Court dismisses ESRIC senior compliance officer’s disciplinary challenge

MBABANE – The Industrial Court has dismissed an application by an Eswatini Royal Insurance Corporation senior compliance officer, who wanted the court to declare unlawful the involvement of the company’s human resources manager in initiating disciplinary charges against her.

The employee, Siphiwe Mdluli, had concerns that the same official could later participate in determining her sanction.

In a judgment delivered yesterday, Judge Manene Thwala, sitting with nominated members M.T.E. Mtetwa and A.M. Nkambule, dismissed the application brought by Mdluli and the Swaziland Union of Financial Institutions and Allied Workers (SUFIAW) against ESRIC and Sithembiso Dlamini, cited in his capacity as the chairperson.

Mdluli had approached the court seeking to challenge the role of the human resources manager in the disciplinary proceedings instituted against her.

She is facing two charges of gross neglect of duty and gross insubordination. At the time the application was brought, the disciplinary hearing was part-heard but had been suspended following the institution of the court proceedings.

The central issue raised by Mdluli was the involvement of the human resources manager at different stages of the disciplinary process.

According to the judgment, Mdluli wanted the court to declare unlawful the HR manager’s participation in initiating the charges against her, particularly because the same official was expected to become involved again at the sanction stage of the disciplinary process.

Their concern was that the arrangement could create prejudice if the HR manager disagreed with the recommendations made by the disciplinary chairperson.

In considering the application, the court examined the disciplinary procedures contained in the Disciplinary Code and Procedure signed by the union and ESRIC on November 28, 2017.

The code forms part of the appendices to the parties’ Recognition Agreement and sets out the procedures to be followed when disciplinary charges are instituted against employees.

Clause 3 of the code regulates the initiation of disciplinary proceedings.

Under Clause 3.1.7, once an employee submits a letter of explanation, the manager is required to make a decision and communicate it to the employee within five working days of receiving the explanation.

Clause 3.1.8 provides that where the manager decides that the matter should proceed to the next level of the disciplinary process, the decision must be communicated in writing to the human resources manager within 10 working days of receiving the employee’s explanation.

Mdluli’ concerns also related to Clause 8 of the disciplinary code, which regulates serious misconduct cases that may result in dismissal.

Clause 8.3 states that the presiding officer at stage four must, after concluding the hearing, submit recommendations to the HR Manager, which may be either dismissal or acquittal.

It was this arrangement that Mdluli challenged, arguing that it was undesirable for the HR manager to become involved twice in an employee’s disciplinary case.

She was concerned that the HR manager could potentially be opposed to the disciplinary chairperson’s recommendations when the matter reached the sanction stage.

However, Judge Thwala found that Mdluli had not provided tangible facts to support her concerns.

The court held that Mdluli’s fears were based on conjecture rather than concrete evidence demonstrating that the HR manager’s involvement would result in prejudice.

In its judgment, the court emphasised that courts exist to adjudicate live and concrete disputes involving questions of law or fact, rather than to provide comfort to parties over speculative concerns.

Judge Thwala further held that even if its conclusion on the absence of evidence were incorrect, the application would still fail because the disciplinary code being challenged was a contractual document agreed upon by the union and ERICO.

The judge noted that SUFIAW had participated in negotiating and agreeing to the disciplinary rules with the employer.

The court found that it would be unconscionable to allow the union to negotiate and settle on a set of rules governing disciplinary hearings before subsequently challenging the very provisions it had helped establish.

The judgment further emphasised the binding nature of collective agreements between employers and employees.

“Once social partners agree on rules governing a particular subject, both parties are required to comply with those rules without exception,” reads the judgment.

The court stated that signed collective agreements automatically become part of employees’ terms and conditions of service.

It further held that an individual employee cannot waive or withdraw from the provisions of such an agreement.

Consequently, the court concluded that Mdluli’s case could not succeed and dismissed the application in its entirety. Mdluli and SUFIAW were represented by Sibusiso Dlamini, while ESRIC was represented by Banele Gamedze of Musa M. Sibandze Attorneys.

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