NQOBILE SAYS NO FAIRNESS IN EPTC DC, WANTS NDUMISO OUT

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.

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