Simelane And Another v Swaziland Breweries (75 of 2004) [2009] SZIC 70 (15 September 2009)

HELD AT MBABANE CASE NO. 75/2004

In the matter between:

DUMISANE SIMELANE 1^st APPLICANT

THE MBA NXUMALO 2^nd APPLICANT

And

SWAZILAND BREWERIES RESPONDENT

CORAM:

NDERINDUMA : PRESIDENT

JOSIAH YENDE : MEMBER

NICHOLAS MANANA : MEMBER

FOR APPLICANT ; S. MAGONGO

JUDGEMENT-15/09/09

The 1 Applicant is Dumsane Simelane. He was employed by the Respondent in 1999 and was in continuous employment until the 14^th February 2003, when he was dismissed by the Respondent on allegations that he had stolen a crate of beer. At the time of the dismissal, the 1^st Applicant worked as a driver and was earning a monthly salary of El,863.00 per month.

On the other hand the 2^nd Applicant is Themba Nxumalo. He was employed by the Respondent in 1993 and was in continuous employ thereof until the 14^th February 2003. At the time of his dismissal, he worked as a truck helper and earned a monthly salary of El,278.00 (One Thousand Two Hundred and Seventy Eight Emalangeni).

The 1^st and 2^nd Applicants were charged with the same offence. It was alleged that a case of beer was found under the truck in which they worked.

The two testified before court in support of the particulars of claim. They denied the charges laid against them. They told the court that they were hurled before a disciplinary tribunal where they were tried for theft of a case of beer. They had similarly denied the charges but were both found guilty as charged. The two were dismissed. They both appealed against the decision to dismiss them. The appeal was dismissed. They reported a dispute to the Commissioner of Labour. The same was referred to the Conciliation, Mediation and Arbitration Commission (CMAC). Conciliation process did not resolve the dispute and a certificate of unresolved dispute was issued.

The matter was filed before court on the 18^th March 2003.

The Respondent represented by the firm of Millin and Currie Attorneys filed its reply on the 20^th April 2004, approximately a year after the claim was filed. No leave was sought to file the Reply inspite of the inordinate delay. Infact, the copy of the Reply in the Judge's file does not bear any court stamp, a matter that was not explained because the Respondent was not represented during the trial.

On the 11^th February 2005, a Notice of Withdrawal and Substitution of Attorneys was filed by the firm of Currie &. Sibandze attorneys.

A pre-trail conference was held on the 15^th June 2004 wherein one Magongo appeared for the Applicants and Mr. T. Mofokeng represented the Respondent.

The matter was set down for trial to commence on the 9^th September 2005 and the notice was served on the Respondent's attorneys on the 15^th August 2005.

Inspite of receipt of the Notice of Set Down, the Respondent was not represented on the date of the hearing. The matter proceeded exparte since no explanation was offered for the non-appearance of the Respondent.

The evidence of the 1^st and 2^nd Applicants was therefore not controverted at all. The same was consistent and credible.

The onus of proving that the 1^st and 2^nd Applicants were dismissed for an offence permitted by Section 36 of the Employment Act lies with the Respondent in terms of Section 42 (2) (a) of the Act. By its default, the Respondent did not discharge this onus.

Furthermore, in terms of Section 42 (2) (b), the Respondent has an onus of showing that the dismissal of the 1^st and 2^nd Applicants was fair and reasonable in the circumstances of the case. Again the Respondent failed in this respect.

The 1^st and 2^nd Applicants were therefore dismissed unfairly in substance and procedure. Accordingly their Applications succeeded on the merits.

COMPENSATION

1^st APPLICANT

The 1^st Applicant was 32 years old. He was not married but had five minor children to take care of. He remained unemployed upon dismissal until the month of November 2004 when he got a job as a driver with Tholeni public transport. He earned El,350.00 per month. He has thus suffered loss of income and hardship as a result of the unfair dismissal. He had served the Respondent for a period of four years.

The court in consideration of all these circumstances award him eight (8) months salary as compensation for the unfair dismissal.

2^nd APPLICANT

The 2^nd Applicant was 31 years old. He was married with one child. He had gotten temporary employment with Swaziland United Bakeries (SUB) as a driver in December 2003. He earned E322.00 (Three Hundred and Twenty Two Emalangeni) per week. He suffered loss of income and hardship. Like the 1^st Applicant he had no record of misconduct at the work place prior to the allegations made against him. He had served the Respondent for a period of about ten (10) years.

Considering all the above circumstances, the court awards him ten (10) months salary as compensation for unfair dismissal.

TERMINAL BENEFITS

In addition the 1^st Applicant is awarded, one months salary in lieu of notice in the sum of El,863.00, additional notice of E859.80 and severance allowance of E2,149.00.

The 2^nd Applicant is similarly awarded notice pay in the sum of El,278.00, additional notice pay of El,769.00 and severance allowance in the sum of E4,423.50.

TOTAL AWARDS

1^st Applicant total award is E19,775.80 (Nineteen Thousand Seven Hundred and Seventy Five Emalangeni Eighty Cents).

2^nd Applicant total award is E20,250.90 (Twenty Thousand Two Hundred and Fifty Emalangeni Ninety Cents).

No order as to costs.