The Industrial Court of Eswatini has dismissed an application by a senior compliance officer at the Eswatini Royal Insurance Corporation (ESRIC), who sought to declare unlawful the involvement of the company's human resources manager in initiating disciplinary charges against her. Siphiwe Mdluli had approached the court with concerns that the same HR manager could later participate in determining her sanction, potentially creating prejudice. The court, however, found that Mdluli's fears were based on conjecture rather than concrete evidence.
Mdluli was 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 HR manager at different stages of the disciplinary process. The court examined the disciplinary procedures contained in the Disciplinary Code and Procedure signed by the union and ESRIC on November 28, 2017.
The Disciplinary Code and Procedure 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, while Clause 8 regulates serious misconduct cases that may result in dismissal. Mdluli had challenged the arrangement, arguing that it was undesirable for the HR manager to become involved twice in an employee's disciplinary case.
Judge Manene Thwala, sitting with nominated members M.T.E. Mtetwa and A.M. Nkambule, 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. 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.
The court 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 the Swaziland Union of Financial Institutions and Allied Workers (SUFIAW) had participated in negotiating and agreeing to the disciplinary rules with the employer.
The judgment emphasised the binding nature of collective agreements between employers and employees. 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. The court's decision was delivered on November 3, 2026. The case highlights the importance of adhering to contractual agreements and the role of courts in adjudicating disputes.
Key points
- The Industrial Court of Eswatini has dismissed an application by a senior compliance officer at ESRIC, challenging the role of the HR manager in disciplinary proceedings.
- The court found that the applicant's fears of prejudice were based on conjecture rather than concrete evidence.
- The judgment emphasised the binding nature of collective agreements between employers and employees.
