Thamsanqa Mhlanga Vs Eswatini Wire Industries (Pty) Ltd and another

Thamsanqa Mhlanga Vs Eswatini Wire Industries (Pty) Ltd and another (285/2020) [2020] SZIC 161 (2 December 2020)

On the 26th of October 2020, the applicant launched an urgent application where he sought an order in the following terms:

(1) Dispensing with the normal requirements set out on the rules of the Court relating to service and time limits and that the matter be heard as one of urgency.

(2) That pending the finalization of this matter, the disciplinary hearing be suspended.

(3) That the decision of the 1st respondent to suspend the applicant without pay be reviewed and set aside.

(4) That the 1st respondent be ordered to re-instate the salary of the applicant.

(5) That the 1st respondent gives the applicant the audio record of the disciplinary hearing.

(6) Costs of the application against the 1st respondent.

(7) Any further and/or alternative relief.

Before the judgement could be delivered, the respondent filed an interlocutory application that the bench should recuse itself and the matter should begin de novo before a different bench. This is because one of the Court members who heard the matter is a former employee of the 1st respondent who currently has a claim against the 1st respondent for alleged unfair dismissal. The interlocutory application was successful and the matter was brought before this bench. In it’s papers, the respondent raised some points of law one of which was the lack of urgency in the matter. It was their view that the point on urgency had been overtaken by events, with pleadings having been closed and the interlocutory application was heard and finalized in the intervening period.

In his submission, Mr. Kunene for the applicant stated that the applicant now sought prayers 3 & 4. Prayers 2 & 5 had been overtaken by events, as the respondent has not continued with the disciplinary proceedings and had provided the audio record. It’s the applicant’s case that he was suspended on full pay on 3 February 2020 while investigations were ongoing into the alleged misconduct. Benefits tied to his employment contract which include a company car, fuel allowance and his contract cellphone were withdrawn pending finalization of the disciplinary process. The disciplinary hearing was first convened on the 24th of February 2020 and was postponed on two occasions because the respondent’s representative was not present. The respondent had to appoint a new representative and the hearing was postponed on a couple of occasions because the new representative was appointed as an acting Judge.

The hearing was further postponed on a couple of other occasions for reasons which include; Chairperson’s absence, applicant falling sick and also the applicant’s respondent being sick. The last postponement of the matter was to the 26th of October 2020. Immediately after this postponement, the applicant left the premises only to be called by the respondent’s Chief Financial Officer (CFO) to return to the company’s premises. The applicant met the CFO in the boardroom of the company where he was informed by the CFO that the Executive Committee (EXCO) had decided to terminate his salary. The CFO told the applicant to wait for a letter which was confirming same. After 10 minutes, the CFO returned with the letter which the applicant refused to sign. The letter alleged that the disciplinary hearing had been delayed due to the unavailability of the applicant’s respondent. The applicant stated that he did not have a meeting with the CFO to make his submission on the variation of his terms of suspension as alleged in the letter.

He does not consider the brief meeting he had with the CFO as meaningful consultation and argued that this happened without getting the chance to get advice from his representative. He considers this as a breach of his right to a fair hearing. He further averred that his suspension without pay compromised his defence in the disciplinary hearing because he can’t bring witnesses, therefore being denied a fair hearing. The respondent argued that section 39 of the Employment Act does not call for an employee to be given a hearing before being suspended without pay. Mr. Dlamini for the respondent stated that the applicant was consulted before the terms of his suspension were varied. He further stated that it is not in all unfair labour practices that the Court will intervene in incomplete disciplinary hearings, but it is only in exceptional circumstances. He said the applicant’s affidavit did not show such exceptional circumstance.

Analysis of Arguments

  • It was the Court’s view that the applicant is not asking for the Court to interfere with an incomplete disciplinary hearing, he is only asking the Court to stay the disciplinary proceedings pending the challenge of the employer’s action.

  • The Court reiterated that the applicant has a right to a fair hearing and this will not happen if he can’t defend himself due to what is alleged to be unlawful variation of the terms of a suspension.

  • It’s the Court’s view that the disciplinary hearing must be stayed pending finalization of the challenge on the variation of the terms of suspension.

  • The Court found that the manner in which the applicant was asked to make submissions was patently unfair. Firstly, the applicant made the submissions to the CFO who was not the decision maker, he still had to convey the message to the EXCO. There is no way of knowing if the CFO properly communicated the applicant’s submissions. The applicant should have been allowed to make submissions directly to the EXCO. Secondly, the Court found that the manner in which the applicant was consulted is not conducive for meaningful consultation. Knowing that the applicant was in the middle of a disciplinary hearing where he is represented, consulting him without offering him an opportunity to get the advice of his representative amounted to an ambush.

  • The Court decided that the withdrawal of the applicant’s salary was unlawful.

  • The decision to vary the terms of suspension was not preceded by a fair procedure nor based on legally competent grounds.

 

Judgement

The Court ordered as follows:

 

(1) The 1st respondent’s decision dated 16 October 2020 in terms of which the 1st respondent varied the terms of the applicant’s suspension from one with pay to one without pay is hereby set aside.

 

(2) The respondent is ordered to reinstate the applicant’s salary.

 

(3) Each party is to pay it’s own costs.

 

 

Dec 17 2020 3:51PM