Š‘’”‹–‡ ‡’Ž‘›‡‡ ƒ……—•‡† ‘ˆ ‡ƒ–‹‰ —’ƒ‹† ˆ‘‘† —ˆƒ‹”Ž› †‹•‹••‡†

MBABANE – The Industrial Court of Appeal has found that the services of an employee of Shoprite, who was dismissed after being accused of eating unpaid for food items in the store, were unfairly terminated.

Nomcebo Masango was dismissed for misconduct after a disciplinary hearing. Her dismissal was based on &&TV footage and a confession she had purportedly made. She denied that she was the person appearing on the video footage.

The appeal court concluded that the confession was made under duress and the video footage was never pre sented as evidence during the hearing.

The chairperson of the hearing was said to have seen the footage during a private meeting with the branch manager, and the appeal court ruled that Masango was procedurally and substantively dismissed.

The court referred the matter to the Industrial &ourt for determination of her relief.

The employees were accused of eating some of the food items in the store because they said they were paid peanuts.

3rior to Masango being suspended from work after being accused of the offence, she was ordered to appear before %ranch Manager Moses Mk honto, who was with one Nkosi ± a senior officer from another branch.

Evidence before court was to the ef fect that at Mkhonto’s office, Masan go was shown video footage and told by Mkhonto that the video footage showed her together with her fellow employees eating unidentified food that belonged to the employer.

there and then that Masango had committed misconduct at the work place, and that the accusation was based solely on the video footage.

Masango denied the allegation, particularly, that it was her image that Mkhonto had seen in that video footage. She argued further that the video recording was poor the images were blurred and were, therefore, unidentifiable.

Denial

Masango denied the accusation and maintained that denial even during her trial.

She was ordered by Mkhonto to record a statement of what she had observed in the said video footage. She complied with that instruction. In her statement, she denied that she had committed the misconduct that Mkhonto was accusing her of. She further denied that it was her image that was seen in the video footage. Masango told the court that Mkhonto tore her statement and ordered her to record another one and admit to the misconduct.

According to Masango, Mkhon to dictated the actual words that he wanted her to write in order to incriminate herself in the alleged misconduct.

8nder cross examination, Masango testified that: “Mr Mkhonto did force me to write a letter as he tore the first letter that I had written and dictated to me what to write in the second letter.

“I was forced to admit that I con sumed the company stock, My /ord.´

She also submitted that Mkhonto threatened to call the police and have her arrested if she did not write what he dictated to her.

She said Mkhonto forced her to write a statement in which she in criminated herself, and it was also not denied by any of the witnesses of the employer.

When evidence that is delivered in court by one party, is not denied by the other party, the court is entitled to treat that evidence as admitted.

The onus, according to the court, was on the employer to provide proof that the written confession or admission which it relied on, as the basis for the dismissal, was obtained freely and voluntarily.

-udge Dumisani Ma]ibuko of the In dustrial &ourt of Appeal said Shoprite failed to provide the reTuisite proof and conseTuently failed to discharge the onus.

Masango, according to the Mudge, in the pleadings as well as the testimony before the Industrial &ourt, she was consistent in challenging the manner the statement was written and signed.

Evidence

“The employer failed to provide proof that the aforementioned state ment was written and signed freely and voluntarily. &onseTuently, that statement should have been excluded from the evidence, on the basis that it was not written and signed freely and voluntarily. In other words that state ment did not comply with the rules of evidence,´ said -udge Ma]ibuko.

The appeal court found that the Industrial &ourt erred in law further by disregarding the Masango’s un controverted evidence to the effect her statement was written and signed by her under duress.

The appeal court also pointed out that the Industrial &ourt made an error of law by failing to apply the estab lished legal principle, that a statement that has been presented before court as an admission or confession , against its author, is inadmissible if it was involuntarily issued or written.

“The court overlooked this principle of law, and that error led to an errone ous Mudgment.

“Alternatively, the court made an

error of law in its analysis of the ev idence , when it failed to exclude the alleged statement from the evidence, on the basis that it had not been issued freely and voluntarily, by its author.´

The &hairperson of the hearing, Matsibo Mahlalela, confirmed in her evidence that the employer did not present the video footage at the disci plinary hearing. However, Mahlalela had been shown the video footage, by the employer prior to the disciplinary hearing being carried out.

The employer presented its evidence to Mahlalela in a private meeting and Masango was not invited. She was neither in attendance nor represented at that meeting.

Mahlalela was, therefore, persuaded to accede to the evidence of the em ployer in a private arrangement, which excluded the employee.

“The private meeting which took place between the employer and the chairperson, especially to discuss the merits of the proposed disciplinary hearing, was irregular and conseTuent ly unfair to the employee.

“When Mahlalela took her position as chairperson at the disciplinary hear ing, she already knew the employer’s evidence but did not disclose that fact to the employee. The chairperson was obligated to disclose that fact to the employee, so that the latter would make an informed decision, whether or not to apply that the chairperson should recuse herself. %y withholding such crucial information, the chairper son acted dishonestly and procedurally unfair toward the employee,´ -udge Ma]ibuko added.

The evidence, according to the Mudge, indicated that Mahlalela col luded with the employer in order to convict the employee of misconduct.

)urther, the Mudge mentioned that the private meeting between the employer and Mahlalela, as well as the viewing

(Pic sourced from internet) The Industrial Court of Appeal has found that the services of an employee of Shoprite, who was dismissed after being accused of eating unpaid for food items in the store, were unfairly terminated.