IN THE CONCILIATION, MEDIATION ANDARBITRATION COMMISSION (CMAC)

Held in Manzini CMAC REF : SWMZ 302 /09

In the matter between

Azarias Novela Applicant

AND

Parmalat Swaziland (Pty) Ltd Respondent

CORAM:

Arbitrator : Mr Robert S. MhlangaFor Applicant : Mr S. MsimangoFor Respondent : Mr N. W. Dlamini

ARBITRATION AWARD

VENUE : MANZINI CMAC OFFICES, ENGULENIBUILDING, GROUND FLOOR

1. DETAILS OF HEARING AND REPRESENTATION

1.1 The Applicant is Azaria Novela, an adult male,who was duly represented by Mr Sabelo Msimangoin these proceedings.

1.2 The respondent is Parmalat Swaziland (Pty) Ltd, acompany registered in terms of the company lawsof Swaziland. The Respondent was representedby Nhlanhla Dlamini during the hearing of thismatter.

2. BACKGROUND OF THE DISPUTE

2.1 The Applicant was allegedly dismissed by theRespondent, after having been found guilty ofdriving a company motor vehicle while he wasunder the influence of intoxicating liquor oralcohol. Following his dismissal herein, theApplicant reported the present dispute to theCommission (CMAC).

2.2 Subsequently, the parties by consent referred thedispute to arbitration for determination.

3. ISSUE TO BE DECIDED

The issue which I am called upon to decide herein iswhether or not the Applicant's dismissal by theRespondent was fair.

2

4. SUMMARY OF EVIDENCE

4.1 APPLICANT'S CASE

AZARIA NOVELA'S TESTIMONY

4.1.1 Azaria Novela (hereinafter referred to as theApplicant) testified under oath. He statedthat he was employed by the Respondent asa motor mechanic in or about June, 2007.He said that he was earning E4010-00 permonth.

4.1.2 The Applicant alleged that he was unfairlydismissed by the Respondent on the 27th

June, 2009, on the ground that he drove thecompany car while he was under theinfluence of liquor.

4.1.3 The Applicant recounted the events which ledto his dismissal. It was the Applicant'stestimony that on the 25th May, 2009, hewas assigned by his supervisor one, FredNhlabatsi to attend a breakdown atMadlangempisi. The Applicant testified thatone of the company trucks had abreakdown at Madlangempisi and theApplicant was instructed to go there to fix itas a matter of urgency.

4.1.4 Mr Novela (Applicant) testified that he left forMadlangempisi at around 1:00pm (lunchtime). He said that at or near Mafutseni,on his way to Madlangempisi, he wasstopped by the police from Mafutseni policestation. The Applicant alleged that the policetold him that they were waiting for him,because someone had alerted them that he

3

was drunk. He said that he tried to negotiatewith the police to let him go, but theyrefused, and subsequently he was takento Mafutseni police station where he waskept in the police custody on suspicious thathe was drunk. The Applicant stated that MrFred Nhlabatsi came to Mafutseni policestation to collect the company car he wasdriving on the same day.

4.1.5 The Applicant stated that the police chargedhim with driving while he was under theinfluence of liquor. He said that on thefollowing day, the police took him to ManziniMagistrate's Court for prosecution. It wasthe Applicant's evidence that the policeadvised him to plead guilty to this offencebecause he would be given a fine ofE2000-00, and that if he could pay the saidfine, he would be released. The Applicantalleged that as a result he pleaded guiltyto the charge in question and he was foundguilty as charged, and he was sentenced topay a fine of E2000-0 or failing which toserve 2years imprisonment. He said thathe was able to pay the fine and thus he wasreleased. However, the Applicant deniedthat he was drunk, he said that he pleadedguilty because he wanted to be released.

4.1.6 It was the Applicant's testimony that afterhis release from custody, he reported forduty. He said that the Respondent chargedhim inter alia, with the misconduct of drivingthe company motor vehicle while he wasunder the influence of alcohol or liquor. Hewas suspended from work and subsequentlyhe was summoned to a disciplinary hearing.

4

The Applicant alleged that Michael Dlamini(alias mical), who represented him duringthe disciplinary hearing, was never chosenby him to be his representative. TheApplicant alleged that this representativewas given to him by Fred Nhlabatsi(Supervisor). Mr Novela further alleged thatthe disciplinary hearing was conducted inEnglish language, and as a result he wasprejudiced because he does not understandEnglish.

4.1.7 Mr Novela also stated that he did not pleadguilty to the charge of driving while underthe influence of liquor. However, he allegedthat he only admitted the fact that the policedetained him on suspicion that he wasdrunk. The Applicant further alleged thatduring the disciplinary hearing theRespondent failed to prove that hecommitted the misconduct in question,because neither a witness testified that hewas indeed drunk nor a police report wassubmitted to prove the commission hereof.Therefore, the Applicant alleged that hisdismissal was unfair. In conclusion, theApplicant prayed that an award be grantedin his favour, directing the Respondent topay him all the terminal benefits set out inparagraph 6.3 of his report of dispute.

CROSS EXAMINATION

4.1.8 During cross examination, the Respondent'srepresentative asked some few questions. Ihave only recorded the questions andanswers which I deem relevant herein.

5

4.1.9 Under cross examination, the Applicantadmitted that he drinks alcohol (he is adrinker). With regard to representation, theApplicant insisted that Michael Dlamini wasimposed on him by Fred Nhlabatsi; he neverelected him to represent him. He said thatMr Nhlabatsi told him that Michael was asuitable representative because he is asenior employee, and he has previouslyrepresented quite a number of fellowemployees at the workplace.

4.1.10 Regarding the language, the Applicanttestified during cross examination that bothSiSwati and English languages were usedduring the disciplinary hearing. On the otherhand, the Applicant was asked whether ornot he was in a good working relationshipwith his supervisor, Fred Nhlabatsi. Hisresponse was that he is in good terms withhis supervisor.

4.2 RESPONDENT'S CASE

FRED NHLABATSI'S TESTIMONY

4.2.1 The Respondent called Fred Nhlabatsi as itsfirst witness herein. I will refer to thiswitness as Mr Nhlabatsi or RW1 as the casemay be.

4.2.2 Mr Nhlabatsi testified under oath that he iscurrently employed by the Respondent as aDistribution Controller. He stated that on the25th May, 2009 he instructed the Applicant(Azaria Novela) to attend the companytruck which had a breakdown at or near

6

Madlangempisi. Mr Nhlabatsi testified thatthe Applicant left for Madlangempisi before1:00pm. It was Mr Nhlabatsi's evidence thatat around 4:00pm he got a message fromthe Receptionist that a certain Mr Mabuza, apolice officer from Mafutseni called; he lefthis number and he requested Mr Nhlabatsi tocall him.

4.2.3 Mr Nhlabatsi stated that he called this policeofficer, and he (police officer) informed himthat the Applicant was arrested for drink-driving. It was Nhlabatsi's evidence that herushed to Mafutseni police station to collectthe motor vehicle the Applicant was driving.RW1 (Fred Nhlabatsi) said that theApplicant's detention caused a greatinconvenience because he was forced tosecure an independent mechanic toattend to the breakdown at Madlangempisi.

4.2.4 RW1 testified that the Applicant was soberwhen he left the company premises forMadlangempisi on the day in question. Itwas RW1's evidence that the Applicant wasbrought to court on the following day,whereupon he pleaded guilty to thecharge of drink-driving, and he wasfound guilty as charged. He was releasedafter having paid a fine of E2000-00.

4.2.5 RW1 said that the Applicant upon his returnto work, was subsequently charged withdriving the company motor vehicle duringthe working hours while he was under theinfluence of liquor. With regard torepresentation, it was RW1's testimony thathe only advised the Applicant that the

7

offences or charges he was facing wereserious. He then advised him to get acompetent representative and thus herecommended Michael Dlamini (fellow-employee) to be his representative duringthe disciplinary proceedings. RW1 deniedthe allegation that he forced the Applicant tochoose Michael Dlamini as hisrepresentative; but he only recommendedhim because of his experience and expertisein labour matters, and he has previouslyrepresented a number of fellowemployees at the workplace.

4.2.6 Regarding the language used during thehearing, RW1 testified that Siswati was usedduring the disciplinary hearing. RW1 alsotestified that the disciplinary hearing was atall times conducted in the presence of theApplicant's representative. On the otherhand, RW1 stated that there was a goodworking relationship between him and theApplicant.

CROSS EXAMINATION

4.2.7 During cross examination RW1 was askedwhether a hearing was conducted before theApplicant was suspended from work, in orderto determine whether there was a caseagainst the Applicant which warranted adisciplinary action. RW1's answer was in thenegative; no such hearing wasconducted.

4.2.8 RW1 was also asked about the Applicant'sstate of sobriety when he reported for dutyon the day in question. He was asked

8

whether or not he was sober. RW1 testifiedthat the Applicant was sober when he left forMadlangempisi to attend to the truck. RW1was further asked if any evidence was led bythe Respondent to prove that the Applicanthad committed count one (driving whileunder the influence of alcohol). In response,RW1 stated that he was informed by thepolice that the Applicant was drunk.However, he admitted that he did not noticewhether Applicant was drunk at the time hearrived at the police station to collect thecompany car. RW1 also stated that if hewas not drunk, the police could not havearrested and detained him for drink-driving.

4.2.9 It was put to RW1 that the Respondent failedto present evidence during the disciplinaryhearing to prove that indeed the Applicantwas drunk, more so because no police reportwas submitted to that effect. In response,RW1 denied this; he said that if the Applicantwas not drunk, the police could not havearrested him nor could have beenprosecuted for the offence in question. Hesaid that the Applicant could not have paidthe fine of E2000-00. RW1 further testified,on the other hand, that the Applicant alsopleaded guilty to the offence in question.

4.2.10 RW1 denied the allegation that MichaelDlamini was imposed by him to be theApplicant's representative. He mentionedthat he only recommended to the ApplicantMichael Dlamini as a suitable representative.

9

JEROME MATHE'S TESTIMONY

4.2.11 Jerome Mathe was the second witness calledby the Respondent. He is also the lastwitness on the Respondent's side. I will referto this witness as Mr Mathe or RW2 as thecase may be. Mr Mathe also gave histestimony under oath. It was Mr Mathe'sevidence that he was the Chairman of thedisciplinary hearing herein.

4.2.12 RW2 (Jerome Mathe) testified that at thecommencement of the disciplinaryproceedings, he asked the pre-enquiryquestions to ensure that all the proceduralrequirements are met. In particular hetestified that he asked the Applicant if he hadsufficient time to prepare for the hearing; healso asked if he had representation and thelanguage to be used was agreed upon; andhe said that SiSwati language was usedduring the hearing. RW2 stated that theApplicant did not raise an objection aboutrepresentation. He said that the Applicantwas represented by Mr Michael Dlamini(alias micah). It was the second witness'evidence that he asked the Applicant if heunderstood the charges he was facing, andthe Applicant answered in the affirmative.

4.2.13 He alleged that the Applicant was chargedwith two (2) counts of misconduct namely;on count one, he was charged with drivingthe company vehicle registered SD 430 EN,while he was under the influence ofintoxicating liquor or drugs, on the 25th May,2009, where he was on his way to attend abreakdown at Madlangempisi. On count two,

10

the Applicant was charged withmisappropriation of company vehicle,SD 430 EN in that on the 25th May, 2009,while driving the said motor vehicle he wascaught by the police drunk at 1545hours onhis way to Madlangempisi, yet he wasexpected to take 30 minutes' drive fromMatsapha to Madlangempisi. RW2 allegedthat after having read the aforesaidcharges to the Applicant, the Applicant toldhim that he understood them and he wasthen asked to plead thereto.

4.2.14 RW2 alleged further that the Applicantpleaded guilty to count one; and not guilty tocount two. RW2 testified that during thedisciplinary hearing, the Applicant stated thathe drank till late on the previous day, and hecould feel the effects of the previousdrinking on this day, because when he drankwater he felt like he was drunk.

4.2.15 RW2 testified that at no stage did thedisciplinary proceedings proceeded in theabsence of the Applicant's representative. Itwas RW2's evidence that the Applicant wasconsequently found guilty on count one (1)and not guilty on count two (2) because thischarge was later abandoned by theRespondent.

CROSS EXAMINATION

4.2.16 It was put to this witness by the Applicant'srepresentative that the disciplinary hearingwas procedurally unfair because EnglishLanguage was used yet the Applicant doesnot understand it. In response, RW3

11

disputed this; he maintained that thedisciplinary hearing was procedurally fairbecause Siswati Language was used duringthe hearing. RW3 said that though theminutes were written in English, but theminutes were read and translated to theApplicant in Siswati before all theparticipants signed them.

4.2.17 It was further put to RW3 that his decision toterminate the Applicant's services was basedon hearsay evidence, because no evidencewas led by the Respondent during thedisciplinary hearing to prove that theApplicant committed the offence in question(count one). RW3 denied this; he reiteratedthat the Applicant pleaded guilty tocount one. He also said that the fact thatthe Applicant was arrested and detained bythe police for drink-driving convinced himthat indeed the Applicant was guilty of thecharge in question.

4.2.18 The Applicant's representative also put it toRW2 that the Applicant did not pleadguilty to count one. RW3 reiterated that theApplicant pleaded guilty to this charge.

5. ANALYSIS OF EVIDENCE AND SUBMISSION

5.1 In casu, both parties filed closing submissions insupport of their respective cases.

5.2 Briefly, the Applicant's case as encapsulated in hisclosing submissions, is that the Applicant'sdismissal was both procedurally and substantivelyunfair. It is submitted on behalf of the Applicantthat his dismissal was procedurally unfair because

12

the disciplinary proceedings were conducted inEnglish, a language which the Applicant does notunderstand. It is argued herein that there was noindependent Interpreter. It is further arguedby the Applicant that the representative, whorepresented him during the disciplinary hearingwas never chosen by him; it is alleged that hewas recommended by Mr Fred Nhlabatsi, hencehis right to choose a representative of his choicewas infringed.

5.3 It is further alleged by the Applicant that theRespondent failed to prove that the Applicantcommitted the misconduct in question in thatduring the hearing, no evidence was adduced bythe Respondent. It is the Applicant'ssubmission that the Chairperson of thedisciplinary enquiry relied on hearsay evidence. Itis argued herein that hearsay evidence is notadmissible in terms of the law. It is argued thatthe fact that the Applicant paid a fine at themagistrate's court could not be used against himas proof that he was drunk.

5.4 On the contrary, it is submitted on behalf of theRespondent that the Applicant's dismissal was fairand reasonable in view of the circumstances ofthe case.

5.5 It is the Respondent's submission that theRespondent was able to prove on a balance ofprobabilities that the Applicant was under theinfluence of alcohol on the date of his arrest bythe police and that he pleaded guilty to thecriminal charge of drink-driving at themagistrate's court as appears in Annexure "A14".

13

5.6 With regard to the allegation that the disciplinaryhearing was conducted in English, the Respondentdisputes that. It is the Respondent's submissionthat same was conducted in Siswati. On the otherhand, the Respondent denies that the Applicantdoes not understand English.

5.7 The Respondent also refutes the Applicant'sassertion that the person who represented himduring the disciplinary hearing was never chosenby him. It is the Respondent's submission thatduring the said hearing the Applicant never raisedan objection to the effect that he was not happyabout his representative (because he was notchosen by him).

5.8 From my analysis of the oral evidence presentedbefore me, together with the supportingdocuments (Annexures) filed herein; I have foundthat the following facts are not in dispute, and assuch they are accepted.

5.8.1 It is not in dispute that on the 25th May,2009, the Applicant was arrested anddetained by the police on suspicion that hewas under the influence of alcohol, yet hewas driving a motor vehicle. Subsequently,he was charged with drink-driving.Infact according to the police report(Annexure "A12") filed by the Respondent,he was charged with driving a motorvehicle, SD 430 EN, while he was under theinfluence of liquor, thus contraveningSection 91 (1) of the Traffic Act No: 6 of2007.

5.8.2 It is common cause that on the 26th May,2009, the police brought him to the

14

magistrate's court in Manzini for trial.During the hearing of his case, the Applicantpleaded guilty to the charge andconsequently he was found guilty as per hisplea. He was convicted and sentenced topay a fine of E2000-00 or failing which toserve 2 years imprisonment (See Annexure"14", being an extract of the court recordfiled herein).

5.8.3 After his release the Applicant returned towork, whereupon he was subsequentlysuspended, charged with two (2) acts ofmisconduct. On count one (1) he wascharged with driving the company motorvehicle, registered SD 430 EN, on the 25th

May, 2009 while he was under the influenceof intoxicating liquor or drugs. Under counttwo (2), the Applicant was charged withmisappropriation of the said company vehiclein that on the same day, he was suspectedof having diverted or used the motorvehicle in pursuit of his own errands (Theunderlined is my emphasis). It is commoncause that the Applicant was foundguilty as charged on count one, and notguilty on count two.

5.9 The rest of the relevant issues which fall fordetermination are contested. The Applicantduring his evidence-in-chief, denied that hepleaded guilty to charge /count one (1).However, on the other hand, the Respondentmaintains that the Applicant pleaded guilty tocount one (1) and not guilty to count two (2).Consequently, he was found guilty as charged oncount one (1), and not guilty on count two (2)and as a result he was summarily dismissed. As I

15

have already mentioned in the foregoingparagraphs, the Applicant submits that theRespondent failed to adduce evidence to provethat he committed count one (1). It is allegedthat the Respondent relied on what the police toldMr Fred Nhlabatsi, that he was drunk. TheApplicant argues that this is hearsay evidence,and therefore it is not admissible. I will deal withthis issue or allegation later on in my conclusion.

5.10 Another contested issue, is the Applicant's right torepresentation during the disciplinaryproceedings. The Applicant alleges that he neverchose Mr Michael (alias Micah) Dlamini to be hisrepresentative. I entirely reject the Applicant'scontention that Michael (alias Micah) Dlamini waschosen by Fred Nhlabatsi. There is clear evidencethat Mr Nhlabatsi only suggested to the Applicantthat he could engage Mr Michael Dlamini as hisrepresentative, due to Mr Dlamini's experience,since the offence or misconduct he was chargedwith is serious as it was a dismissible offence/misconduct. Nothing was shown by the Applicantto the contrary and or that he did not want to berepresented by Michael Dlamini, and that as aresult his right to representation was in theprocess violated. In a nutshell, the Applicantfailed to show that there was a procedural defectwhich emanated from such representation. Inthis regard, the Applicant's contention is rejected.

5.11 With regard to the allegation that Englishlanguage was used during the disciplinaryhearing, in my view this allegation does not holdwater; it is baseless and further from the truth.The Applicant admitted during cross examinationthat both English and Siswati were used. TheRespondent's contention, as per RW2's evidence

16

is that the disciplinary proceedings wereconducted in Siswati and that the minuteswere translated to the Applicant in Siswati. I aminclined to believe the Respondent's versionherein.

6. CONCLUSION

6.1 The main issue which falls for determinationherein is whether or not the Applicant's dismissalwas fair and reasonable as per the dictates ofSection 42 (2) read together with Section 36of the Employment Act 1980 (As amended).

6.2 In terms of Section 42 of the Employment Act1980 (as amended), the Respondent bears theburden or onus to prove that the Applicant'sdismissal was fair and reasonable, regard beinghad to all the circumstances of this case. On theother hand, the Applicant is required to prove thatat the time of his dismissal he was an employeeto whom Section 35 of the Employment Act 1980(as amended) applied.

6.3 In the present case, it its common cause that theApplicant was an employee to whom section 35 ofthe Employment Act 1980 (as amended) appliedsection 42 stipulates that. "The services of anemployee shall not be considered to havebeen fairly terminated unless the employerproves:-

(a) That the reason for termination was onepermitted by section 36 and;

(b) That taking into account all the circumstances ofthe case, it was reasonable to terminate theservices of the employee".

17

6.4 The Respondent, in its endeavour to discharge theonus of proof placed on it by the aforesaid section42 of the Employment Act, led the evidence oftwo witnesses namely; Fred Nhlabatsi (RW1) andJerome Mathe (RW2). Both RW1 and RW2testified that during the disciplinary hearing theApplicant pleaded guilty to count one. In otherwords he admitted that he drove the company carwhile he was under the influence of alcohol duringworking hours.

6.5 It appears from the minutes of the disciplinaryhearing that the Applicant pleaded guilty tocount one. Since the Applicant pleaded guilty,there was no need for the Respondent to leadfurther evidence. Therefore, the Applicant'sdenial that he did not plead guilty is bare; andthis is an after thought.

6.6 Besides the fact that the Applicant pleaded guilty,the surrounding circumstances of the case clearlyshow that the Applicant was drunk on the day inquestion, and as a result the police arrested anddetained him. He was taken to court where hepleaded guilty to the charge of drink-driving.Therefore, the Applicant can not now claim thathe is innocent. If the Applicant was innocent heshould have pleaded not guilty to the charge inquestion before the magistrate's court.

6.7 It is my conclusion that the Respondent was ableto discharge the onus placed on it by section 42of the Employment Act 1980 (Asamended). The Respondent has established thatthe reason for the Applicant's termination waspermitted by section 36 (L) of the EmploymentAct 1980. It cannot be overemphasized that

18

driving a motor vehicle while one is drunk orunder the influence of alcohol or liquor and orany other intoxicating substance or drugs is avery serious offence.

6.8 The Respondent has also shown that, taking intoaccount all the circumstances of the case, it wasreasonable to dismiss the Applicant. It is theRespondent's case that the Applicant breached aworkplace rule or code of misconduct whichprohibits the consumption of alcohol, drugs orintoxicating liquor. Section F of the Respondent'sdisciplinary code and procedures (code ofmisconduct) deals with alcohol/drugs. In terms ofthis rule, a recommended sanction for count one(driving while under the influence of liquor oralcohol), for a driver if found guilty is a dismissal(even if he is the first offender).

6.9 The Applicant was aware of this rule, butnotwithstanding that, he drank alcohol duringworking hours and got behind the steering wheel,knowing very well that this was a dismissibleoffence. This often times lead to road accidentsand loss of lives of other road users and eveninnocent pedestrians (children alike). Thecompany car, if it were to be involved in anaccident due to Applicant's state of sobriety wouldbe damaged. There would be far-reachingconsequences as a result of the Applicant'smisconduct. In light of the foregoing, it wasreasonable in the circumstances of the case toterminate the Applicant's services. Overall, it ismy conclusion that the Applicant's dismissal wasboth procedurally and substantively fair.

19

7. AWARD

Pursuant to my foregoing findings or conclusion herein,it is my decision that the Applicant's application shouldbe dismissed in its entirety. Therefore, the Applicant isnot entitled to any relief sought herein.

DATED AT MANZINI ON THIS 7T H DAY MAY, 2010

ROBERT S. MHLANGACMAC COMMISSIONER

20