Swaziland Airlink vs Nonhlanhla Shongwe N.O. and Two Others (29/2020) [2020] SZSC 26 (19/08/2020).
The appellant is Swaziland Airlink (Pty) Ltd a company registered in Eswatini in the business of conveying passengers and cargo to and from Eswatini. The 1st respondent is Nonhlanhla Shongwe, an adult female employed by the Conciliation, Mediation and Arbitration Commission (CMAC) as a Commissioner. The 2nd respondent is Malizo Sikiti, an adult male formerly employed by the appellant. The 3rd respondent is CMAC, a statutory body established in terms of the Industrial Relations Act of 2000 (as amended). The 2nd respondent was employed as a Supervisor in June 1999 until August 2012. On the 6th of July 2012, the appellant instituted disciplinary proceedings against the 2nd respondent on the following counts:
“Count1: Gross negligence in that you failed to follow company procedure for the dispatch of flights by allowing SA 8015 on the 1st of June 2012 and SA 8013 on the 8th of June 2012 to dispatch without flight documents on board causing delays in following flights and bringing the company’s name into disrepute.
Count2: Gross negligence in that you caused flight SA 8991 on the 16th of June and flight SA 8997 on the 17th of June 2012 to be delayed by about 25 minutes, resulting in passengers missing their connecting flights at OR Tambo International Airport. This resulted in the company paying accommodation bills and the company’s name was put into disrepute.
Count3: Gross negligence in that on the 15th of June 2012 you allowed a passenger Mothondo Jonathan to travel to Oslo without a valid Visa exposing Swaziland Airlink to heavy penalties and bringing the name of the company into disrepute.”
On the 9th of July 2012, 2 days before the disciplinary hearing, the 2nd respondent was confronted and handed a document titled ‘Volume H Human Resources Manual’ and was told to sign this document. This document was informing the 2nd respondent of his rights during the disciplinary proceedings. At the hearing on the 11th of July 2012, the 2nd respondent advised the Chairperson of the hearing Mphilisi Mtshali that he seeks a postponement of the matter because he did not get enough time to get legal representation. He wanted to be represented by someone from the holding company (South African Airlink) and he also wanted to be furnished with his job description before the hearing commences. The 2nd respondent argued that he received the charge sheet on Friday the 6th of July, he could not find anyone to represent him since the employee who holds the same rank was on leave.
The prosecutor during the hearing one Sandile Chiponza said that according to the Human Resources Policy of the company, 48 hours is sufficient time and that Swaziland Airlink is a stand-alone company. He added that all employees get their job description when they are employed. The chairperson then dismissed the points that were raised by the 2nd respondent and gave him 20 minutes to find representation among fellow employees while the hearing was adjourned. The 2nd respondent was then compelled to ask a junior employee to represent him in the hearing. In the Court a quo, the representative was described as a spectator as she could not possibly defend someone senior to her at these proceedings. The 2nd respondent pleaded not guilty to count 1 & 3 but pleaded guilty to count 2. At the arbitration at CMAC, the 2nd respondent denied pleading guilty to count 2. At the end of the hearing the chairperson made the following recommendation to management; on count 1 the recommended sanction was a final written warning, for count 2 & 3 the recommended sanctions were summary dismissal.
On the 10th of August 2012, the 2nd respondent received a Notice of Dismissal from the appellant. Upon receipt of this Notice, the 2nd respondent appealed the decision with the Managing Director of the appellant. The appeal chairperson Nonhlanhla Dlamini dismissed the appeal. The matter was referred for arbitration at CMAC where the 1st respondent handed down her judgement on the 29th of June 2015. She found that the applicant’s dismissal was both procedurally and substantively unfair. She ordered that the applicant be paid compensation amounting to E207 897.88 . The appellant was not satisfied with this decision and applied for a review at the High Court. At the High Court, the judgement was handed down by Maseko J. on the 17th of October 2019 where the application was dismissed and the arbitration award was confirmed.
On the 22nd of May 2020, the appellant filed a notice of appeal on the following grounds:
Ground 1: The entire application should not have been dismissed based on only the alleged denial of legal representation of the employee, but all the grounds of review should have been considered.
Ground 2: By finding that the dismissal of the employee was unfair and the chairperson did not act judiciously by affording the 2nd respondent only 20 minutes to find representation.
Ground 3: By finding that the only legal question that needed to be decided on was whether the chairperson acted judiciously by affording the employee 20 minutes to find representation and not considering the other grounds of review.
Ground 4: By finding that it was unnecessary to consider the aspect of substantive fairness or unfairness of the dismissal of the employee, the court a quo should have decided on all the grounds of review.
The appellant prayed that the appeal be allowed with costs. Mr Simelane who represented the appellant raised the following points;
(1) The Court a quo should have dealt with and interrogated the procedural issues as well as the substantive issues and it failed to do so.
(2) This constituted an error of law and ought to be set aside.
Mr Simelane supported his case with sections 36 and 42 of the Employment Act. The court was of the view that these two sections do not support the appellant’s case and they have nothing to do with procedural fairness. The Court stated that there were two aspects of this matter that need to be addressed one being whether the 2nd respondent was given a judicially fair hearing during the disciplinary hearing. The second aspect is whether the appellant abided by section 42 of the Employment Act in that under all circumstances it was fair and reasonable to dismiss the second respondent. The Court averred that the representative should have been someone who has knowledge of the dispute, be given time to consider the matter and be capable to give sound advice to the accused. This is not what happened in this case. No matter how strong the facts and merits of the case were 20 minutes was not enough to arrange for representation. The Court noted that the Court a quo found that the appellant would have suffered no prejudice by allowing the 2nd respondent to get representation from South Africa.
The Court found that the rules of natural justice were not followed and the Court agrees with the Court a quo and the 1st respondent that the 2nd respondent was not afforded a procedurally fair hearing. This shows that the first aspect of the matter has failed. After finding that the hearing was procedurally unfair, there is no need to consider the other aspect of the matter, the Court a quo was right for not considering the other grounds of review. The Court was concerned in that there seemed to be a haste in convicting the 2nd respondent as there is no record of him being suspended pending investigations before the disciplinary hearing. The issue of the substantive unfairness in the award of the 1st respondent at the Court a quo could not have been heard by this Court because the matter was not first heard at the Court a quo or at least in it’s judgement.
Judgement
1. The appeal is dismissed.
2. The 2nd respondent is awarded costs at an ordinary scale excluding costs related to the preparation of heads of argument and bundle
Jan 19 2021 8:36PM