ESWADE HR disciplinary hearing shelved

MBABANE – ESWADE will for now not proceed with the disciplinary hearing of its Human Resources and Administration Manager, Edwin Manana, who allegedly procured a wrong car for the CEO.

ESWADE representative, Sdumo Mdladla of S.V. Mdladla and Associates, informed the court that Eswatini Water and Agricultural and Development Enterprise (ESWADE) undertook not to proceed with Manana’s hearing pending finalisation of the matter.

ESWADE also filed a notice of intention to oppose Manana’s application and will file a comprehensive answering affidavit on or before August 2, 2022. Manana will file a replying affidavit together with heads of argument on or before August 4, 2022. The matter was postponed to August 8, 2022. Industrial Court Judge Lungile Msimango is presiding over the matter.

Dishonesty

Manana, who is represented by Kwanele Magagula of Sithole and MagagulaAttorneys, is facing a charge of dishonesty and gross negligence. In the charge of dishonesty, Manana is alleged to have procured a Toyota Prado instead of a Toyota Fortuner for the chief executive officer (CEO).

According to the charge sheet, on February 18, 2021, he was allegedly instructed by the Board to procure a motor vehicle for the CEO using a Toyota Fortuner benchmark. He allegedly failed to disclose to the Remuneration Committee that the specifications he submitted were not benchmarked on a Toyota Fortuner but a Toyota Prado.

“As a result, there has been a breach of trust, as the Board was at all material times under the impression that its instructions would be carried out in its precise content and form,” reads part of the charge.

In the second charge, Manana allegedly failed to take the necessary steps and procedures to ensure that the instructions of the Board to procure a motor vehicle using a Toyota Fortuner benchmark for the CEO were followed.

Negligence,

As a result of the alleged negligence, the output of the procurement was contrary to the instructions and reasonable expectations of the Board and this resulted in the employer incurring a further cost that it would have not incurred if due process had been followed.

Manana has approached the Industrial Court and he is seeking an order interdicting and restraining his ongoing disciplinary hearing pending the final determination of his other prayers.

He wants the court to declare the decision of ESWADE to institute disciplinary charges against him as contravening Clauses 15.1, 15.4 (a) and15.9 of the ESWADE Disciplinary Code and should be set aside.

Alternatively, he is seeking an order reviewing, setting aside and correcting the decision of the Chairman of the hearing, Mxolisi Dlamini, to refuse to recuse himself and or to remove him as the chairperson of the hearing.

He further prayed that the hearing should start afresh. The applicant, Manana, also wants the court to direct ESWADE to comply with its disciplinary code and appoint an internal chairperson and uplifting his suspension and declaring it null and void and not compliant to the disciplinary code.

The hearing, according to Manana, commenced on April 5, 2022, at the Hilton Garden Inn Hotel. He said before the matter commenced on the merits, he raised a preliminary objection on the basis that the disciplinary hearing did not comply with the ESWADE Disciplinary Code.

He said he informed the chairman of the hearing that there was non-compliance with Clause 15.4 (a) and15.9. Manana said Clause 15.4 (a) provides that discipline is a line management function, which shall be dealt with by all managers or supervisors. Clause 15.9 provides that the hearing itself should be held within reasonable time of the alleged misconduct being found out.

Investigation

He narrated that at the realisation of possible misconduct a supervisor manager shall contact the HRA Department staff who shall consequently assist in the initiation of a disciplinary investigation.

The Charge sheet would be completed with the appropriate charge (s) and the affected employee formally served with a formal charge. A statement would be recorded from the accused employee and possible witnesses to establish whether a prima facie case exists to progress the matter to a hearing.

.Manana told the court that the alleged contravention of disciplinary code Clause 15.4(a) was that, while the Code specified that ‘discipline is a line management function, which should be dealt with by all managers or supervisors’, in his case, the decision to institute disciplinary proceedings was taken by the Board of Directors.

“The Board usurped the powers and functions of management, as again exhibited by the non-adherence to Clause 15.9 of the Code, which deals with a disciplinary investigation. In terms of this clause, the realisation of a possible misconduct should be that of the supervisor manager. Quite the contrary herein, the Board of Directors took it upon itself to determine that there was misconduct on my part,” he argued.

Board

He alleged that the Board did its own investigation and consequently instructed the CEO to proceed and lay charges against him. Manana said this preliminary point was dismissed by the chairman of the hearing.

Manana further told the court that the specs he had submitted were leaning in favour of a Toyota Fortuner. The specs he said he had developed but were subsequently changed by the procurement manager, were in fact what was closer to the Board resolution.

“That is leaning in favour of a Toyota Fortuner. The procurement manager, being the one who changed the initial specs, is not accused of any misconduct. To that extent, may I

“It was evident that on an application of Clause 15.9, there was no evidence upon which to progress the matter to a hearing. However due to the usurpation of management disciplinary functions by the Board, Clause 15.4 (a) was contravened when the Board issued an instruction to the CEO to discipline me,” he added.