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MBABANE – The Industrial Court has ordered that the disciplinary hearing of a Pigg’s Peak Hotel employee be started afresh before a new chairperson.

She is charged with dereliction of duty and insolence, among other charges.

Judge Banele Ngcamphalala said from the facts of the matter, and evidence adduced by the employee, Gabsile Siyaya, she had set out exceptional circumstances warranting the court to intervene and question the conduct of the chairperson.

The Chairperson, Mfundo Xaba found that the point of law raised by Siyaya, that her charges were time barred, could not stand.

The chairperson said Siyaya had been unsuccessful in proving that there was an unreasonable delay, of five to seven months, in initiating the disciplinary enquiry.

The chairperson also found that the employer had given a reasonable explanation that due to the alleged offences being ongoing, the employer carried out its investigation, which was concluded when, in October 2022, required Siyaya to show cause why the disciplinary proceedings should not be instituted against her.

Decision

The court set aside the decision of the chairperson and dismissed the hotel’s points in lime.

The judge said the application before court by Siyaya was correct, as it was evident that the chairperson had failed to carry out his duties vis a vis the disciplinary hearing processes.

“The chairperson had the duty to carry out an enquiry and fully ventilate the point as raised by the applicant, as this point determined whether the matter would proceed on the merits, it went to the heart of the matter. However, the chairperson failed to fully dismiss the point, but instead proceeded to the merits of the matter without ventilating the point as raised by the applicant and further left the doors open for the parties to again raise the same issues during the hearing. Clearly this was an irregularity,” said the judge.

Jurisdictional

Siyaya began by addressing the hotel’s point in limine, which was that the she had failed to set out the jurisdictional facts to warrant that the court should intervene in the ongoing disciplinary hearing.

She submitted that the disciplinary hearing was at a preliminary stage, as she had not pleaded in the matter, but what was before the chairperson was a jurisdictional point. It was her submission that Xaba had a duty to deal with the time bar preliminary point, before dealing with the merits of the matter.

It was her further submission that it was strange that the respondent (hotel) had raised the point of jurisdiction before the court, when it was the same respondent that agreed to a stay of the disciplinary hearing, while she approached the court.

In closing on the point, it was her averment that the disciplinary hearing could not be referred to as incomplete hearing, as the merits itself had not started.

Siyaya said the chairperson would deal with the merits of the matter.

The applicant gave a brief background of the matter. She said her grievance dated back to 2019, when she was suspended with full pay on the basis of investigations on alleged misconduct.

However, she said was never charged and her suspension was lifted.

It was her averment that the changes were at the insistence of Leonard Shongwe, who was the acting general manager, who proceeded to call the police on her. Siyaya submitted that Shongwe’s conduct had always been that of wanting to humiliate her and also force her out of the workplace.