Times Of Swaziland: NQOBILE SAYS NO FAIRNESS IN EPTC DC, WANTS NDUMISO OUT

NQOBILE SAYS NO FAIRNESS IN EPTC DC, WANTS NDUMISO OUT
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Kwanele Dlamini on 17/05/2024 06:44:00


MBABANE – Suspended EPTC Corporate Affairs Manager Nqobile Magagula says her
disciplinary hearing is just a box-ticking exercise to ensure that she is
dismissed.
Magagula said fairness was not one of the attributes of the disciplinary
hearing. She also argued that the disciplinary hearing panel was allegedly not
composed in terms of the Disciplinary Code. She said her attorney questioned the
attendance of the Chairperson, Ndumiso Mamba, and the initiator. According to
Magagula, Mamba was not supposed to be sitting in the hearing.
Magagula, who has been charged with gross misconduct, dishonesty, gross
dishonesty and misappropriation, was on Wednesday granted an order interdicting
the corporation from proceeding with the hearing, pending finalisation of the
matter in the Industrial Court.
Review
She wants the court to review and set aside the decision of the Chairperson of
the hearing, Mamba, for refusing to recuse himself from the proceedings, which
is allegedly in violation of the disciplinary and grievance procedure.
She also prayed for an order interdicting EPTC and Mamba from continuing with
the hearing, pending the finalisation of these court proceedings.
In her founding affidavit, Magagula, in demonstrating the alleged defect in the
sitting and/or in the composition of the panel, her attorney demonstrated that
Mamba was not catered for in the disciplinary code. She said her Lawyer Banele
Gamedze demonstrated that for each offence, the rightful individual to give out
a sanction was a member of the management.
According to Magagula, the chairperson was directed to the schedule of offences,
which showed who the presiding officer should be. She alleged that the initiator
did not in any way dispute what was being submitted but made, among other
things, submissions on fairness.
“What was not in dispute is that, the disciplinary code and grievance
procedure form part of the terms and conditions of my employment and I am
advised that an employer cannot willy-nilly deviate without getting my
consent.“The initiator went on to say that I am somewhat senior and it was
always neat to have external representation. The initiator and/or the first
respondent (EPTC) failed to direct where exactly the agreement to deviate was
derived from,” Magagula argued.
She averred that the employer’s defence was that there was no prejudice to be
suffered by her, even if the code was not being followed. The corporate affairs
manager submitted that the human resources representative, whose role was
explained, made submissions on why the code should be breached and went on to
make submissions in favour of EPTC. She alleged that her attorney was never
given the opportunity to respond to that, but the chairperson went on to give
directions as to when he would deliver his ruling.
“May I place it on record that there are people who are more senior than I am,
who could have chaired the disciplinary hearing. The managers are above my
grade, which is D4. “May I also place it on record that there are senior
managers such as one Mr Kenneth Dlamini, Musa Mabuza, Wilson Shongwe, Sabelo
Dube, Lungile Nxumalo, Mxolisi Dlamini and others. Had I been given the
opportunity to respond, I was going to demonstrate that there are individuals
above me who are senior and there are those at my level who could represent me,
prosecute the matter and also chair the hearing.”
Ruling
She placed it on record that it was requested on her behalf to be at least given
enough time to consider what to do with the ruling once Mamba delivered same.
She said there was no positive response from Mamba and having raised the issue,
on the day the ruling was delivered, her points of law were dismissed and the
parties were told to proceed with the hearing. “I was saved by the
initiator’s unreadiness.
She informed the court that Company Secretary Mtshali was the rightful person to
issue the notice of the hearing based on the organogram. She said what was very
strange was that the said organogram was never displayed at the hearing for all
parties to see. Magagula said she reported directly to Mtshali and it was wrong
for Mamba to find that the notice was in compliance with the disciplinary code.
“The second respondent (Mamba) also finds that the employer has the right to
depart from the code where exceptional circumstances prevail. The employee is
not expected to be consulted. I am advised that the finding is incorrect and not
supported by legal authorities.” EPTC Head of Human Resources Nompumelelo
Ngabisa Kunene told the court that there was evidence to the effect that
Magagula was engaged in a systematic ploy to frustrate and delay the
investigation process.
She said it was these machinations that necessitated the extension of the
suspension in order to facilitate the investigation. She described the
investigation of the matter as very complex because it entailed the employment
of cyber experts and the analysis of computer data, as well as an appreciation
of the functions of certain social media platforms.
Confirmed
Kunene confirmed that the correspondence was exchanged and reiterated that there
was nothing untoward in Mtshali signing off the correspondence as Company
Secretary. EPTC is represented by Zweli Jele of Robison Bertram. The first
charge is gross misconduct. In this charge, EPTC stated that it has prima facie
evidence against Magagula, which allegedly implicates her in this offence in
that she is alleged to have used the employer’s property and allowed third
parties to use the said property for their benefit.
In the second charge of dishonesty, Magagula, in breach of her duty of good
faith towards her employer, allegedly failed to disclose her involvement in a
private business known as Zinoky Investments, which she operated in conjunction
with members of her family when there was a duty to make such disclosure. In the
third charge, Magagula is accused of gross dishonesty, in that when requested by
management to share information and access credentials to the Facebook page,
with the sole intention to mislead the corporation, she allegedly provided
untruthful details on the matter.