fellow employees is a practice the court would discourage, since such opinions may be influenced by misunderstandings, vested interests, or petty motives and prejudices unconnected with the actual offence committed. The risk of this occurring is even greater where the consultations take place in the absence of the offenders, without their colleagues hearing their point of view, as occurred in this case.
Chas Prettejohn as managing director must have played a major role in determining the sanction, yet he readily admitted that he was angry and emotional after his expedition had uncovered stolen goods. If a proper enquiry had been held, he would certainly have been disqualified from acting as chairman because of his involvement in the invesigation. Prettejohn said that he felt the level of guilt was the same for all the employees so they all deserved to be dismissed. He said the value of the goods repossessed was in excess of E10,000 and the employees could no longer be trusted. This illustrates the collective approach taken by Prettejohn when deciding to dismiss the Applicants. Caught up in the drama of the collective sting operation, the Respondent's management seems to have lost sight of the fact that the offence of each Applicant was entirely unconnected with the offences of the other employees. There is no evidence of any collective pilfering or collusive theft, and there was certainly no basis for the Applicants to be punished for the offences of other employees. The Respondent did not approach the question of the appropriate sanction by having regard to the individual circumstances of each Applicant and the gravity of their particular offence.
On the evidence, the 1st Applicant was proved to have stolen only three fish which had no commercial value and were destined to be destroyed. The fish had been discarded in a box under Applicant's workbench for some time. The Respondent did not even know they had been taken until it searched the Applicant's house. The Applicant had worked for the Respondent for a period of 15 years. She had a clean disciplinary record throughout this period. Whilst the court does not condone dishonesty in any form, we are not convinced that the 1st Applicant would have been dismissed for so trivial a theft had she not been caught up in the collective condemnation that followed the Respondent's illegal search of its employees homes. We certainly do not find it reasonable or fair that she was dismissed for the theft of goods amounting to E10000-00 by other employees. We not believe the circumstances of the Applicant can be equated to those of Vuyisile Mkhonta, for instance, who stole more than thirty items and worked for the Respondent for less than 2 years. Ironically, it was Vuyisile who was given a written warning, before the Respondent changed its mind and decided that dismissal across-the-board was an appropriate sanction.
With regard to 2nd Applicant, the same considerations apply. She was proved to have stolen three fish with damaged tails. She served the Respondent for 8 years and she also had a clean disciplinary record.
We find that Respondent's management did not exercise their discretion on the question of sanction in a rational and independent manner, and the Applicants were denied a proper opportunity to make representations in mitigation. In these circumstances, the court must make its own decision whether the sanction of dismissal was reasonable and fair.
In weighing up the appropriate sanction for a disciplinary offence, consideration must be given to the seriousness of the particular act of misconduct, the length of service and disciplinary history of the employee, whether the employee has shown remorse, the likelihood of the misconduct being repeated, and any other factors that might aggravate or diminish the seriousness of the misconduct.
Mhlongo v AECI (supra) at 1138
Orange Toyota (Klrnberley) v Van Der Walt & Others (2000) 21 ILJ 2294 (LC) at 2299
The Code of Good Practice: Termination of Employment issued under section 109 of the Industrial Relations Act 2000 (as amended) emphasizes that discipline should be corrective, and dismissal should be reserved for cases of serious misconduct or repeated offences. The Code states that dismissal may be justified if the misconduct is 'of such gravity that it makes a continued employment relationship intolerable' -see paragraphs 5 and 6 of the Code.
"IntolerabMty is, of course, a wide and flexible notion. Generally, the courts accept an employment relationship becomes intolerable when the relationship of trust between employer and employee is irreparably destroyed" - per Grogan: Workplace Law (9th Ed) p167.
We agree with the views expressed in the case of Ngwenya v Supreme Foods (Pty) Ltd [1994] 11 BLR 77 (IC), where the Industrial Court of South Africa stated (at 84H) as follows: "At the outset I wish to stress that I do not hold the view that theft in all cases will justify dismissal or that the inference can invariably be drawn that the trust relationship between the employer and the employee has irrethevably broken down as a result of the fact that the employee had stolen goods from the employer. One of the factors that, to my mind, should play an important part when considering whether the trust relationship had irretrievably broken down, is the nature of the employer's business and the nature of the employee's work. In situations where the scope for pilfering is small or easily avoidable, it could be argued that dismissal of an employee for stealing is too harsh a penalty, since the employer, by taking reasonable steps, can all but eliminate the chance of this occurring in future, so that the trust relationship can be mended over time and that it would not be unfair to expect of the employer to give the employee a second chance. After all, it is trite that the purpose of discipline in the employment context is rehabilitation and not retribution."
In Strydom v USKO Limited [1997] BLLR 343 (CCMA) it was held that the dismissal of an Applicant with thirteen years service for the theft of rusted and unused tools was too severe a punishment and was substantively unfair. We think that the dismissal of the Applicants for stealing a few damaged products, which were likely to be destroyed and of no commercial value, was likewise too severe, taking into account their length of otherwise unblemished service. See also Simba Quix Ltd v Rampersad & another (1993) 14 ILJ 1286 (LAC)
We do not consider that the dishonest actions of the Applicants, when viewed individually and dispassionately, warrant a conclusion that the Applicants could no longer be trusted in the employ of the Respondent. Mr. Pettejohn said the Respondent could no longer trust the Applicants, but if the relationship of trust had irretrievably broken down, it is difficult to understand why the Respondent allowed them to continue working as normal for a further two weeks. The Applicants did not hold positions of trust where honesty and integrity was an essential requisite for the performance of their duties. They acknowledged their guilt at the time without demur. The 1st Applicant asked for forgiveness. They accepted Mrs. Pettejohn's public ticking-off in good grace. They showed remorse and contrition. Their involvement in further pilfering was very unlikely. Moreover the Respondent could have eliminated the possibility of further pilfering by staff, and probably did, by keeping proper stock records and tightening security at the gate by employing a female security guard to properly search female employees leaving the premises. In our view the damage done to the relationship of trust between the parties was by no means irreparable and could still be mended.
46 It is our finding that the sanction of dismissal was unreasonably severe
in all the circumstances, and the dismissal of the Applicants was
accordingly substantively unfair.
Procedural Unfairness
With regard to procedural fairness, it is now well established law that the right to a disciplinary hearing is so fundamentally important in the context of industrial relations that only exceptional circumstances will warrant dismissal without a hearing of any kind -see our judgement in the case of Alpheus Thobela Dlamini V Dalcrue Agricultural Holdings (Pty) Ltd (Unreported IC Case No. 123/2005) at 19 ff.
Mr. Sibandze for the Respondent submits that the Dalcrue Agricultural Holdings judgement (supra) wrongly found that the failure to hold a disciplinary hearing results caedit quaestio in an unfair dismissal. The judgement says no such thing. At page 17 paragraph 40 the Court stated that "it is not an immutable law that there should always be a hearing before an employee is dismissed. There may be exceptions to the general requirement that an employee be given such a fair hearing."
Although each case must be judged on its own peculiar facts, the exceptional circumstances recognized by the courts have fallen into two broad categories; instances of overriding or extreme emergency or crisis, and instances where the employee has waived the right to a hearing or rendered a hearing impossible.
Rycroft: A Guide to SA Labour Law (2nd Ed) at 206-207.
E Cameron: The Right to a Hearing before Dismissal - Problems & Puzzles' (1988) 9 ILJ 147 AT 165 ff.
Cameron in his article (supra) also mentions a third category, what he terms "discretionary refusal of relief" This does not constitute a further exception to the general rule, but merely refers to the court's discretion to refuse to award compensation or other relief despite finding that the dismissal was procedurally unfair.
See Rycroft op.cit at 206 note 218.
As we held in the Dalcrue Agricultural Holdings judgement (supra) at 19, this was the approach of the Court of Appeal in the case of Swaziland United Bakeries v Armstrong Dlamini (Appeal Case No. 117/1994),
Mr. Sibandze submits that the Appeal Court in the Swaziland United Bakeries case (supra) applied the "no difference" principle, namely that the failure to hold a disciplinary hearing is not procedurally unfair if the hearing would not have altered the decision to dismiss.
The "no difference" principle has been rightly criticized and rejected on the grounds that it disregards the fact that a fair hearing serves an independent process value, and that in such cases employees should at the very least be offered the chance to plead in mitigation
See, for example:
Foodpiper cc t/a Kentucky Fried Chicken v Shezi (1993) 14 ILJ 126 (LAC) at134f-h.
Kellogg SA (Pty) Ltd v FAWU & Others (1994) 15 ILJ 83 (LAC)
NUM & Another v Libanon Gold Mining Co Ltd (1994) 15 ILJ 585 (LAC)
Whall v Brandadd Marketing (PTY) Ltd (1999) 20 ILJ 1314 (LC) Grogan : Workplace law (9th Ed) p. 207.
We do not agree with Mr. Sibandze that the Court of Appeal applied the 'no difference1 principle, We would be most reluctant to infer the application of so flawed and discredited a principle of law merely from the appeal court's condonation of the failure to hold a hearing in the particular circumstances of the case before it. In any event, it is our view that the decision to dismiss the Applicants would in all probability have been different if the Applicants had been given a proper opportunity to mitigate before an independent chairperson and if the sanction had been based on their own individual circumstances.
There was no reason why the Respondent could not hold a disciplinary hearing. In our view it should have done so, and the failure to give the
Applicants the opportunity to make representations in mitigation of sanction rendered their dismissal procedurally unfair.
Relief Awarded
The Applicants are not entitled to payment of their severance allowances because they were dismissed for a reason provided in section 36 of the Employment Act 1980 (see section 34(1) of the Act), They are entitled however to payment of statutory notice (including additional notice). With regard to compensation for unfair dismissal, after taking into account all the relevant personal circumstances of the Applicants, their service record, and the manner in which they came to be dismissed, whilst at the same time keeping in mind that they committed a dishonest act by stealing from their employer, we consider that it is fair to award compensation of 6 months wages to the 1st Applicant and 4 months wages to the 2nd Applicant.
The Respondent has not provided any justification for making the deductions from the Applicants' salaries. The deductions were illegal in terms of sections 56 and 57 of the Employment Act and the Applicants are entitled to recover the amounts deducted.
57 We enter judgement against the Respondent for payment to the Applicants as follows: 1st Applicant
Notice pay E 1804.80
Additional notice pay 4211,20
Refund of deduction 600.00
Compensation 10828.80
TOTAL E 17444.80
2nd Applicant
Notice pay E 892.60
Additional notice pay 1040.85
Refund of deduction 300.00
Compensation 3568.64
TOTAL E 5802.09
The Respondent shall pay the Applicants' costs.
The members agree.
PETER R. DUNSEITH
PRESIDENT OF THE INDUSTRIAL COURT
1