Office romance DC: Head
MBABANE – ENPF says there is nothing wrong with the disciplinary hearing of its Compliance Officer Sibusiso Gamedze being presided over by the head of his department.
Gamedze of Gege wants the Industrial Court to, among other things, remove the chairman of his disciplinary hearing, Micah Nkabinde, from presiding over the proceedings.
In an urgent application Gamedze filed last Friday, he also prayed for an order to appoint a new chairman for the hearing.
Eswatini National Provident Fund (ENPF) has instituted disciplinary proceedings against Gamedze for his alleged failure to disclose a romantic relationship he allegedly had with an accountant of a company under his portfolio.
He is alleged to have breached his duty of good faith to ENPF in that he reportedly failed to disclose and/or concealed the existence of the romantic relationship with Zabo Tengetile Makama - an Accountant at Afritrade Services (PTY) Limited in Matsapha.
He is also facing a charge of gross dishonesty in that together with Makama, they allegedly defrauded the company (Afritrade Services (PTY) Limited) a sum of E125 556.97.
Profile
Gamedze’s job profile entails enforcing compliance among employers who are under his portfolio with the provisions of the ENPF Order.
At Afritrade Services (PTY) Limited, Makama was responsible for, among other things, the remittance of ENPF statutory contributions by the company.
The initial chairman of the hearing was Senior Lawyer Musa Sibandze. Through his union, Swaziland Union of Financial Institutions and Allied Workers (SUFIAW), Gamedze objected to Sibandze presiding over the matter and determined that he should recuse himself.
After Sibandze recused himself from the hearing, Nkabinde was appointed as was chairman.
Gamedze brought another recusal application, arguing that Nkabinde was the overall head of department and as such, was conflicted.
The applicant (Gamedze) submitted that Nkabinde would be partial because the offences occurred within his department. Nkabinde refused to recuse himself and proceeded to hear the matter.
Judge Manene Thwala issued an interim order last Friday stopping the hearing pending finalisation of the matter in court.
ENPF General Manager Corporate Services Sindisiwe Mango said Nkabinde was responsible for a larger section and Gamedze allegedly did not report directly to him.
According to Mango, Gamedze submitted an application for recusal of the chairman, ‘and in his reasoned ruling, the chairman determined that there was no conflict’.
Principles
“The second respondent is an employee (Nkabinde) of the first respondent (ENPF) and in accordance with the principles of acceptance of institutional bias, he is entitled to preside over the disciplinary,” said Mango.
The principle of institutional bias, in the context of the workplace, according to Mango, had been determined as being acceptable and as such, did not offend the principles of a fair hearing.
“Institutional bias permits for a chairperson who may have some cursory knowledge of the disciplinary matter to preside over the hearing with a fair and objective mindset. The second respondent has exhibited those principles and pronounced himself accordingly,” said Mango.
She also submitted that the mere fact that in the ultimate, Gamedze was in the same department as Nkabinde was not on its own a bar to the latter’s ability to preside over the disciplinary hearing. There is nothing wrong with a disciplinary hearing being presided over by the head of department.
“In fact, to the contrary, given the fact that discipline is functional to the workplace, it is most appropriate that the head of department should preside over the hearing.
“By virtue of being head of department, it does not mean that the second respondent (Nkabinde) has a vested interest in the outcome of the disciplinary.
“To the contrary, he has a duty to the first respondent (ENPF) to ensure that the hearing and whatever outcomes are valid, sustainable and competent,” added Mango.
She said it was speculative of Gamedze to presuppose that the outcome of the hearing would be to his detriment, and there was no basis for it.
The general manager corporate services informed the court that there was no requirement, both in terms of the principles of natural justice and the disciplinary code, that the chairman of the hearing should be from another department.
Initiator
She submitted that it was policy that when the initiator was a manager, somebody senior to the initiator should preside over the disciplinary hearing.
This, according to Mango, was to avoid a situation wherein managers at the same level were presiding and initiating disciplinary hearings.
She pointed out that Gamedze did not report to Nkabinde but to the senior compliance officer and the manager compliance and reconciliation. She said there were few instances in which Nkabinde may engage with Gamedze.
Mango said the ruling that Gamedze sought to impugn was handed down on June 30, 2022. She said he waited seven days to institute the court proceedings and gave them unreasonable timelines to consider his application.
She informed the court that a litigant was not entitled to wait until the eleventh hour before launching an application and contending that it was urgent.
ENPF is represented by Zweli Jele of Robinson Bertram. The matter is pending in court.