PAY SUSPENDED MANAGER E783 000 – COURT

MBABANE – Nedbank Swaziland has been ordered to pay its suspended head of retail, Phesheya Nkambule, about E800 000 arrear salaries.

The Industrial Court issued the order after Nkambule took the bank to court for suspending him without pay since June 2019. The court ordered Nedbank to reinstate his salary forthwith with effect from July 2019. The bank has also been ordered to reinstate all benefits due to him in terms of his contract of employment. The benefits include medical aid and mobile phone.
When Nkambule took the matter to court last year, he demanded three months’ salary totalling E293 674.74 which translates to E97 882.58 per month. As at the end of this month from July last year, the money to be paid to him by the bank as per the order that was issued by Judge President Sifiso Nsibande is E783 060.64.

 Defrauding

Nkambule, who was represented by Meluleki Ndlangamandla of MLK Ndlangamandla Attorneys, was suspended for his alleged involvement in defrauding the bank a sum of about E2.9 million.
He was initially suspended on full pay pending certain investigations. Nkambule was served with charges on February 14, 2019 and invited to appear at a disciplinary hearing on February 25, 2019. The hearing was scheduled for April 15, 2019 and it was postponed for continuation in May last year.

In the same month, Nkambule was called upon to give reasons why the terms of his suspension should not be varied from suspension on full pay to suspension without pay until the hearing was finalised.
The judge president, in his judgment, said Nkambule responded on May 23 and on May 28, Nedbank advised that the terms of his suspension had been varied to suspension without pay effective from June 1, 2019.

Benefits

He was also informed that his benefits granted to him in terms of his contract of employment were terminated.
Nkambule has not been paid his salary since June 2019 in line with the bank’s letter varying his suspension to without pay pending the disciplinary enquiry.
The head of retail argued that the case was premised on allegations and that the bank’s conduct constituted a breach of the employment contract. He told the court that he was entitled to his salary and benefits bestowed on him by the contract of employment for as long as he was an employee of the bank.

He conceded that in terms of Section 39(2) of the Employment Act, an employer is allowed to suspend an employee without pay provided that the suspension without pay would not exceed one month.
He also conceded that the bank was entitled to vary the terms of his suspension for only the month of June last year. Nkambule said any continued withholding of his salary and benefits beyond June 2019 was unlawful and in breach of Section 39 of the Employment Act.

Nedbank opposed Nkambule’s application and argued that he interfered with its exercise of disciplinary authority by filing a number of applications in court. This, according to the bank, led to a delay in finalising the hearing.
Nedbank also argued that the court should take a purposive interpretation of Section 39 of the Employment Act, which was to ensure that an employer held and completed a disciplinary hearing within a reasonable time.

The bank further raised the issue of a counterclaim of E2.9 million which it had filed. The judge president said the court did not take cognisance of disputes that had not been reported and conciliated upon. According to the court, the issue of E2.9 million was not raised at CMAC and the certificate before court showed that the nature of the dispute was non-payment of salary. The bank was represented by Zweli Jele of Robinson Bertram.
The court said the bank should have reported the counterclaim as its counter dispute before CMAC so that it would be conciliated upon.
“In the circumstances, we direct that the respondent (Nedbank) reinstate the applicant’s (Nkambule) salary forthwith with effect from his July salary. This includes all benefits due in terms of his contract of employment,” said the judge president.

Circumstances

The court mentioned that in the circumstances, it was unable to take cognisance of the counterclaim in its current form. Nedbank has filed a review application for the ruling of the court and to stay execution of the judgment. These matters are pending before the Industrial Court. 

Nkambule is one of the bank managers who were investigated by the bank over the alleged misappropriation of a sum of about E2.9 million belonging to the bank.
The head of retail was charged with nine counts. He is alleged to have been aware that several invoices which were presented by service providers were fabricated in that the services were not rendered but he went ahead and authorised payment of those invoices without verifying that the work had been done.

Nkambule claimed that the bank accused him of frustrating the hearing and faking his sickness.
He said the bank issued a letter advising him that the terms of his suspension had been varied to without pay with effect from June 1, 2019.
He alleged that the employer, within the month of June after suspending his salary, facilitated that the usage of his mobile contract benefit with MTN Eswatini be terminated.

Contract

This was allegedly done through a short message service (SMS) on the weekend of June 28, 2019. Nkambule told the court that he was still an employee of the bank and he was entitled to the mobile contract benefit.
He alleged that his medical aid providers advised him that Nedbank told him that his employment had been terminated and should be removed from the benefit.

Since his salary was withheld, Nkambule said on June 25, 2019, all his loans and overdrafts were due and should be paid within a period of 14 days.
Should he fail to pay as the bank advised, Nkambule alleged that his employer informed him that they would institute legal action against him.

Nkambule alleged that Nedbank informed him that his salary would not be reinstated and that it was within the bank’s right to withhold it. The matter will be heard on July 17, 2020.

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