CMAC
CASE LAW
Compiled by
Nathi Gumede BA Law, MBA
CMAC CASE LAW - February 2012
INDEX BY SEQUENCE NUMBER
Absenteeism – 18
Absolution from the Instance – 44, 59
Arbitration – 30, 35, 36
Admissibility of Evidence – 12, 14, 16, 20, 28
Aggravating factors – 7
Appeal – 33, 41, 42
Appropriate sanction for theft - 35
Audi Altarem Partem – 8
Balance of probabilities – 42, 43, 44, 57, 58
Common Law Employee – 26, 27, 31, 32
Conciliation – 12
Conditions of Service – 9, 10
Consultation – 11, 12, 29, 34
Contract of Employment – 45, 60, 79
Contractual deductions - 27
Contract of Service - 26
Constructive Dismissal – 7, 8, 46, 61, 66
Conviction – 34, 35, 44, 47, 48
Default – 4 , 5, 25
Default Judgment – 2, 3, 20
Dishonesty – 16, 20, 21, 22, 27, 39, 41, 42, 43, 52, 55, 56, 61
Dismissal – 6, 17, 18, 22, 23, 66
Disciplinary Hearing – 16, 23, 57, 77
Evidence – 12, 16, 20, 23,
Employment Contract – 45
Gross Negligence – 25,
Good Cause - 2
Insolence - 21
Insubordination – 21
Individual action vs Collection action – 24
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Leave – 50, 65
Misconduct – 7,
Mitigating factors – 7
Negotiation – 3
No Work No Pay – 15, 19
Principle of natural justice - 42
Private arbitration – 53
Procedure – 24, 25
Procedural fairness – 29, 30
Recognition Agreement - 47, 62
Reasonable Cause – 2
Reinstatement – 34, 35, 45, 46
Remuneration – 26, 27
Representation – 31, 36, 47, 62
Rescission – 2, 3, 37, 38, 49, 51
Retrenchment – 28, 29, 33, 34, 48, 63,73
Review – 41
Service – 3, 20
Suspension – 69
Sufficient Cause – 2
Terminal Benefits - 15
Tax Directive – 22, 27
Theft – 30
Time Barred – 13, 16, 17, 32, 37,
Under-payment – 49, 64
Urgent Application –
Wages – 5
Warning - 19
Waiver – 14, 16
Willfull damage to property - 77
Variation – 11, 13
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Venue for disciplinary hearing - 18
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1. Acknowledgments
May I first thank the Secretary of the CMAC Executive Director’s, Ms Ncamsile
Magagula who partnered with me in reading the cases, extracting the reasons for the
awards and re-typing the relevant sections of the awards into this document. May I
also thank Ms. Lydia Madolo for closing the gap so well when Ncamie became
indisposed.
This compilation is obviously not my work but the product of hardworking CMAC
Executive Directors Arbitrators called Senior Commissioners and Commissioners.
These include, but are not limited to, the following:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
n.
Mr. Erickson Dlamini – Acting Executive Director 2001-2002
Mr. Siphephiso Dlamini – Executive Director (2002-2010)
Ms Makhosazana Khoza – Senior Commissioner (2001-2010)
Ms Futhi Hadebe – Senior Commissioner (2002-2009)
Mr. Velaphi Dlamini –Senior Commissioner
Miss Lorraine Zwane – Senior Commissioner
Miss Banele Ngcamphalala – Commissioner (Now Registrar of the Industrial
Court)
Ms. Khontaphi Manzini – Commissioner
Mr. Robert Mhlanga – Commissioner
Mr. T. Dlamini – Commissioner (Now Judge of the Industrial Court)
Mr. Velaphi Dlamini – Commissioner
M. Mkhonta – Commissioner
Mr. K. Khumalo – Commissioner
Mr. B. Mtshali – Commissioner (Also, Director of IR and Social Policy at
FSE&CC)
Appreciation also goes to the support staff of CMAC between the years 2001 and
2012.
This is a product of the individuals mentioned above.
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Introduction
This is a compilation of reasons for Arbitration Awards. I have for lack of better phraseology
decided to call the compilation CMAC Case Law.
This is obviously work in progress which will be refined overtime subject to the availability
of resources for further editing by local publishers.
The author welcomed constructive feedback.
Purpose
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The purpose for this compilation is to make case law available to the man in the street
and to provide a basis for academic critique of the reasons for CMAC Awards to
enable improvements in CMAC legal reasoning.
2. JOSEPH ZULU V AFRICAN ECHO / TA TIMES OF SWAZILAND CMAC/STK
077/11
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RESCISION OF DEFAULT JUDGEMENT / GOOD CAUSE
SUFFICIENT CAUSE / REASONABLE PROSPECTS OF SUCCESS
/
Page 3 - “At common law, a party that seeks to rescind a default judgment must
establish ‘sufficient cause’. Judicial decisions abound which hold that the phrases
‘sufficient cause and good cause mean one and the same thing. In this regard, see
the case of Harris v ABSA Ltd T/A Volskas 2006 (4) SA 527
[10] – “Whether or not ‘sufficient cause’/ ‘good cause has been shown to exist,
depends upon whether: (a) the applicant has presented a reasonable and
acceptable explanation for his or her default, (b) the applicant has shown the
existence of a bona fide defense that he is one that has some prospect or
probability of success” (Harris Supra Page 529, Chetty v Law Society Transvaal
764-765 Paragraph A-D)
The test whether sufficient cause or good cause has been shown by a party
seeking relief is dual in nature, it is conjunctive and disjunctive. An acceptable
explanation of default must co-exist with the evidence of reasonable prospects of
success on the merits”
In the decided case of Creative Car Sound and Another vs Auto Mobile Radio
Dealers Association PTY LTD 2007 4 AT 546 at page 555 paragraphs 44-46, the
Court held that
“…the applicants have to show that their application has been made bona
fide. They must also demonstrate that they have a substantial and bona
fide defense to the respondent’s claim which has some prospects of
success”
[46] In essence, the applicants are required to demonstrate reasonable
prospects of success on the merits. This in my view means that the
grounds of the defense must be set forth with sufficient particularity and
detail to enable the court to conclude that there is a bona fide case and that
the application is not being brought for the purpose of delay”
[31] “In establishing the second requirement of just cause i.e. bona fide case that
has some prospects of success, the applicant must set out the allegations of fact
that would satisfy the Commission that his claims are not spurious but are
genuine”
3. ANGELO THEMBA NKAMBULE V GUARD ALERT SECURITY PTY LTD
CMAC SWMZ 418/11
RESCISION OF DEFAUT JUDGMENT / SERVICE / NOTIFICATION
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[8] Due to the severity of Section 81 (7) of the Industrial Relations Act 2000 (as
amended), it is incumbent on the Commissioner to scrupulously ensure that pro
proper service has been effected and that all affected parties have been properly
notified of: the date, time, and venue of the conciliation meeting; the
consequences should the party fail to attend without reasonable exercise. See
DONG SHENG PTY LTD T/A NEW YORK CITY STORE V KHULIZONKE
DLAMINI AND OTHERS IC 181/07.
[9] Authority exists for the proposition that the first enquiry is whether the
Applicant was properly notified. If the question is answered in the affirmative, the
inquiry proceeds to ascertain as to why then did he fail to attend. See Northern
Training Trust v Maake and Others (2006) 27 ILJ 838 (LC).
4. CMAC 038/10 ALFRED DLAMINI V SHOPRITE CHECKERS/OK BAZZARS
DEFAULT
[5.8] “In a host of Ex parte trials, the court has consistently held that by its default, the
Respondent has failed to discharge the statutory onus resting on it in terms of Section 42
of the Employment Act 1980 and consequently found in favour of the Applicants.”
SEE 292/2001(IC) BHEKISISA H. MOTSA AND 2 OTHERS V CAPE CONTRACTS
PTY LTD (IC), 128/2003 (IC) SIBONGILE MASEKO V MEAT WORLD
BUTCHERY, 75/2004 (IC) DUMSANE SIMELANE & ANOTHER V SWAZILAND
BREWERS, 103/2005 (IC) ALBERT MAGAGULA V GENERAL SALES AND
DISTRIBUTORS, 31/2005 (IC) VICTOR MASHININI V BRAHBUDAS
SHANDRAKAT, 207/2006 MPHIKELELI SIFANI SHONGWE V PRINCIPAL
SECRETARY-MNISTRY OF EDUCATION
5. 292/2001(IC) BHEKISISA H. MOTSA AND 2 OTHERS V CAPE CONTRACTS
PTY LTD (IC),
DEFAULT
6. Nhlanhla Matse v Mr. Trailer Hire CMAC - SWMB 190/11
CRIMINALITY OF NON-PAYMENT OF WAGES
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“It is unlawful for an employer to fail to pay an employee his/her wages when
they become due”
“Such a failure is actually a criminal offence in terms of Section 64 (a) of the
Employment Act
7. Rocky Mkoko and Manket PTY LTD T/A KFC - 814/05 CMAC (K. MANZINI
(Comm) )
DISMISSAL FOR MISCONDUCT / WRITTEN WARNING / REPRESENTATION
/ADMISSION OF GUILT / MULTIPLE UNCONCLUDED PROCEEDINGS / BIAS
/MITIGATING FACTORS / AGGRAVATING FACTORS
(PAGE 57) The Position in the law (Grogan J. Workplace Law 8th Edition 2004:
157) is that a worker dismissed if it is proved that he or she has committed an act of
misconduct. In order for this to be proved, the following must be established
a.
b.
c.
d.
e.
f.
A workplace rule must be in place
The Employee must be aware of the rule
The workplace rule must be contravened
The rule must be reasonable
The rule must be consistently applied
The dismissal must be an appropriate sanction in light of the breach of the
said rule.
(PAGE 63) It is trite that the law requires that an employer ought to issue a written
warning, only after proper enquiry during which the accused worker should be
permitted to defend himself by stating their case, or calling witnessed (Grogan J
Supra page 99)
According to the case of Trent vs Mawer and Delport (PTY) LTD (1996) 9 BLR
1192 (IC), the employee should also be permitted to be represented by a fellow
employee or union official at such a hearing.
The employee, by signing, does not necessarily admit guilt, but merely acknowledges
receipt of the warnings (See Grogan J. Supra page 99).
(PAGE 65) In the case of SESMAWU vs Tracar Divivion for SWAKI Investment
Corporation 211/99:5 (IC), it was held that the action for the respondent in instituting
new charges against the applicants whilst the initial charges had still not been
determined was contrary to the basic cardinals of natural justice. This was because the
applicants were being tried for the same facts in installments, and in different
unconcluded proceedings. The learned judge in that case expressed his chagrin at the
conduct and stated that the applicant would suffer serious prejudice “if the respondent
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is allowed to willy-nilly abuse its prerogative without regard to the principles of fair
play and reasonableness.”
It is clearly stated by F. Jaarsveld and S. Van Eck, Principles of Labour law, 3rd
Edition that in order for a disciplinary enquiry to be in keeping with procedural
fairness, the decision of the hearing must be made known to the employee.
(PAGE 66) It is trite law that a presiding officer must be unbiased, and must consider
all pertinent facts relating to the charge in the judgment that he makes (see F.
Jaarsveld and S. Van Eck, Principles of Labour law, 3rd Edition page and also
STAWU&PEP Stores 2004 (ILJ 632 (CCMA and Telkon SA vs CCMA (2002)ilj
(lc)
It has become standard labour practice that employees ought to be afforded the
opportunity to advance evidence and arguments in mitigation of the sanction and also
to allow the employer to advance aggravating factors if need be (See A. Pons &
Deale “Labour Relations Handbook” (2000) Section 2 page 32)
8. Alfred Mhlanga vs Enviro Scrap Metal MNZ 624/06 (CMAC) – (B. MTSHALI)
CONSTRUCTIVE DISMISSAL
(PAGE 7) The employee’s decision to resign rather than accept unlawful deductions
in the salary constitutes constructive dismissal (Small & Others vs Noella Creations
(1986) 7 ILJ 614 (IC) Riekert’s Basic Employment Law, 2nd Edition, John Grogan.
Page 98-99).
(PAGE 8) Andre Van Niekerk in his book “Unfair Dismissal”, 2nd Edition, page 21,
states that: “In most instances, a constructive dismissal is triggered by a resignation.
This is not the only form of termination of the employment by an employee; it would
seem that an employee may simply abscond from employment and would not be
precluded from claiming a dismissal”
9. Ncobile Maseko and Mbheleja (Siteki Filling Station) STK 127/07 (K.
KHUMALO)
NATURAL JUSTICE- AUDI ALTERAM PERTEM
In the matter between Swaziland Federation of Trade Unions (SFTU) vs The
President of the Industrial Court and the Minister of Enterprise and Employment
11/97 (ICA), the learned Judges of appeal quoted with approval the following passage
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in Baxter, Page 540, wherein Lord Wright states the policy of the courts in 1940 as
follows: “if the principles of natural justice are violated in respect of any decision, it
is indeed, immaterial whether the same decision would have been arrived at in the
absence of the departure from the essential principles of natural justice. The decision
must be declared a non-decision”. I thus find that on a balance of preponderance, the
Respondent flouted the principles of natural justice, particularly the audi alteram
partem rule.
10. Boykie Gwebu vs Ntombenkulu Dlamini T/A Nkosephayo Transport CMAC
557/07 Mhlanga R Arbitrator
CONDITIONS OF SERVICE
Citing France Dlamini v A to Zee PTY Ltd IC 86/2002 (Nduma JP)
11. Usuthu Pulp Company Limited T/A Sappi Usuthu vs Swaziland Agricultural
Plantations Workers Union and Another 16/06 7 17/06 (Mamba JA)
CONSULTATION
P11 “Consultation on the other hand, involves seeking information or advice on, or a
reaction to, a proposed cause of action. It envisages involving the consulted party, an
opportunity to express its opinion and make representations, with a view to taking
such opinion into account. It certainly does not mean merely affording an opportunity
to comment about a decision already made and which is in the process of being
implemented.”
Citing Archie Sayed vs Usuthu Pulp Company Limited 432/06 (Dunseith JP)
12. Archie Sayed vs Usuthu Pulp Company Limited 432/06 (Dunseith JP)
CONSULTATION
‘An opportunity to express its opinion and make representations, with a view to
taking such opinion or representations into account. It certainly does not mean
affording an opportunity to comment about a decision already made and which is in
the process of being implemented.”
13. Dr. Crescent Tibagambirwa vs Ministry of Health and Social Welfare and 2
Others CMAC MNZ 237/07 (Mkhonta Arb)
UNILATERAL VARIATION OF APPLICANT’S TERMS AND CONDITIONS OF
SERVICE
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P31 “John grogan: Workplace Law, 8th Edition (2005) Juta & Co Ltd at Page 272-274
argues that:
“Under the common law, an employer is not permitted unilaterally to amend the
terms of a service contract with an employee. If an employer changes an
employee’s terms and conditions of service unilaterally, the employee has the
election either to resile from the contract or to sue for damages in terms of the
contract. The prohibition on variation includes the lowering of the status of the
employees and or change in the nature of the work they are required to
perform...Most unilateral variations of terms and conditions of employment can
be attacked as breaches of contract”
Cited Archie Sayed vs Usuthu Pulp Company Limited 432/06 (Dunseith JP) and
Usuthu Pulp Company Limited T/A Sappi Usuthu vs Swaziland Agricultural
Plantations Workers Union and Another 16/06 7 17/06 (Mamba JA)
In Riverview Manor (PTY) Ltd vs Commissioner for Conciliation Mediation and
Arbitration and Others (2003) 24 ILJ 2196, Pillay J [states that]: “Apart from the
absence of any forewarning that his position was in jeopardy or any consultation
about it, it was common cause that the employee’s salary was immutable. That was
the principal issue that the employee found intolerable and caused him to resign.
Having identified the main problem to be the book debts and having found a solution
therefore, the employer’s recalcitrance about consulting about remuneration was
grossly unfair and inconsiderate”.
14. SMAWU vs SPAR CMAC NHO 185/07 (Khumalo Arb)
ADMISSIBILITY OF EVIDENCE FROM CONCILIATION PROCEEDINGS
P5 “I unequivocally and categorically state that conciliation proceedings are..off the
record proceedings and therefore [inadmissible)
15. Paul Mavundla vs Royal Swaziland Sugar Company IC 266/02 (Nderi JP)
TERMINAL OFFENCES
“For a dismissal to be in terms of Section 36 it must not only be for an offence
itemized therein, but the decision to terminate must be fair and just”
16. David Dlamini vs VIP Protection Services CMAC NHO 131/09 Dlamini V Arb)
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TIME BARRED CLAIMS / WAIVER
P7 “In Usuthu Pulp Company vs Jacob Seyama and 4 Others ICA 1/04 the learned
Eberson AJA referred to South African Law case when examining the principle of waiver
in the labour contest. The following cases were referred to with approval:
UPMW vs Strasraad Van Pretoria 1992 ILJ 1563 (NH)
North Eastern District Assn (PTY) Ltd vs Surkhev Ltd 1932 WLD 18 and
NEHAWU vs University of Cape Town 2003 (2) BCCR 154 (KH)
In UPMW vs Strasraad Van Pretoria 1992 ILJ 1563 (NH) De Kok J at 1567-1568
remarked that “Delay is not by itself a waiver. Delay is an element in determining
whether the conduct of the innocent party was such that a reasonable person would
conclude that he has maimed his accrued right to cancel. A mental reservation does not
avail…It is a general principle of law that a party to a contract including a ontract of
employment to whom a right to cancel has accrued by virtue of the other party;s breach,
must elect whether or not he will avail himself of it and that election must be made within
a reasonable time or else the victim loses the right to cancel…Fairnes however dictates
that that disciplinary steps must be taken promptly. Both the staff regulations and
recognition agreement echo the need for prompt action as all time limits must be adhered
to strictly…”
Kranse J in North Eastern District Assn (PTY) Ltd vs Surkhev Ltd 1932 WLD 18
commented that “it is not by mere delay that a man loses his rights, even if he is aware of
the fact that another has infringed his rights. Delay or ‘standing by’ as it is called, may be
taken into consideration by the court in arriving at the conclusion as to whether or not the
man did or did not lose his right”
Ngcobo JA stated the following in NEHAWU vs University of Cape Town 2003 (2)
BCCR 154 (KH) - “By their very nature, labour disputes must be resolved expeditiously
and be brought to finality so that the parties can organize their affairs accordingly.
17. Patrick Ngwenya & Another v Swaziland Development and Savings Bank IC
536/08
TIME BARRED CLAIM
The Court dismissed a preliminary point which was that the respondent was time
barred from instituting a disciplinary inquiry against the Applicants because the
Bank had not done so within 30 days as provided in the disciplinary code and
procedure.
18. James Board v YKK Southern Africa and Another IC 386/07
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VENUE FOR DISCIPLINARY HEARING
The Court held that inasmuch as an employer has a right to decide on the venue
for holding a disciplinary inquiry, it must strike a balance between that right and
the employees right to a fair hearing
19. SMAWU vs SPINTEX CMAC SWMZ 560/09 (Manzini K. Arb)
NO WORK NO PAY
P8-10 “The position in law is clear. The workers did not abandon their duties
voluntarily and therefore the ‘no work no pay rule’ is not applicable herein. (see
Grogan Workplace law 9th Edition at p 61). In fact the same author at page 60
expressly states that it is the employer’s duty, under the contract of employment,
to receive the employee into service. It is stated therein that service is a
prerequisite for remuneration under the employment contract; and if the employer
refuses to accept an employee’s tender of service, it commits a serious breach of
the employment contract…the duty on the part of the employer to pay the worker,
and the commensurate right to remuneration on the part of the worker, does not
arise from actual performance of work but from the tendering of service ( see also
Johannesburg Municipality vs O’Sullivan 1923 AD 201)
20. Thembinkosi Sotsha Tsabedze vs UNITRANS CMAC MNZ 076/08 (Dlamini V
Arb)
DISHONESTY / ADMISSIBILITY OF FACTS AND EVIDENCE FROM A
DISCIPLINARY HEARING
P20 - LE Grange J in Ex Parte Bennet 1978 (2) SA 380 (W) at page 384 remarks
that dishonesty is normally used to describe an act where there has been some
intent to deceive or cheat.
P21- Willis J.A in Nedcor Bank Ltd v Frank and Others (2002) 7 BLLR 600
(LAC) at pg 603 opined that dishonesty involves the absence of integrity or
straight forwardness and in particular a willingness to steal, cheat, lie or act
ffraudulently.
The learned Author John Grogan, Dismissal 2004 pg 116 comments that
dishonesty denotes all forms of conduct involving deception on the part of the
employee. The onus is on the employer to prove that the employee acted with the
intention to deceive.
P23 – Whether the Applicant acted dishonestly, relates to his state of mind at the
time [of the dishonest act] See Nkosinathi Ndzimandze & Another v Ubombo
Sugar Limited IC 476/05
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In the Central Bank of Swaziland vs Memory Matiwane ICA 110/93 and
Swaziland United Bakeries vs Armstrong Dlamini ICA 117/91) the court held
that in arriving at a decision in an application for the determination of an
unresolved dispute, the Industrial Court must evaluate the facts and evidence
placed before it and to that end have regard to the facts and evidence available
during the disciplinary hearing and appeal hearing. This principle applies mutatis
mutandis in an arbitration.
P31 – It is not my prerogative to substitute a charge that would be relevant to the
facts that have been proved in order to reach the correct result. ( see Central
Bank of Swaziland vs Memory Matiwane ICA 110/93 and Swaziland United
Bakeries vs Armstrong Dlamini ICA 117/91)
21. Nkosinathi Ndzimandze & Another v Ubombo Sugar Limited IC 476/05
DISHONESTY
Whether the Applicant acted dishonestly, relates to his state of mind at the time [of
the dishonest act]
22. Ex Parte - Phindile Motsa v Siyabonga Wine and Malt CMAC SWMZ 138/08
(Dlamini T Arb)
DISMISSAL
P7 - It is trite law that in order for the dismissal of an employee to be deemed fair,
there must exist fair and valid reasons for terminating him/her. The requirements of
procedural and substantive fairness are that the employer must follow a fair procedure
in arriving at the decision of terminating an employee’s services. It therefore goes
without saying that disciplinary proceedings ought to be conducted in a neutral, fair
and impartial environment and manner for whatever misconduct [alleged against ] an
employee. The widely accepted elements of fair procedure include the following:
a. Investigation of the matter to establish the facts
b. Prior Notice to the employee of the precise charges that he or she is to face
at the hearing
c. Prior notice to the employee of his or her right to be represented, normally
by a co-worker or union official
d. An impartial presiding officer
e. Ample time and opportunity to be given to the employee to represent
his/her case in rebuttal of the charge(s) he or she is facing, which right
includes calling [and examining] his witnesses in support of his case.
f. The employee must be present at the hearing and everything must be done
to enable him to understand the proceedings
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g. The employee must be notified in writing of the employer’s decision
h. The employer must provide the employee with reasons why dismissal was
seen as the most appropriate sanction, and that there [must] be a right of
appeal.
Substantive fairness on the other hand, relates to the reason for the
dismissal….There must be a fair reason for the termination of an employee’s
services. The law here seeks to protect employees from arbitrary termination of
their services at the employer’s whim….Every employer is saddled with the
responsibility to ensure that when the employee is dismissed, such dismissal is in
line with the dictates of…labour laws and of course natural justice. Failure to
adhere to the same will render such dismissals…unfair.
23. Mefika Mthethwa vs Tums General Supplies CMAC SWZMZ 188/08 (Mhlanga
R. Arb)
DISMISSAL / DISCIPLINARY HEARING / ONUS TO JUSTIFY ABSENTEEISM
P13 - The respondent refers me to te case of Metal Allied Workers’ Union vs
Horizon Engineering PTY Ltd (1989) 10 ILJ 782, wherein it was held that the onus
rests on the employees to provide satisfactory explanation of their absence.
P20 – In Van JAARSVELD & Van Eck: Principles of Labour law (2nd Edition)
at page 198; it is stated that “in general, the holding of a disciplinary hearing is
regarded as a pre-dismissal procedure and will prevent the impression that the
employee was dismissed unfairly. Therefore an employee should be given a fair and
proper disciplinary hearing before being dismissed”
In Nkosinathi Ndzimandze & Another v. Ubombo Sugar Ltd, Industrial Court
476/2005, Dunseith JP (as he then was) stated with regard to procedural irregularity,
that even in situations where management is convinced of the guilt of employees, it is
still obliged to ensure that fair disciplinary process is observed”
24. STAWU/Veli Kunene vs UNITRANS CMAC SWMZ 481/09
INDIVIDUAL ACTION VIS COLLECTIVE ACTION
P19 – In the SACTWU & Others v Novel Spinners PTY Ltd 1999 8 LC, THE
LEARNED Zondo J, pronounced that it was inappropriate for an employer to take
into account warnings given for individual action when it considers an appropriate
penalty in respect of collective action.
I do not think that the SACTWU case is of any assistance to the Applicant, as it is
distinguishable.
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Firstly, the offence that was under review in the learned Zondo’s decision was work
stoppage and in this matter, it was threatening or intimidating a fellow worker.
Secondly, Zondo J had been appraised of the reasons that led the employer to issue
different sanctions, yet the employees were charged with a similar offence, but it is
not so in this matter.
Thirdly, the learned Judge in the SACTWU case was appraised of the charges of all
the employees who were involved in the matter, I have only been showed the
Applicant’s charge sheet.
25. Musa Carlton Nxumalo vs The Hub SPAR CMAC SWMZ 260 /09 (Dlamini V.
Arb)
SERVICE ON PERSON APPARENTLY IN CHARGE / DEFAULT JUDGMENT /
EVIDENCE OF UNAPPROVED MINUTES
P11- The learned Judge H.J. Erasmus et al in Superior Court Practice, Juta (2004) Pg
B1-23 in their commentary on the South African Rule 4 which is pari materia with
the High Court of Swaziland Rule 4, state that in the context of the rule “apparently”
means “seemingly” as opposed to “actually”. In my view in the context of Rule 8 of
CMAC Rules “appears” means “seemingly” but not “actually”.
P16- Once a Commissioner decides to refer the matter to arbitration, he becomes
functus officio, and he ceases to be a commissioner, but thereafter becomes an
Arbitrator for purposes of granting a default judgment.
P20 - Whilst evidence attributed to a witness by minutes of a disciplinary hearing
constitutes hearsay if not confirmed at a subsequent meeting, it is however of certain
circumstantial value. (See Zephania Ngwenya vs RSSC IC 262/01)
26. Simon Dlamini vs Black Mamba Security CMAC SWMZ 074/09 (Ngcamphalala
B. Arb)
INSUBORDINATION / INSOLENCE / DISHONESTY
P28 – Insubordination is a more serious offence than insolence because it presupposes a calculated breach by the employee of the duty to obey the employer’s
instructions. The code requires that defiance must be gross to justify dismissal.
This means that the insubordination must be serious, president and deliberate. (see
Chemical Worker’s Industrial Union & Another vs AECI Paints Natal (PTY) Ltd
1988 ILJ 1046 (IC).
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Further, the employer should adduce proof that the employee was in fact guilty of
defying an instruction. The gravity of the insubordination (or indeed whether the
refusal to obey the instruction amounts to insubordination, further the defiance
must be willful on the part of the employee and lastly, the reasonableness or
otherwise of the order that was defied. See Haywood vs Combo Track PTY Ltd
T/A Powerman (2004) 25 ICJ 2247 (BCA) and Building Construction and
Allied Workers Union vs E Rodgers & C Buchel CC & Another (1987) 8 ILJ
169 (IC) in Grogran Workplace law 9th Edition.
P34 – Dishonesty is a serious misconduct and destroys the employment
relationship, and has the effect of undermining the trust that the employer has in
the employee. In NEDCOR Bank Ltd vs Frank & Another (2002) 7 BLLR 600
(LAC) at page 60, Justice Willis JA commented that dishonesty entails a lack of
integrity, straightforwardness and a particular willingness to steal, cheat, lie and
act fraudulently. See Toyota SA Motors PTY Ltd vs Radebe & 3 Others (2000)
21 ILJ 340 (LAC)
P35 – The learned author, Grogan, in his book Dismissal at page 116, remarks
that dishonesty is a generic term embracing all forms of conduct involving
deception on the part of the person. He comments further that an employer has to
establish that an employee, acted with intent to deceive. The learned Judge in
Nkosinathi Ndzimandze and Another vs Ubombo Sugar Case No 476/05 at
page 16 shares the same sentiments.
27. Phillip Mkhwanazi vs Umbuluzi Game Reserve CMAC STK 080/60 ( Dlamini V
Arb)
DISHONESTY / CONTRACTUAL DEDUCTIONS / TAX DIRECTIVE
P47 – In NEDCOR Bank Ltd vs Frank & Another (2002) 7 BLLR 600 (LAC)
at page 60, Justice Willis JA commented that dishonesty entails a lack of
integrity, straightforwardness and a particular willingness to steal, cheat, lie and
act fraudulently. See Toyota SA Motors PTY Ltd vs Radebe & 3 Others (2000)
21 ILJ 340 (LAC)
P47 - The learned Author John Grogan, Dismissal 2004 pg 116 comments that
dishonesty denotes all forms of conduct involving deception on the part of the
employee. He comments further that the employer has to establish that the
employee acted with the intent to deceive. See Nkosinathi Ndzimandze &
Another v Ubombo Sugar Limited IC 476/05
P48 – “…[the employee] by his deception broke the trust bestowed upon him by
the Respondent, I further hold that such dishonesty was calculated and therefore
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cut at the fabric of the employment contract. The Respondent cannot be expected
to employ a person who deliberately disregards rules and procedures and lies with
impunity. The length of service of the applicant and his previous clean record
cannot in my view override the gravity of the offences he committed. See Cater
vs Value Truck Rental 1 BLLR 88 (Se); Council for Scientific and Industrial
Research vs Fijen 1996 (2) SA 1 (A).
P50 – Notwithstanding the principle that an agreement cannot be permitted to
stultify legislation that otherwise prohibits that transaction. In my view =, what
respondent did, with full knowledge of the law, voluntarily and without duress is
an exception to the principle. Respondent did not do so negligently, it had full
knowledge See Bank Van Africa BPR vs Ersteen 1964 (1) SA 74 (N) Ed Van
der Merwe et al: Contract - General Principles pp29-33. In my view,
Respondent took a conscious decision to award Applicant a severance package in
spite of a statutory provision enacted for its interest, it cannot now raise estoppel
on the basis that he was not entitled to it in the first place. See Levy and Others
vs Zalrut Investments (PTY) Ltd 1986 (4) SA 749 (w).
In now turn to consider if the deductions were lawful. Regarding a tax ]directive],
it has been held by the High Court of Swaziland and the Industrial Court that
once a person ceases to be an employee because of his dismissal, the former
employer is not obliged or entitled to deduct any amounts from any payment
made to the ex employee. See Fraser Alexander (SWD) vs Jabulani Shongwe
and Another IC 199/2005; Andrew Mkhonta and 6 Others, Abel Sibandze
and 4 Others vs Swaziland Posts and Telecommunications IC 210/05; Lewis
Stores PYT Ltd vs Gugulethu Nsibandze and Others IC 39/04.
28. Peter Simon Khathwane vs LM Stores CMAC SIM 012/08 ( Mhlanga R Arb)
ADMISSIBILITY OF EVIDENCE FROM CONCILIATION
P23 – The Respondent submits that the Applicant was told to go back to work on
two (2) occasions; it was during the pre-conciliation session and conciliation
process all at CMAC. It is alleged that on both occasions the Applicant refused to
be reinstated or go back to work. It is argued on behalf of the respondent
that…the Applicant was invited…to discuss the dispute or issue of the alleged
dismissal, but Applicant refused…The Applicant’s case is hereby dismissed.”
29. Oscar Mamba vs Swaziland Development and Savings Bank IC 81/96 (Parker J)
PROCEDURAL FAIRNESS
“It is a conerstorne of labour law that an employee be given an opportunity to
state his case”
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30. Owen Dlamini vs OK Bazaars T/A Shoprite Checkers CMAC SWMZ 270/08
(Manzini K. Arb)
PROCEDURAL FAIRNESS
P27 - In Oscar Mamba vs Swaziland Development and Savings Bank IC
81/96 (Parker J) it was held by Judge Collins Parker that it is a cornerstone of
labour law that an employee be given an opportunity to state his case. This case
then went on to state the minimum standards that are expected of a “fair hearing”.
The learned Judge pointed out that the employee must be informed of the charge
(s) he is to face. This requirement flows from the need for adequate preparation,
since an accused employee cannot prepare a defense if they are ignorant of the
charges they are required to answer”
31. Percy Lokotfwako vs Swaziland Television Broadcasting Corporation
Swazi TV IC 151/07
T/A
COMMON LAW EMPLOYEE / CONTRACT OF SERVICE / PAY /
REMUNERATION
The definition of an employee in terms of the Industrial Relations Act 2000 gives
rise to a two step enquiry to determine whether a litigant is an employee. The fist
question is whether the person works for pay or remuneration under a contract of
service. In other words is the person a common law employee.
If the first enquiry concludes that the relationship is not a contract of service, the
Court makes a second enquiry, namely whether the person works for pay or
remuneration under an arrangement other than a contract of service involving
control by, or sustained dependence for work, upon another person”
32. Nhlanhla Maseko vs Hi Tech Security CMAC SWMZ 515/08 (Ngcamphalala B.
Arb)
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COMMON LAW EMPLOYEE / CONTRACT OF SERVICE / PAY /
REMUNERATION
Citing Percy Lokotfwako vs Swaziland Television Broadcasting Corporation
T/A Swazi TV IC 151/07
From the evidence adduced by the Applicant, I have failed to conclude that the
Applicant and the Respondent entered into any form of contract of employment.
The Applicant has failed to state whether the contract entered into was verbal, or
done in writing, if it was done in writing to provide documentary proof that
indeed a contract of employment was entered into between the parties. If verban,
he failed to state where, when and who represented the Respondent whenhe was
employed….He only received the agreed amount once…he would get the odd
E200 here and there but did not state under what circumstances. Based on the
evidence submitted by the Applicant I am not convinced on a balance of
probabilities that the Applicant was an employee of the Respondent.
33. Hezekiel Dlamini & Others vs REEPS Pty Ltd CMAC SWMZ 249/08
(Ngcamphalala B. Arb)
RETRENCHMENT
9.1 - John Grogan in his book Dismissal loosely translated retrenchment as the
termination of employment on the ground of superfluity of workers due to
economic downturn.
9.2 – It has also been referred to as dismissal based on Operational Requirements.
Therefore there must be an objective link between the dismissal/ retirement and
some economic technological or similar need of the employer. Retrenchment is
therefore a dismissal …for Operational Requirements.
9.14 - The test for substantive fairness in dismissal for operational requirements
as stated in John Grogan, Workplace law, 9th edition, 2007, Juta, Page 226 is
“whether the dismissal was operationally rational”
34. Thabo Simelane vs JD Group Swaziland IC 166/02 (Nkonyane J)
CONSULTATION / RETRENCHMENT
“The Court is satisfied that the Respondent did serve the notice in order to comply
with the requirements of section 40(2) of the Employment Act. That section
however is couched in general terms. There are issues that will require
consultation with the individual employee, which if not done, the employee will
be prejudiced”
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35. Mary Tsabedze vs Shoprite Checkers CMAC MNZ 619/07 (Dlamini T Arb)
ARBITRATION / APPROPRIATE SANCTION FOR THEFT
P14 – Perhaps once needs to point out that an arbitration under the auspices of
CMAC is an hearing de novo and that the decision of the arbitrator is not reached
with reference to the evidential, material that was before the employer at the time
of the inquiry, but evidential material placed before the arbitrator during the
arbitration hearing. As such, in arriving at my decision, I will use evidential
material presented to me during the arbitration hearing.
P16 – A question which however lingers in my mind is that of whether the
decision to dismiss the Applicant was an appropriate sanction herein. Perhaps, as
a starting point in this regard, one can borrow from the words of Trip AJ in
Standard Bank SA Limited vs CCMA and others [1998] 6 BLLR 622 at
paragraphs 38-41 where he states:
“It was one of the fundamentals of the employment relationship that the
emplpoyer should be able to place trust in the employee…. A breach of this trust
in the form of conduct involving dishonesty is one that goes to the heart of the
employment relationship and is destructive of it”
That decision was followed by Metcash Trading Limited T/A Metro Cash and
Carry and Another v Fobb and Another (1998) 19 ILJ 1516 (LAC) at
paragraph 16-17 where the learned judge [Mlambo J] found that in relation to the
consumption of a single 250 ML bottle of orange juice “theft is theft and does not
become less because of the size of the article stolen or misappropriated”
The principle on which these decisions are based is encapsulated in a dictum of
Conradie JA in De Beers Consolidated Mines Ltd vs CCMA and Others
(2000) 21 ILJ 1051 (LAC) at paragraph 22 where he states that:
“A dismissal is not an expression of moral outrage; much less is it an act of
vengeance. It is, and should be, a sensible operational response to risk
management in the particular enterprise. That is why supermarket shelf packers
who steal (or misappropriate) small items are routinely dismissed. Their dismissal
has little to do with society’s moral opprobrium of a minor theft; it has everything
to do with the operational requirements of the employer’s enterprise”
36. Khanyakwezwe Dlamini vs Sinkhwa SeMaswati CMAC MNZ 873/06 Dlamini
V. Arb)
ARBITRATION / REPRESENTATION
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“An Arbitrator has to make his own assessment of the facts and evidence adduced
before him during an Arbitration. CENTRAL BANK v MEMORY
MATIWANE 110 of 1993 and SUB v ARMSTRONG DLAMINI 117/94
Dishonesty is a very serious misconduct and destroys the employment contract.
The length of service of the applicant and his previous clean record cannot in my
view override the gravity of the offences he committed. Although he was not in a
position of trust, the respondent could not be expected to continue to employ a
worker who steals. See 476/2005 Nkosinathi Ndzimandze & Another v.
Ubombo Sugar Ltd, Industrial Court (Dunseith JP), Cater vs Value Truck
Rental 1 BLLR 88 (Se); Council for Scientific and Industrial Research vs
Fijen 1996 (2) SA 1 (A).
It is my opinion that evidence dehors what is recorded in the minutes to prove that
what did happen during the disciplinary hearing is unreliable, especially evidence
which is given by a witness other than the Chairman.
The Industrial Court has held that an employee’s right to representation is one of
the six minimum standards that should be met before a disciplinary hearing can be
said to have been fair. Christopher H. Dlamini vs Inter Africa Suppliers
(SWD) Ltd IC 55/1997, Oscar Mamba vs Swaziland Development and
Savings Bank IC 81/96 (Parker J)
37. Dumsani Dlamini vs Swazi Fountain PTY Ltd T/A Eteteni Filling Station
CMAC MNZ 664/07 (Dlamini V. Arb)
TIME BARRED
P41 - Applicant has argued that [Respondent continued with the hearing in spite
of the fact that 30 days had lapsed since the Applicant was suspended without
pay.
There is absolutely no merit in the [point] of law raised by the Applicant….
38. My conclusion is supported by NKOSINGPHILE SIMELANE V SPECTRUM
PTY LTD T/A MASTER HARDWARE IC 681/2006; Shobane Dube and Others
v, Imvunulo Retail Group PTY Ltd T/A Sneakers IC 579/0; Mthunzi Sibandze v
Sinkhwa SEmaSwati T/A Mister Bread Bakery IC 45/07
39. Shobane Dube and Others v, Imvunulo Retail Group PTY Ltd T/A Sneakers IC
579/0;
40. Mthunzi Sibandze v Sinkhwa SemaSwati T/A Mister Bread Bakery IC 45/07
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41. SWADE vs Doctor Lukhele 1504 (HC) (MCB MAPHALALA J)
APPEAL / REVIEW / MISTAKE IN LAW / TACIT RENEWAL OF CONTRACT
P33 - In review proceedings, the court looks at the correctness of the procedure
adopted in arriving at the decision; the court is concerned with the decision-making
process – whether in arriving at the decision, the court applied its mind to all the
relevant issues in accordance with the statute, the principles of natural justice as well
as the Constitution.
It is common Cause that the court a quo made a finding of law that the contract of
employment of the First Respondent was tacitly renewed. Tebutt JA, in the case of
Takhona Dlamini v The President of the Inductrial Court of Swaziland and
Another AC 23/97 at Pges 15-16 (Unreported) who delivered the majority decision
after analyzing sections 11 (1), 11 (15) and 19 of the Industrial Relations Act as well
as South African Case law stated the following:
“It is a matter of construction of the statute conferring the power of decision as to the
reviewability of such decision where the tribunal concerned has committed a material
error of law. In the present instance, the Legislature, although it created a specialist
Court in Section 11(50 of the Act, specifically retained in the High Court, the power
to review decisions of the Industrial Court on Common Law review grounds. It
therefore, di not give exclusive jurisdiction to the Industrial Court of Appeal on errors
of law.
Tebbutt JA also referred to the decision of the Local Road Transport Board and
Another vs Durban City Council and Another 1965 (1) SA 568 AD in which
Holmes JA, delivering his Judgment of the court, cited with approval the decision in
Goldfields Investments Ltd and Another vs City Council of Johannesburg and
Another 1938 TPD 551, where it was held as follows:
“A mistake of law per se is not an irregularity, but its consequences amount to a gross
irregularity where a judicial officer although perfectly well intentioned and bona fide
does not direct his mind to the issue before him and so prevents the aggrieved party
from having his case fully and fairly determined”.
P35 - His Lordship Tebbutt JA, also cited with approval the case of Johanesburg
Stock Exchange v Witwatersrand Nogel Ltd 198 (3) 132 at 152 A-D where Corbett
JA stated that the common law grounds for review as follows:
“Broadly, in order to establish review grounds, it must be shown that the President
failed to apply his mind to the relevant issues in accordance with the behest of the
statute and the tenets of natural justice…. Such failure may be shown by proof, inter
alia, that the decision was arrived at arbitrarily or capriciously or mala fide or as a
result of unwarranted adherence to a fixed principle or in order to further un ulterior
or improper purpose; or that the President misconceived the nature of the discretion
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conferred upon him and took into account irrelevant considerations or ignored
relevant ones or that the decision of the President was so grossly unreasonable as to
warrant the inference that he had failed to apply his mind in the matter in the manner
afore-stated”
P41 – The fact that the First Respondent has not been paid terminal benefits is not
evidence of tacit renewal of the contract; it merely shows at that stage he had lodged
an appeal and awaiting the outcome.
42. Eddies Thring v Prime Trucking & Logistics CMAC SMWZ 518/08 (Khumalo
K Arb)
MINUMUM REQUREMENTS FOR DISCIPLINARY HEARING / APPEAL /
PRINCIPLES OF NATURAL JUSTICE
P10 – John Grogan, Workplace law, 9th Edition, page 204, sub title 5.2.12 “Where and appeal is provided for in a disciplinary code, it must be afforded
unless the employee waives his or her right of Appeal.”
P15 – In the matter between SFTU vs The Minister of Enterprise and
Employment ICA 11/97 …the learned Judges of Appeal quoted Baxter, p. 540
when Lord Wright stated the policy of the Courts in 1942:
“If the principles of natural justice are violated in respect of any decision, it is,
indeed, immaterial whether the same decision would have been arrived at in the
absence of the departure from the essential principles of justice. The decision
must be declared to be no decision.”
P17 – John Grogan (2005) Workplace law (8th Edition) p. 157 states that the
substantive fairness of a dismissal must meet the following criteria: “Whether or
not: 1. The employee flouted or contravened a rule or standard regulating conduct
in, or relevant to the workplace; 2. The employee was aware, or could have
reasonably been expected to have been aware of the rule or standard; 3. The rule
or standard has been consistently applied by the employer; 4. The Dismissal was
an appropriate sanction for the contravention of the rule or standard”
In making a determination on the reasonableness of the dismissal of the
Applicant, I make reference to British Leyland (UK) Ltd v Swift, quoted in Le
Roux and Van Niekerk p119: “ The correct test is, was it reasonable for the
employer to dismiss him? If no reasonable employer would have dismissed him,
then the dismissal was unfair. But if a reasonable employer might reasonably have
dismissed him, then the dismissal was fair.”
43. SFTU vs The Minister of Enterprise and Employment ICA 11/97
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44. Musa Dlamini vs Time Electrical CMAC SWMZ 445/09 (Dlamini V. Arb)
CONVICTION
P16 – The Industrial Court of Swaziland has pronounced that even in cases where
the employer is convicted of the guilt of an employee, a disciplinary inquiry
cannot be dispersed with. See Alpheus Thobela Dlamini vs Dalcrue
Agriculture Holdings IC 123/05; Maria Vilakati and Another v Ngwenya
Glass PTY Ltd IC 139/04
P20 – In Dinabantu Ndwandwe vs Vuka Sidwashini Farmers Association IC
520/06, Dunseith JP remarked that: “The definition of reinstatement as contained
in the Industrial Relations Act 2000 (as amended) must be seen in the context in
which the term is used in the body of the Act. This context is that of unfair
dismissal, for which the remedy of reinstatement is provided. The Industrial Court
is empowered to order specific performance of a contract by way of
reinstatement. The object of such an order is to attempt to restore the employee to
the same position in which he would have been, if he had not been unfairly
dismissed”
P21- The Oxford School Thesaurus (2nd Edition) enumerates the synonyms of
reinstate as – “restore, re-establish, reinstall, re-appoint, take back, recall.” See
SEB v Collie Dlamini IC 2/07
P22 – It has been held by the South African Industrial Courts that where the offer
for reinstatement is conditional and defective, that offer is inadequate and
insufficient and as such the employee is entitled to reject the offer and proceed to
court. See Usher v Linar (PTY) Ltd (1992) 13 ILJ 243 (IC).
P23 – In United People’s Union of South Africa on behalf of Phiri v Meshrite
PTY Ltd (2006) 27 ILJ 431 (BCA), the Court held that an offer to reinstate an
employee on the terms and conditions upon which he was employed obliterates
the earlier dismissal. However [where] the terms and conditions are not identical,
that employee established a prima facie case of dismissal.
P26 - In Feast vs Edmar Engineering cc (2006) 27 ILJ 222 (BCA) it was held
that where an employee’s refusal to an offer of reinstatement is unreasonable, it is
not appropriate to award compensation.
The Labour Appeal Court of South Africa in Mkhonto vs Ford NO and Others
(2000) 21 ILJ 1312 (LAC) opined that the guiding principle whether to
compensate an employee who has rejected an offer is fairness.
45. SEB v Collie Dlamini IC 2/07
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REINSTATEMENT
P13-14 “ However, we do not find anything in the Republication Press case
judgment which supports the Respondent’s contention that where the Court orders
reinstatement off a worker, as a matter of law and logic, such reinstatement is or
must be with retrospective effect from the date of the dismissal. Such
interpretation would do violence to the clear words used in Section 16 (10 (a) of
the IRA. The section empowers the court to order an employee to reinstate the
employee from any date not earlier than the date of dismissal. It could even
conceivably be in the future, that is to say, after judgment. The court has a
discretion on the issue.”
46. Dinabantu Ndwandwe vs Vuka Sidwashini Farmers Association IC 520/06,
(Dunseith JP)
REINSTATEMENT
“The definition of reinstatement as contained in the Industrial Relations Act 2000
(as amended) must be seen in the context in which the term is used in the body of
the Act. This context is that of unfair dismissal, for which the remedy of
reinstatement is provided. The Industrial Court is empowered to order specific
performance of a contract by way of reinstatement. The object of such an order is
to attempt to restore the employee to the same position in which he would have
been, if he had not been unfairly dismissed”
47. Alpheus Thobela Dlamini vs Dalcrue Agriculture Holdings IC 123/05;
CONVICTION
48. Maria Vilakati and Another v Ngwenya Glass PTY Ltd IC 139/04
CONVICTION
49. Zurigo Investments vs Vusi Mabuza CMAC STK 025/09 (V. Dlamini Arb)
RESCISSION
If a party that seeks to rescind a judgment that has been made in his/her absence
in terms of section 81(10) should show and demonstrate good cause why the
rescission should be granted, the same standard should as well apply to a party
that seeks to rescind an award in terms of section 17(6) (a). Any departure from
the standard yardstick provided in Section 81(10) of the Act when adjudicating
over rescission applications brought in terms of Section 17 (6) would not find any
legal support and would therefore amount to a material misdirection. Good Cause
or Sufficient Cause is the criterion for rescission applications under the Industrial
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Relations Act, 2000 (as amended) in the absence of any provision to the contrary.
In any event, an award made in the absence of an affected party is still default
judgment and both have the same legal weight.
The notion of Good Cause or Sufficient Cause was clarified in the decided case
of Harris vs ABSA Ltd t/a Vilkskas 2006 (4) SA (at 529) as follows.
“Whether or not sufficient cause [or good cause] has been shown to exist
depending on whether:
a. The applicant has presented a reasonable and acceptable explanation for his or
her default.
b. The Applicant has shown the existence of a bona fide defence, that is, one that
has some prospect or probability of success.
c. The test is whether Good Cause or Sufficient Cause is has been shown by
the party seeking relief is a dual nature, it is conjunctive and not disjunctive.
An acceptable explanation of default must co-exist with the evidence of
reasonable prospects of success on the merits. It is not sufficient if only one of
the two requirements is met. For obvious reasons, a party not showing
prospects of success on the merits will fail in an application for rescission of a
default judgment against him, no matter how reasonable and convincing the
explanation for the default. And ordered judicial process would be negated if
on the other hand, a party who could offer no explanation of his default than
his disdain for the Rules was nevertheless permitted to have a judgment
against him rescinded on the ground that he had reasonable prospects of
success on the merits”.
d. The Commission has adopted and used this criterion as expounded by the
decided cases in a number of rescission applications. See:
e. Creative Car Sound and Another vs Auto Mobile Radio Dealers
Association (PTY) Ltd – 2007 (4) SA (at 555), the Court cited with approval
the decided case of Collyn vs Tiger Food Industries Ltd t/a Meadow Feed
Mills (Cape) 2002 (6) SA 1 (SCA. “with the underlying approach, the
Courts generally expect an applicant to show good cause (a) by giving a
reasonable explanation of his default; by showing that his application is made
bona fide; and by showing that he has a bona fide defense to the Plaintiffs
Claim which Prima Facie has some prospects of success” The Court reasoned
that “In essence, the Applicants are required to demonstrate prospects of
success on the merits. This in my view means that the grounds of the Defense
must be set forth with sufficient particularity and detail to enable the court to
conclude that there is a bona fide case and that the application is not being
brought for the purposes of delay”
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f.
Responding to the aforegoing enunciation, the Commission’s Executive
Director in Africa Cash and Carry vs Makhosazana October – CMAC
Case No. 224/09 commented as follows:
g. “Inasmuch as the above principle was expounded in a different factual context
to this application, the above principle of law has equal relevance and
application to the rescission application under the Industrial Relations
Act…Bare and unsubstantiated allegations as regards the Applicant’s case
would not be sufficient in discharging this onus.”(Page 6). See also Sifiso
Khumalo vs Inyatsi Construction – CMAC Case No NHO 154/08 (Page
8).
h. Simeon Mlangeni t/a Thembalemalangeni Transport vs Samson Zitha –
CMAC Case SWMZ 212/08 P3 - The Executive Director observed as
follows: “Therefore service otherwise other than in accordance with CMAC
Rules is utterly defective and renders the granting of a default judgment unprocedural and illegal.”
i. After enumerating as afore-going, the meaning and/or dutythat is upon an
applicant in a rescission application, the Executive Director of the
Commission in Sifiso Dlamini vs L.C. Von Wissel PTY Ltd - CMAC Case
No SIM 001/08 (at page 10) went on to state as follows: “ Although the
Respondent has not filed its papers in the opposition to the application, he
however has given evidence under oath setting out the basis of his claimmfor
unfair dismissal. Therefore the applicant bears the onus of establishing a bona
fide defense by, inter alia, substantively responding to all those allegations
that have been made by the respondent at paragraph 3 of the default judgment
and set out allegations , if need be, that ground its defense.”
j. In Sikhumbuzo E. Mkoko vs VIP Protection Services – CMAC Case No.
SWZ 371/08, the following extract was made:
“Since the Applicant is burdened with the onus of proving that the Respondent’s
services were fairly terminated, the Applicant is required to set out
comprehensively in its founding affidavit allegations of fact that establish on a
balance of probabilities, that the services of the Respondent were terminated in
accordance with Section 42 of the Employment Act. In this instance, where the
Respondent has not filed any papers, the applicant is required to discharge the
onus by admitting or denying, confessing and avoiding allegations of fact that
have been stated under oath as contained in the default judgement”
50. Africa Cash and Carry vs Makhosazana October – CMAC Case No. 224/09
RESCISSION
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51. Simeon Mlangeni t/a Thembalemalangeni Transport vs Samson Zitha – CMAC
Case SWMZ 212/08
RESCISSION
52. Makhosini Mbonane vs Prime Trucking and Logistics CMAC SWMZ 99/09
(Mhlanga R. Arb)
DISHONESTY
P19 – The Respondent…has made reference to the work of John Grogan titled
Dismissal Discrimination and Unfair Labour Practices (200) at page 246-247,
wherein it is stated that: “dishonesty is a generic term embracing all forms of cionduct
involving deception on the part of the employees’.The author further states that , “In
employment law, a premium is placed on honesty because conduct involving moral
turpitude by employees damages the trust relationship on which the contractis
founded. Dishonesty can consist of any act or omission which entails deceit. This
may include withholding information from the employer or making false statement or
misrepresentation with intention of deceiving the employer”.
P20 - The Respondent also refers to the case of Nedcor Bank Ltd vs Frank and
Others (2002) 23 ILJ 1243 (LAC) in which the Labour Court of Appeal held that,
Dishonesty entails a lack of integrity or straightforwardness and in particular a
willingness to steal, cheat, lie or act fraudulently”.
P27 – In the case of Nkosinathi Ndzimandze and Another v Ubombo Sugar
Limited IC Case No 476/05 at Page 21, the Court stated that “calculated dishonesty
cuts the root of the employment Contract and it destroys the employment
relationship”
53. Lucky Mshabi vs Umhlanga Marketing CMAC SWMZ 186/09 (Ngcamphalala
B. Arb)
CORRECTIVE RE-HEARING, PRIVATE ARBITRATION
P32 - John Grogan in his book Dismissal Discrimination and Unfair Labour
Practices, 2nd Edition, Juta, 2007 states that employees are duty bound to uphold
their employer’s good name. Further, that conduct that tends to bring the name of the
employer into disrepute may therefore justify disciplinary action, even if, in rare
instances, such conduct cannot be classified as another recognized offence. Offensive
behavior to a client falls under this heading. See Concorde Plastics PTY Ltd v
NUMSA & Others (1998) 2 BLLR (LAC).
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P33 - John Grogan states that the general rule held by Courts is that a hearing held
after a decision is made to dismiss an employee is axiomatically unfair.
A corollary to this is that employers may not generally correct a procedurally unfair
dismissal by holding a proper hearing (see Nasionale Parkeraad vs Terbanche
(1999) 20 ILJ 1520 (LAC)
In the case of Semenya & Others vs CCMA & Others (2006) 27 ILJ (LAC), on
appeal, it was stated that an employer can cure the absence of a hearing by affording
what the Court likened to Private Arbitration, where the decision of an outside third
party binds the employer
P36 - Grogan in his book Workplace law, 9th Edition, 2007 agt page 122, states
that “a dismissal must not only be for a fair reason, but also that it must be effected in
accordance with fair procedure”
“…failing to conduct a proper disciplinary hearing renders the dismissal procedurally
unfair” (See Joseph Sangweni vs Swaziland Breweries Industrial court Case
52/2003.
54. Joseph Sangweni vs Swaziland Breweries Industrial court Case 52/2003
55. Nonhlanhla Ngwenya vs Pimentas KFC (Pty) Ltd CMAC MNZ 706/07 (Dlamini
T. Arb)
DISHONESTY
P12 - Van Niekerk in his work Unfair Dismissal 2004 Edition states at page 43
that in recent Labour Appeal Court (South African) decisions, the court has
constantly emphasized the necessity of a relationship of mutual trust and confidence
in the employment relationship and has upheld dismissals for dishonesty even when
relatively small amounts have been involved. There is also the unreported Industrial
Court of Appeal Judgment of RSSC vs Paul Mavundla Case No 5/2006 where at
paragraph 24, it is opined as follows: “Routinely, lowly paid workers such as shelf
packers, are dismissed, and fairly so, when items of small value are stolen. Value of
stolen items cannot be determinative just as the period of service of the offending
employee should not be”.
P13 – Tip AJ in Standad Bank SA Limited v CCMA and Others [1998] 6 BLLR
622 at paragraph 38-41 where he states: “It was one of the fundamentals of the
employment relationship that the employer should be able to place trust in the
employee…a breach of this trust in the form of conduct involving dishonesty is one
that goes to the heart of the employment relationship and is destructive of it”
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Metcash Trading Limited T/A Metro Cash and Carry and Another v Fobb and
Another (1998) 19 ILJ 1516 (LAC) at paragraph 16-17 where the learned judge
[Mlambo J] found that in relation to the consumption of a single 250 ML bottle of
orange juice “theft is theft and does not become less because of the size of the article
stolen or misappropriated”
The principle on which these decisions are based is encapsulated in a dictum of
Conradie JA in De Beers Consolidated Mines Ltd vs CCMA and Others (2000)
21 ILJ 1051 (LAC) at paragraph 22 where he states that:
“A dismissal is not an expression of moral outrage; much less is it an act of
vengeance. It is, and should be, a sensible operational response to risk
management in the particular enterprise. That is why supermarket shelf packers
who steal (or misappropriate) small items are routinely dismissed. Their dismissal
has little to do with society’s moral opprobrium of a minor theft; it has everything
to do with the operational requirements of the employer’s enterprise”
56. Bongani Yende v Swazi Fountain PTY Ltd CMAC MNZ 665/07 Dlaimini T.
Arb)
DISHONESTY
Nonhlanhla Ngwenya vs Pimentas KFC (Pty) Ltd CMAC MNZ 706/07 (Dlamini
T. Arb)
Mary Tsabedze vs Shoprite Checkers CMAC MNZ 619/07 (Dlamini T Arb)
57. Xolile Matsenjwa vs Manser Import and Export PTY Ltd T/A Manzini Waste
Centre (Manzini K. Arb)
BALANCE OF PROBABILITIES / DISCIPLINARY HEARING
P21 - The standard of proof in civil cases is that of proof on a balance of probabilities.
(see Schwikkard & Van der Merwe, Principles of Evidence 2nd Edition , page
544)
The position at law is that in order for an employee to be dismissed in a procedurally
fair manner, that worker has to be subjected to disciplinary hearing (See J. Grogan,
Workplace law: 9th edition, page 189)
P22 – The principle, however, is that the employer may be entitled to proceed with
the hearing in the absence of the employee if the employee refuses to attend the
hearing or participate in the hearing without good cause. (See J Grogan’s
Workplace law 4th Edition, at page 149)
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Whilst it is true that justice dictates that the hearing should be held as soon as possible
after the incidents…the law does recognize that an employee needs time to prepare
for the said hearing (See Oscar Mamba vs Swaziland Development and Savings
Bank Industrial Court Case No 81/96)
58. PAULOS DLAMINI V LONG DISTANCE TRANSPORT (SWD)SWMZ 328/08 Banele Ngcamphalala arb
BALANCE OF PROBABILITIES
Selamolele vs Makhado 1988 (2) SA 372 page 375 D-E
“What is being weighed in the balance is not qualities of evidence but the
probabilities arising from the evidence and all the circumstances of the case.”
In a dismissal case the onus is borne by the Respondent to prove that in
terminating the services of the Applicant it has satisfied the requirements of
Section 42 (2) (2)(a) and (b) provides that:The service of the employee shall not be considered as having been fairly
terminated unless the employer proves:
a.) That the reason for the termination was one permitted by section 36; and
b.) That taking into account all the case, it was reasonable to terminate the
services of the employee.
I have to determine on the balance of probabilities the extent to which the conduct
of the applicant amounted to a dishonest act of theft. John Crogan, Workplace
law 9th edition, Juta page 157-8, states that the substantive fairness of the
dismissal is assessed according to the following criteria;
a.) Whether or not the employee contravened a rule or
b.) Whether or not the employee contravened a rule or;
DELISILE KWANYANE V MILADYS SWAZILAND SWMZ 233/09 – Robert
S. Mhlanga
Pg 19 In the Milady’s case where the Applicant’s dismissal was regarded unfair in
that Applicant was by the Respondent induced to make the statement in that he
allegedly promised her that if she were to admit in writing that she committed the
offence of dishonest act in question, the Respondent would impose a lenient
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penalty on her namely, that she would not be dismissed, but that she might be
given a warning. In this regard reference was made to Hoffman and Zeffert’s
work, “The South African Law of Evidence”, Fourth Edition at page 215,
wherein these authors discuss the subject of confession
Page 20 It is submitted that the Applicant was denied her right to appeal against
the initial verdict, because her appeal was never entertained by the Respondent. In
other words the Applicant was never called for an appeal hearing, despite the fact
that she lodged her appeal against the initial verdict, hence her dismissal was
procedurally unfair. In this regard reference was made to the case of Nkosinathi
Ndzimandze and Another V Ubombo Sugar Limited IC Case No. 476/05.
Page 22 It is argued that from the legal perspective, the Respondent was put at
the risk of contravening the law regulating authorized deductions to be made from
an individual employee’s wages, following the circumvention of the credit limit
by the Applicant (the underlined is my emphasis)
Overall, it is the Respondents submissions that the Applicant’s dismissal was both
procedurally and substantively fair. It is the Respondents argument that in light of
the evidence adduced by it in this case, it has been able to prove on a balance of
probabilities that the allegations against the Applicant are true. Reference was
made to an Arbitration Award, which was issued by the CCMA Commissioner in
the case of Inelia Koeberg (Applicant) v Mr. Price (Respondent ) case No.
ECPE 157/05
Page 29 In the case of Nkosinathi Ndzimandze and Another V Ubombo Sugar
Limited IC No. 476/05 at page 21 the Court stated that; “Calculated dishonesty
cuts at the root of the Employment contract and destroys the employment
relationship”. In light of the foregoing, it is my finding that the termination of the
Applicant’s services was reasonable in all the circumstances of the case.
Page 31 In the case of Nkosinathi Ndzimandze and Another v Ubombo Sugar
Limited (Supra) at page 30 the Court stated that: “it is well established in our
labour law that an important ingredient of a fair disciplinary hearing is the right
to appeal to a higher level of management”
In the same case of Nkosinathi Ndzimandze’ and Another v Ubombo Sugar
Limited at page 30 the Court quoted the passage from Edwin Cameron’s
article; “The right to a hearing before dismissal - part 1 (1986) ILJ 183.
Which is as follows: “A right to an appeal is an important safeguard, giving the
affected employee a chance of persuading a tier of Authority that the adverse
decision was wrong or that it should otherwise be reconsidered. In the end, the
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final decision will have been the subject of more careful scrutinity prolonged
debate and sober reflection”
59. Jean –Marie Niyibigira v Living Waters School – SWMZ 13/08 Thulani Dlamini
/ arb
ABSOLUTION FROM THE INSTANCE
Pg 3 The Conciliation Mediation and Arbitration Commission, being an
administrative and quasi judicial organ, does not have the powers and as such is
incompetent to grant absolution from the instance. This has as such is incompetent to
grant absolution from the instance. This has been pronounced in a number of
decisions by the judges of the Industrial Court of South Africa and in arbitration
awards of the CCMA, see for instance the case of chemical Workers Industrial
Union obo Mthombeni v Amcos Cosmetics 1999 20 ILJ 2739 .
Pg 4 Further, to the aforementioned the law is that absolution from the instance can
only be granted if the onus rests upon the Plaintiff. If the onus rests upon the
Defendant there can never be an order for absolution from the instance at any stage of
the proceedings. See in this regard Arter v Burt 1922 AD 303). In this case the
Applicant alleges that the Respondent unlawfully terminated his services. He has
proved that he was an employee enjoying protection of the Employment Act. The
onus is therefore on the employer to prove that he has not unfairly terminated. And
clearly there is no case where one can grant absolution from instance.
60. Gcina Lukhele V St Joseph’s Mission MNZ 552/07 - Robert Mhlanga /arb
CONTRACT OF EMPLOYMENT
Pg 14. The Applicant denies the Respondent’s allegation to the effect that, he was not
an employee to whom Section 35 of the Employment Act 1980 applied, by virtue of
the fact that he (Applicant) was a member of the Respondents family. The Applicant
argues that the Relationship between him and the Respondent is an employeremployee relationship, which emanates from the aforesaid contract of employment
herein. In this regard, reference is made to the case of Meshack Zwane v The
Alliance Church in Swaziland (IC Case No.41/99 at page 4 wherein the following
essentials elements of a contract of employment were outlined namely; an agreement,
in terms of which services are rendered, under the authority of the employer for
remuneration.
Pg 16 Respondents submission that the Relationship between the parties was not a
contractual relationship, but it was of honour and obligation”. It is argued that the
parties were not ad idem and as such they never intended to form a legally
enforceable contract of employment. In this regard, the Respondent Inter alia referred
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to the case of church of the Province of Southern Africa Diocese of Cape Town V
CCMA and others (2001) 22 ILJ 2274 (LC)
61. Vusi M. Kunene V Total Moneni Filing Station MNZ 312/07 – Commissioner
MB. Mkhonta
CONSTRUCTIVE DISMISSAL
The Resignation of Applicant in constructive dismissal grounds meets the criteria
of constructive dismissal as indicated in the Employment Act, 1980 as amended
(hereinafter to as the Act ) and as guided by the applicable case law.
Section 37 of the Act provides that:
“When the conduct of an employer towards an employee is proved by the
employee to have been such the employee can no longer reasonably be expected
to continue in his employment and accordingly leaves his employment, whether
with or without notice, then the services of the employee shall be deemed to
have been unfairly terminated by his employer”.
In Andre Van Niekerk: Unfair Dismissal,(202) Siber Ink at page 19, Van
Niekerk A defies constructive dismissal as an incident wherein:
An employee terminated a contract of employment with or without notice
because the employer made continued employment intolerance for the
employee” …that “’ in most instances constructive dismissal is triggered by a
resignation” .
Van Niekerk goes on to argue that:
“the nature and extent of the right to claim unfair dismissal in these
circumstances if often misunderstood and that the law reports are littered with
cases in which employees, having resigned in arduous but not intolerable
working conditions, seek vengeance on their erstwhile employers. The courts
have been less than generous in extending assistance to employees in these
circumstances and a high proportion of constructive dismissal cases fail at the
first hurdle i.e. the requirement to prove existence of dismissal”…that the
courts have adopted an objective approach to constructive dismissal. It is not
the employee’s say so or perception of events that establishes intolerability, or
even the employer’s state of mind.
What is relevant is the conduct of the employer in an objective sense”,…that
“this implies not only that the test should be objective but that it should be an
act of final resort when no alternatives remain. The courts have also confirmed
that the issue of intolerability’ means that there is an onerous burden on the
employee. It requires the employee to show that, in the circumstances,
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continued employment would be “objectively unbearable”. More recent
judgement and awards have emphasized this strict approach to constructive
dismissal and, in particular, the requirement that the employee establish some
harsh, antagonistic or otherwise hostile conduct on the part of the employer
that precipitates the employee’s resignation. In summary, the relevant
considerations include the following:

The employers conduct does not have to amount to a repudiation of the
employment contract.

The employee who claims constructive dismissal must objectively
establish that the situation has become so unbearable that he or she
cannot be expected to work any longer.

The employee must show that he or she would have carried out on
working indefinitely, but for the employer creating the unbearable
circumstances.

The employee must exhaust all possible remedies before resigning.
John Grogan: Workplace Law, 8th edition, 2005) Juta & Company LTD at
page 113 highlights examples if intolerability and indicates that these include
but are not limited to:
“An offer of interior employment coupled with a threat of dismissal if an
employee did not accept the offer; unlawful deductions from an employee
salary; sexual and other forms of harassment; unjustified disciplinary
action ; the denial of company transport or exerting undue influence on the
employee to resign. In making out a case for constructive dismissal ….
Grogan J goes on to argue in page 115 that:
“the employee’s mere subjective feeling that he or she has been unfairly
treated is not in itself sufficient”… that “the test for whether the employer
has rendered the prospect of continuation of employment relationship
intolerable, is objective i.e. the existence of a constructive dismissal cannot
be determined from the state of mind of the employee alone”.
Further in highlighting the criteria for the evaluation of constructive dismissal
disputes and refer to Zondo JP’s conclusion in solid Doors (Pty) Ltd v
Commissioner Theron & Others (2004) 25 ILJ 2337 (LAC) at para28:
“That there are three requirements for constructive dismissal to be established,
the first is that the employee must have terminated the contract of employment.
The second is that the reason for termination of the contract must be that
continued employment has become intolerable for the employee. The third is
that it must not have been the employee’s who had made continued employment
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intoralable. All these three requirements must be present for it to be said that a
constructive dismissal has be established. If one of them is absent, constructive
dismissal is not established. Thus there is no constructive dismissal if an
employee terminates the contract of employment without the two other
requirements present. There is also no constructive dismissal if the employee
terminates the contract of employment because he cannot stand working in a
particular workplace”.
62. SWAZILAND COMMERCIAL AND ALLIED WORKERS UNION (SCAWU)
v VENICE (PTY) LTD PUNCH BOWL: SWMZ 158 /08 Lorraine Zwane Arb
RECOGNITION / REPRESENTATION
The Applicant lodged a dispute with the Commission for an Order directing
Respondent to grant it recognition. The procedure by which Applicant can acquire
recognition is outlined in Section 42 of the Industrial Relations Act. 2000 (as
amended) In terms of Section 42 (1), any registered trade union or staff
association may notify an employer that it seeks to exercise its organizational
rights in respect of a specified class of employees.
It is self evident, however that a union can only represent its members. SEE
JOHN CROGAN “WORKPLACE LAW” 8th EDITION AT 327.
a.) SMAPISA V MASTER GARMENT MNZ 586/06 : Bongani S. Dlamini
Arbitrator
Section 2 of the Industrial Relations Act, 2000 (as amended) defines a member of
staff as an employee who;
a.) Has authority on behalf of the employer to employ, transfer, suspend, lay
off, recall, promote, dismiss, reward, discipline other employees or authorize
such action, when the exercise thereof is not solely of a routine nature or
clerical nature, but requires the use of an independent judgment.
b.) Participates in the making of general company policy.
c.) Works in a capacity which requires the employee to have full knowledge of
the financial position of the employer.
d.) Has free personal access to other confidential information substantially
affecting the conduct of the business of the employer.”
Section 42(5) of the Industrial Relations Act (as amended) provides that; if not less than
fifty percent of the employees in respect of which the trade union or association seeks
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recognition are fully paid up members of the organization concerned, the employer shall,
within 30 days of receipt of the application and in writing –
a.) Grant to the applicant; or
b.) If the employer is in doubt, and advises the applicant so in writing, the parties
shall go for verification count.
c.) If the employer decides not to grant such recognition, the employer shall grant
such recognition, the employer shall lodge with the Court the reasons for the
refusal to grant recognition and serve a copy thereof on the industry staff
association…”
63. JULUKA DLAMINI V JJ SIGNS SWMZ 63/09 MR. Robert Mhlanga Arb
RETRENCHMENT (TERMINATION OF SERVICES)
Page 18 states that the notice of retrenchment does not manifest that there was
previous consultations between the parties. In, the Respondent does not allude to
the aforesaid meetings (Annexure “JJ2” allegedly held between the parties
regarding the issue of the contemplated retrenchment.
a.) However the Industrial Court has since expounded our law in so far as
individual consultation on the subject of retrenchment is concerned. In regard,
the case Thabo Simelane VD Ground(Swaziland), Industrial Court Case
No.166/02 and Lonhlanhla Masuku v KK Investments (Pty) Ltd
Industrial Court Case No.341/03
In the aforementioned cases, the Court laid down a legal requirement to the effect
that where an employer contemplates the retrenchment of an Individual employee;
the employer legally obliged to consult with the individual employee.
b.) In the case of Johnson and Johnson (Pty) Ltd V Chemical Workers
Industrial Union and Others (1999) 20 IJL 89 lac, The Labour Appeal
Court of South Africa stated that; “The employer must initiate the
consultation process when it contemplates dismissal for operational reasons.
It must disclose the relevant information to the other consulting the relevant
information to make representations about any matter on which they are
consulting; it must consider these representatives and, if it does not agree
with them, it must give reasons”.
c.) Van Jaarsveld and Van Eck in their book titled “principles of Law”
second Edition at page 225, state that; “substantive fairness with regard to
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retrenchment means that a valid or bona fide and fair reason must exist for
the termination of the employment of an employee on account of operational
reasons”.
d.) In the Phylis Phumzile Ntshalintshali v Small Enterprise Development
Company, Industrial Court case no. 88/2004 at pages 9-10 the Court stated
that “an employer has prerogative to structure its establishment and to
determine the size and character of its workforce in the manner most suitable
for its requirements. Where however decision is made which results in the
retrenchment of employees, the modern law provides procedural and
substantive safeguards to ensure that the decision is bona fide and
implemented in a fair and objective manner after reasonable effort has been
made to avert or minimize the loss of jobs.
64. FAITH KUNENE V SWAZILAND PROPERTY MARKET - SWMZ 290/08
Arb. Robert S. Mhlanga
UNDERPAYMENT / DISCRMINATION
Page 16 The Applicant in this case here argues that she is a commercial cleaner
and that she must be paid E973-00 being the statutory prescribed minimum wage
of a commercial cleaner in terms of the retail Hairdressing, Wholesale and
Distributive Trades order of 2006.
1. DISCRIMINATION
THULI MOTSA V OHN INVESTMENTS (PTY) LTD t/a CENTRAL
FILLING STATION - SWMZ 78/09 Arb. Mr. Robert S. Mhlanga
Page 22 In the case of this matter the evidence led herein reveals that the
Applicant was unfairly treated by the Respondent in that she was discriminated
against in terms of disciplinary action. The supervisor failed to discharge or
execute her duties as a supervisor.
a.) In the case of Sindi Mabuza v NEDBANK Swaziland Limited Case
No.45/2002 at pages 14 and 15, the Court in its analysis of evidence stated
that; the Applicant was junior and under the supervision of Comfort Khumalo.
As a supervisor Comfort had an extra duty to exercise caution that no
fraudulent accounts are opened.
b.) The Court in its ultimate decision in the Sindi Mabuza’s case (supra) at
page 17 stated that; “taking into account all the circumstances of this case,
it was not fair for the Respondent to dismiss the Applicant only, in the
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circumstances that showed that both the Applicant and her supervisor were
equally guilty of negligence.
In the circumstances of this case the Respondent was clearly unreasonable and
discriminatory”
65. NONTOBEKO SIMELANE & 11 OTHERS SWMZ 260/08 Ngcamphalala
Arb. B.
LEAVE / MATERNITY LEAVE
Pg 10. Defines maternity leave as leave granted to an employee arising from, or in
contemplation of her confinement.
a.) Section 102 of the Employment Act 1980 (as amended) goes on to state that;
Every female employee whether married or unmarried, who has been in
continuous employment of her employer for 12 months of more shall be
entitled to maternity leave with at least 2 weeks full pay upon delivering to
her employer
b.) Section 13 of the Wages Order, 2008 (Manufacturing and processing)
“ An employee who has completed the probation period shall be entitled to 30
days maternity leave with full pay”
c.) The dispute between the parties relates to whether 30days herein refers to working
days or calendar days. In the case of Master Garments (Pty) Ltd v Swaziland
Manufacturing and Allied Workers Union 561/06.
d.) Judge President P.R. Dunseith stated that;
“ if an employee does not normally work Saturday and Sunday then these
days cannot be regarded as leave days”
e.) The Court also noted by way of comparison that the Regulation of Wages of PreSchools Day care Centre’s Order, 2006 …
66. SHINEGIRL MOTSA vs PS FOREIGN AFFAIRS AND TRADE 1184/05
(CMAC) Manzini K Arb
CONSTRUCTIVE DISMISSAL; DISMISSAL
The Court in the case of Pretoria Society for the Care of the Retarded vs
Loots (1997) 18 ILJ 981 (LAC), formulated a test for constructive dismissal.
The Court pointed out the following considerations that have to be taken into
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(a)
(b)
(c)
(d)
Whether the employer, without reasonable and proper cause
conducted itself in a manner calculated, or likely to destroy or
seriously damage the relationship of confidence and trust between
employer and employee.
Whether the effect of the employer’s conduct, in its entirety’ when
judged reasonably and sensibly, is such that the employee cannot
be expected to put up with it.
Whether when the employee does resign as a result of the
intolerable conduct of the employer, the employee is actually
indicating that the situation has become so unbearable that the
employee cannot go on working for the employer. Such that by
resigning, the employer is in effect saying that he or she would
have carried on working indefinitely had the unbearable situation
not been created.
The employee resigns on the basis that he or she does not believe
that the employer will reform, or abandon the pattern of creating an
unbearable working environment.
It is clearly stated in several legal authorities that in a dismissal, the services of the
employee, and the obligations of the employer are terminated, whereas in a suspension
the employee is temporarily prohibited from rendering his services to the employer
pending an investigation against him. (See Van Jaarsveld & Van Eck, “Principles of
Labour Law page 125). The suspension of an employee does not constitute dismissal,
and therefore he is entitled to his salary and fringe benefits until he is dismissed (Laws of
South Africa, First Reissue Vol. 13, Part 1 para 240, see also Mabilo vs Mpumalanga
Provincial Government 1999 ILJ 1818 (LC).
67. SIFISO MANANA vs PS MINISTRY OF EDUCATION MB 131/06 (CMAC)
K. Manzini Arb
CONFIRMATION / AREER WAGES
The case of the Applicant is basically that he wishes to be confirmed into the post of
painter because he holds a certificate in painting. The Applicant also wishes to be paid
arrear wages, leave pay and also wishes to be transferred to another work station as he
does not get along with his superiors at SCOT. The Applicant relied on the cases of
NIKIWE NYONI vs THE SWAZILAND GOVERNMENT INDUSTRIAL COURT
CASE NO. 103/05 and also VUSUMUZI SHONGWE vs THE SWAZILAND
GOVERNMENT INDUSTRIAL COURT CASE NO. 216/2000.
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I have had occasion to peruse these two cases, and can distinguish these from the
Applicant’s own set of circumstances. The findings of the two cases cannot be used to
support the Applicant’s claims as first of all the Nikiwe Nyoni case was a case involving
a permanent government employee who sought to be paid arrear acting allowance. In the
instant case, Mr. Manana has not shown that he was ever appointed to act as a painter,
and neither has he produced an instrument appointing him to such a position.
68. THEMBEKILE DLAMINI & 7 OTHERS VS PS MINISTRY OF PUBLIC
SERVICE MB 046/06 (CMAC) Dlamini Arb
JOB EVALUATION
4.
It further follows that, as the respondents expert witness admitted that it is the job
that is evaluated not the individual, that where the incumbents perform the same
and equal job and achieve the same and equal desired results, they should be
remunerated the same and equal remuneration arising out of the job evaluation.
Should however the employer wish to award for personal academic achievements
while in service a different type of incentive should be established directed to that
academic achievement as a stand alone reward.
5.
In this regard the principles enshrined in Convention 100, “Equal
Remuneration Convention 1951; which concerns Equal Remuneration for
Men and Women Workers for Work of Equal Value”, of the International
Labour Organisation, becomes relevant in this case. This Convention was
ratified by the Government of the Kingdom of Swaziland on the 5th June 1981 and
there has been no revocation of same since then. The relevant Article is article 1
(a), Article 2 (1). Further, Article 3 paragraphs 1,2 and 3 also become relevant.
6.
In addition to the above observation, the parties are referred to the Industrial
Court Case No. 164/05 dated 7th September 2005 in the matter between NIKIWE
NYONI VS THE ACTING COMMISSIONER OF ANTI –CORRUPTION
UNIT page 6 first paragraph. In that case and paragraph the respondent had relied
on a document titled “SCHEMES OF SERVICES FOR THE ACCOUNTANCY
CADRE”. The rationale for referring to this case is that at least the respondent
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had a basis on which to argue why the applicant could not be appointed to the
substantive position of Principal Accountant. Similarly in the case before me one
would have expected the respondents to submit a similar document on which they
were basing their arguments why Teacher Leaders with a diploma qualification
should remain in a separate lower grade adfinitum, irrespective of the experience
and the fact that they achieved equal production with those with degrees.
7.
Respondents stated that for the applicants to qualify for the grade C5/C6 the
applicants must be in possession of a B.A. ED Degree. We were however given
contradicting statements when the respondent witness was asked why amongst the
applicants there were at least more than two who have a degree. The respondents
turned around and said “there was no instrument appointing them and even
then it would depend on whether there is a vacancy”. This in my view was a
self defeating argument. It is common cause that applicants were long appointed
as Leader Teachers.
8.
In the case referred to above the Court referred to the respondents General Orders
– which states “an employee employed on an ” acting” capacity must be
confirmed in that position upon expiry of six months” It is an undisputed fact
that the applicants were not even appointed on an “acting capacity” but these were
confirmed positions hence it would be unfair to remunerate them differently. In
other words if the respondents have a provision for an employee who is on an
acting position that he/she would be confirmed after six months irrespective of the
qualification, I am convinced that it would be even moreso to pay equal wage for
equal work, with no discrimination based on qualification.
9.
It is further common cause that the Swaziland Government has not rescinded from
the Convention 100 ratified on the 5th June 1981.
69. Boy Wilmoth Kunene vs Cabinet Office DSPT NO. 012/05
SUSPENSION
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Toney Healy & Associates, Industrial Relations Consultants in
their labour tones archive 2001 have stated that:“ Perhaps the trust common form of employee suspension arises
when an employer suspends an employee prior to and until the
employee attends a disciplinary enquiry, the details of which have
been included in a notice to attend a Disciplinary Enquiry issued to
the employee by the employer. The suspension of an employee
prior to a disciplinary enquiry would ordinarily occur when the
employer believes the company would be prejudiced by the
continued presence of the employee at work up until the
disciplinary enquiry. For example, if an accountant was accused of
fraud, his or her continued presence within the Accounting
Department prior to the disciplinary hearing may well prejudice
the company”.
This then helps to show that suspension must not be used
indiscriminately. It has become a general rule that disciplinary
hearing must be held either before suspension or after suspension
depending on the gravity of a case at hand.
70. SNACS O.B.O. NURSING ASSISTANTS VS MINISTRY OF HEALTH AND
MB 158/05 CMAC MANZINI K ARB
ACTING ALLOWANCE
The Applicants representative referred the witness to a Court decision, being; NIKIWE S.
NYONI vs THE SWAZILAND GOVERNMENT – Industrial Court Case No. 164 of
2005.
In my view this case cannot be said to override the General Orders, as it does not seek to
challenge the validity of any of its provisions, and neither does it challenge the provisions
of the circular. In my opinion the case of the nursing assistants is entirely different from
the case of Ms Nikiwe Nyoni, since I am not entirely convinced that the Applicants ever
“acted” in any position, let alone that of a staff nurse, as there was no clear demarcation
of their own duties, and when they are said to doing duties beyond their of practice and
training. At least in the case of Nikiwe Nyoni, the Applicant was appointed to do the
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duties of Principal Accountant, and this position was supervisory in nature, and the duties
were clearly specified and even annexed to the application filed to court. This has
certainly not been done in the instant case.
In the premises, I cannot hold that the acting allowance claimed by the Applicants is due
to them.
The Applicants’ representative however countered this evidence by saying that the case
of NIKIWE S. NYONI vs SWAZILAND GOVERNMENT INDUSTRIAL COURT
CASE NO. 164/05 was authority that the Applicants ought to be paid an acting allowance
despite the fact that there was no provision in the General Orders, or in the Establishment
Circular No. 5 of 1997.
Upon perusal of the case concerned, I have found that the applicant in that case was
actually appointed by the Acting Commissioner of the Anti – Corruption Commission to
perform the duties of Principal Accountant. In short, she was appointed to act as such,
and was further placed on salary grade 12 on an acting basis. This means that the
Applicant was duly appointed by her superiors to act in that position. On further perusal,
it came to light that the duties of the Applicant as Principal Accountant were supervisory
in nature, and these duties were listed in annexure “G” of the Applicants’ papers.
This position, I have further discovered, does in fact attract acting –allowance, as
evidenced by page 5 of Establishment Circular 5/ 1997, and another distinguishing factor
about this case is that the Applicant in that case demanded to be paid arrear acting
allowance.
This case is certainly different from the case of the nursing assistants simply because the
Applicant in that case was appointed to act in a position which attracted payment of
acting allowance, and the issue was not whether the allowance was due to her at all, but
rather that she should receive payment for a particular period.
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In casu, the nursing assistants have not stated which position they acted in, and for how
long they acted as such. This makes it very difficult to ascertain if at all the position they
claim they acted in does attract acting allowance, and therefore if the allowance is due to
them in fact. This is further complicated by the fact that they do not say how long they
acted in the said position, in order to help in computing how much they ought to be paid
if at all they have to be paid anything.
It was stated by Ms Mhlanga that if the period of acting is less than 3 weeks, then this
could only be termed “relieving” an absent official, and not “acting” per se.
In my view this case cannot be said to override the General Orders, as it does not seek to
challenge the validity of any of its provisions, and neither does it challenge the provisions
of the circular. In my opinion the case of the nursing assistants is entirely different from
the case of Ms Nikiwe Nyoni, since I am not entirely convinced that the Applicants ever
“acted” in any position, let alone that of a staff nurse, as there was no clear demarcation
of their own duties, and when they are said to doing duties beyond their of practice and
training. At least in the case of Nikiwe Nyoni, the Applicant was appointed to do the
duties of Principal Accountant, and this position was supervisory in nature, and the duties
were clearly specified and even annexed to the application filed to court. This has
certainly not been done in the instant case.
In the premises, I cannot hold that the acting allowance claimed by the Applicants is due
to them.
71. ALFRED DLAMINI VS SHOPRITE CHECKERS (PTY) LTD STK 038/10
CMAC SHABANGU ARB
1.1
It is common cause that the Applicant was an employee to whom section
35 of the Employment Act, 1980, applied. The burden of proof borne by
the Applicant in terms of section 42 (1) of the Employment has therefore
been successfully discharged.
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1.2
Consequently, for his dismissal to be said to have been fair, the duty or
onus of proof was upon the employer (Respondent) to prove that the
Applicant was dismissed for one of the fair reasons of termination of a
contract of employment stated in section 36 of the Employment Act. This
proposition is in terms of section 42(2) of the Employment Act,1980
which provision, for purposes of the nature of this award- i.e.an ex-parte
award, I consider it to be important to be quoted verbatim for the
avoidance of any doubt:
“42(2) The services of an employee shall not be considered as having
been fairly terminated unless the employer proves(a) That the reason for the termination was one permitted by section 36 ;
and
(b) That, taking into account all the circumstances of the case, it was
reasonable to terminate the services of the employee” (my emphasis).
1.3
It is trite law that burdens of proof are discharged through the evidence
led and, in civil suits, the standard of proof is on a balance of
probabilities. It was therefore incumbent upon the Respondent to adduce
probable evidence in proof of its cause that the applicant’s dismissal was
fair both in terms of substance and procedure and in the whole
circumstances of the case. The opening statements cannot stand in the
place of evidence which is given under oath and is subject to testing or
scrutiny by the other side through cross-examination.
1.4
The fact of dismissal is common cause. The Applicant disputes the
fairness of the dismissal. He has led evidence in support of why he
complains that the dismissal was both substantively and procedurally
unfair. I am inclined to find that his arguments in disputing the
substantive and procedural fairness of the dismissal are sensible as they
are not just bold and unsubstantiated allegations of unfairness. They are
supported by evidence.
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1.5
The Applicant’s case surely warranted to be tested against the employer’s
evidence and arguments in proof of the fairness of the dismissal. In the
absence of any such evidence from the Respondent, the Applicant’s case
remains completely uncontroverted whatsoever and should therefore
stand.
1.6
In terms of section 42(2) of the employment Act, the Applicant does not
have to prove the alleged unfairness of the dismissal. He simply had to
make up a case against the Respondent regarding the unfairness of the
dismissal. That case has been clearly made in this matter. After a prima
facie case had been made by the Applicant, it was then upon the
Respondent to adduce evidence proving that the dismissal was, both in
fact and in law, fair. Such evidence has not been adduced at all, which
leaves the Applicant’s case uncontroverted.
1.7
Section 42(2) of the Employment Act is compatible with Convention
158 of the International Labour Organization (ILO) Conventions
which requires, inter alia, that:
1.7.1
The employment of a worker should not be terminated
without valid reason (Article 4).
1.7.2
The burden of proving the existence of a valid reason rests on
the employer (Article 9).
1.8
See: ILO Convention 158 (Termination of Employment Convention,
1982)
The provisions of section 42(2) of the Employment Act have been strictly
and consistently followed without derogations even in ex parte or
unopposed actions at the Industrial Court of Swaziland. In a host of ex
parte trials, the Court has consistently held that by its default, the
Respondent has failed to discharge the statutory onus resting on it in
terms of section 42(2) and consequently found in favour of the
Applicants (quote not verbatim).
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See: Bhekisisa H. Motsa & 2 Others vs. Cape Contracts (PTY) Ltd,
Case No: 292/2001 (Industrial Court);
Sibongile Maseko vs. Meat World Butchery, Case No: 128/2003
(Industrial Court);
Dumsane Simelane & Another vs. Swaziland Brewers, Case No:
75/2004 (Industrial Court);
Albert Magagula vs. General Sales and Distributors, Case No:
103/2005 (Industrial Court);
Victor Mashinini vs. Brahbhudas shandrakat, case no: 31/2005
(Industrial Court);
Mphikeleli Sifani Shongwe vs. The Principal Secretary-Ministry of
Education and 3 Others, Case No: 207/2006 (Industrial Court).
1.9
I am accordingly also going to find that by its default, the Respondent has
failed to discharge the onus resting upon it, of proving the fairness of the
Applicant’s dismissal.
1.10 The Applicant claimed re-instatement. In terms of Section 16(1)(a) of the
Industrial Relations Act, 2000 (as amended) re-instatement is a primary
remedy if a finding has been made that an employee’s dismissal was
unfair. Nothing has been shown to prove that such an order may not be
possible of being implemented. The Applicant believes that the parties’
relationship has not been permanently damaged by this dispute. The
parties had been together for about 9 years in lieu of this dispute, a
relatively lengthy period. This period had not been characterized by any
of such rough encounters of disciplinary enquiries. It should therefore be
possible for the parties to bury the past and expect the breaking of a new
dawn.
1.11 The Applicant’s claim for 18 days leave dues has not been proven
through evidence and will therefore not be granted. The onus of proving
this claim was upon the Applicant through evidence. This claim was only
raised by the Applicant’s representative during closing submissions but
was not covered during the evidence stage. It should therefore fail for
lack of proof.
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2
AWARD
The Applicant’s dismissal is declared both substantively and procedurally unfair.
72. NOBUHLE NDLANGAMANDLA vs MP FOOD PROCESSORS (PTY) LTD
CMAC REF NO: SWMZ 283/10 CMAC Dlamini VZ Arb
RESTRUCTURING; RETRENCHMENT
1.1
In Dumsani Lushaba v JD Group (Pty) LTD ( IC Case no: 210/04), the
court observed that it was within the employer’s prerogative to restructure
its establishment and to determine the size and character of its workforce
in the manner most suitable for its requirements.
1.2
The Dumsani Lushaba case concerned the restructuring of operations of
the JD Group business, following the integration of employees from
another company, whose business had been taken over by the group. One
of the issues to be resolved was the duplication of the position of Regional
Manager as both companies had Regional Managers.
1.3
In the Lushaba case, the employer used the last in first out as a selection
criteria for declaring one employee redundant. The court held that the
employer’s decision was reasonable made in good faith and had a clear
commercial rationale.
1.4
The facts of the Lushaba case are distinguishable from this matter; Besides
the nature of the Applicant’s duties, no evidence was produced by the
Respondent to prove what position Applicant was appointed to in the 4th
May 2008. The Applicant stated that in the job interview, she submitted
her AAT certificate as her academic qualification. The Report of Dispute
is recorded that her capacity was Accountant, but this contradicted by her
own evidence during arbitration. No letter of appointment or written
particulars of employment were produced to prove her job title. Indeed
Mahle Sukati asserted that Mr. Muller said she should give the Applicant
work, without informing the former what the Applicant’s position was.
1.5
In terms of Section 22 (1) of the Employment Act, every employer shall
within two (2) months of engagement give each employee a completed
copy of her written particulars of employment. The written particulars of
employment include a short description of the employee’s work.
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1.6
In the case of Patrick Masondo v Emalangeni Foods (IC Case no:
45/04), at para 24 the Judge President made the following observation;
“The purpose of the Section 22 Form is to record the
essential terms of employment and thereby avoid
subsequent disputes such as that which has arisen in
this case. The form constitutes prima facie evidence of
the matters contained therein. The primary obligation
to ensure compliance with Section 22 rest on the
employer, to the extent that non-compliance constitutes
a criminal offence on the part of the employer”.
1.7
The law requires the employer to consider ways to avoid and minimize
retrenchment before the employee’s services are terminated. Ms. Tanya
Stanley’s evidence is therefore of no relevance to the point in issue. See
Cheadle: Retrenchment: The New Guidelines (1985) 6 ILJ 127;
PHYLLIS PHUMZILE NTSHALINTSHALI v SEDCO (IC CASE
NO 88/2004); DUMSANI LUSHABA v JD GROUP (PTY) LTD (IC
CASE NO: 210/2004).
73. MCOLISI THOKOZANI VILAKATI vs D N ENTERPRISES (Pty) CMAC
REF NO: SWMZ 536/10 Dlamini VZ Arb
1.8
In Coopers & Lybrand and Others v Bryant 1995 (3) SA 761 (A)
Joubert JA made these remarks;
“I proceed to ascertain the common intention of
the parties from the language used in the
instrument. Various canons of construction are
available to ascertain their common intention at
the time of concluding the cession. According to
the ‘golden rule’ of interpretation the language
in the document is to be given its grammatical
and ordinary meaning, unless this would result
in some absurdity, or some repugnancy or
inconsistency with the rest of the instrument.”
5.3 The learned CP Joubert JA in the Cooper case continued to propound as follows:
“The mode of construction should never be to
interpret the particular word or phrase in
isolation (in vacuo) by itself…The correct
approach to the application of the ‘golden rule’
of interpretation after having ascertained the
literal meaning of the word or phrase in question
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5.4
5.5
5.6
is, broadly speaking, to have regard: 1 to the
context in which the word or phrase is used with
its interpretation to the contract as a whole,
including the nature and purpose of the contract,
as stated by RUMPFF CJ supra: 2 to the
background circumstances which explains the
genesis and purpose of the contract i.e. to
matters probably present to the minds of the
parties when they contracted”.
The Cooper case was cited with approval by the Industrial Court of
Swaziland in Stuart Banks v Imphilo Clinic (Pty) Ltd and Others (IC
Case no: 528/07). I will refer to the facts of that case later in the award
because of its import to the facts of this matter.
In Pangbourne Properties Ltd v Ramsden (Pty) Ltd 1996 (1) SA 1182
(SCA), the court quoted the dictum of INNES CJ in Glenn Brokers v
Commercial General Agency Co Ltd 1905 TS 737 at 740-741, who
propounded as follows;
“In reading a document like this, we are justified
in looking at the circumstances under which the
guarantee was given, and the position of the
various parties concerned. That is necessary in
order to enable us rightly to understand and to
place ourselves in the position of the parties at
the time. But, having done that, I do not think we
should gather from the circumstances what the
parties meant, or what it (sic) is fair and
equitable to think they meant, and then see
whether we can ingeniously so read the
document as to deduce that meaning from its
language. The right method is first to have
regard to the words of the document, and if they
are definite and clear we must give effect to
them. In every case where a document has to be
construed so as to arrive at the intention of the
parties, if a meaning is apparent upon the face of
the document, that is the meaning which should
be given to it….”
In Total South Africa (Pty) Ltd v Bekker No: 1992 (1) SA 617 (A), the
Supreme Court of Appeal opined as follows;
“What is clear, however, is that where sufficient
certainty as to the meaning of a contract can be
gathered from the language alone it is
impermissible to reach a different result by
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5.7
5.8
5.9
drawing inferences from the surrounding
circumstances…The underlying reason for this
approach is that where words in a contract,
agreed upon by the parties thereto, and therefore
common to them, speak with sufficient clarity,
they must be taken as expressing their common
intention….”See OK Bazaars 1929 Ltd v
Grosvenor Buildings Pty Ltd and Another 1993
(3) SA 471 (A).
The dispute between the parties is simply this; the Applicant submits as
follows; “because of the terms and conditions of our agreement, I am
owed 20% commission / profit share for the sales I made in January and
April 2010 respectively.” The Respondent’s response is: “I do not think
so”.
The agreement is titled ‘Machine Sales Contract Commission Based’. On
page two of the agreement, clause one is subtitled ‘ Commission / Profit
share’ and it provides as follows;
“1. To cover your basic costs plus as per
the above, you will be expected to
achieve a minimum monthly gross
profit of E38 000.00.
2. Any additional profit will be calculated
and paid at a rate of 30% or at a
reduced rate, depending on the
percentage of gross profit achieved,
as per the table on page three.
3. Your sales target will be E90 000.00 per
month for the first two months after
which it will be increased to
E120000.00 per month. Monthly sales
of E120000.00 (done at 55%markup)
will
result
in
approximately
E.14000.00 commission.”
Clause 2 is subtitled ‘Conditions’. It provides thus;
“1. Any profit will be calculated at 30%
from ‘base’, and paid accordingly.
(Gross profit is defined as the selling
price less the base price at the factors
provided by the contracts controller)
In order for the above to be met, the
gross profit on any particular
transaction needs to exceed 30%,
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5.10
failing which a reduced rate will be
applicable. (Refer to major accounts).
2. You will be required to achieve at least
80% of your target (excluding the first
month of employment), constantly
failing which you will be required to
leave the company.
3. Profit share will only be payable once
the company has received full
payment for goods supplied.
4. The contract is reviewable after three
months, where it will be decided if you
qualify to be with the Gestetner
family.”
Clause 5 subtitled ‘Major accounts transactions’, provides as follows and
has the following table;
“In cases where the gross profit on a
particular transaction drops below 30%,
the company reserves the right to reduce
the profit rate as per the following scale;
Gross Profit %
=Mark up
Rate
25% - 29%
34% - 43%
30%
20% - 24%
25%- 34%
25%
12% - 19%
14% - 25%
20%
Below 20%
5.11
Box Commission
The relevant portion of Clause 8 which is subtitled ‘General’ provides
this;
“1. Machines may be sold on a cash, rental or
copy service plan basis only. No credit
terms
are
available
unless
prior
arrangements have been made with your
responsible manager.”
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5.12
It is common cause that the Applicant failed to meet the sales target set out
in clause one paragraph three, consequently the parties mutually agreed to
terminate the contract in terms of clause two paragraph two.
5.13
It is my finding that the literal meaning of clauses one, two and five read
together with the other clauses of the contract is that the common intention
of the parties was that, the Applicant would only share the profits of the
sales he made. This commission was meant to be an incentive for the
Applicant to meet his target.
5.14
The agreement defines ‘gross profit’ as the difference between the selling
price and base price. Now in the Stuart Banks case (supra), the learned
Dunseith J.P. was faced with a dispute requiring the interpretation of a
contract, more specifically the meaning of profit. The dispute between the
parties in that case was, whether the agreed profit share (10%) meant
operating profit or capital profit or both.
In the Stuart Banks case at page 7 para 13 the court made the following
remarks after a review of the case law on interpretation of contracts
(documents);
5.17
“The ordinary grammatical meaning of the word
profit is “financial gain; excess of returns over
outlay”- (The Concise Oxford Dictionary (9th
ED). However in the commercial world the profit
of a company may be of two kinds. First there is
a profit arising out of the business operations of
the company, representing the credit balance on
the
revenue
account
after
deductions
expenditure from income. This kind of profit is
commonly referred to as trading or operating
profit. Secondly there is the profit realised by
dealing with the fixed capital and forming an
accretion to capital, as, for instance, when assets
of the company are sold for an amount in excess
of their value as reflected in the company
account. This kind of profit is commonly
referred to as profit of a capital nature. See
Halsburg’s Laws of England (4th ED) Volume 7
para.604.”
Profit means excess revenue over expenditures in a business transaction.
Gross profit means total sales revenue less the costs of the goods sold, no
adjustment being made for additional expenses and taxes. Net profit is the
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total sales revenue less the cost of the goods sold and all additional
expenses. See Black’s Law Dictionary (8th Ed).
5.18 The markup or profit margin is the difference between the cost of something
and the price for which it is sold. The ratio, expressed as a percentage,
between this difference and the selling price. For example, a copier
costing a retailer E2000.00 and sold for E2500.00 has a profit margin of
20% (E500.00 difference divided by E2500.00 selling price multiplied by
100). See Black’s Law Dictionary (8th Ed).
5.19 Regarding the first transaction, the Applicant attempted to dispute the fact
that the Respondent made a loss on the sale of the second-hand multifunctional machine. According to the Applicant, the Respondent made a
profit when she sold the machine for E18 789.00. This was because the
copier had depreciated in value owing to the fact that certain components
had broken down and it had been lying idle in the Respondent’s
showroom.
5.20 However the Applicant did not produce any evidence to gainsay the
Respondent’s version that the machine cost her 38 000.00. No evidence of
depreciation was adduced. The Respondent demonstrated au fait with her
products. She had a good understanding of her machines and the Applicant
could not dispute such knowledge. Moreover the Respondent argued that
the components were designed to have a limited lifespan.
5.21 I find that the Respondent did make a financial loss in the sale of the
DSM622MFP, the machine having cost her E38 000.00 and having been
sold for E18 789.00.
5.22 Ordinary loss is defined as a loss incurred from the sale or exchange of an
item that is used in a trade or business. Net loss means the excess of all
expenses and losses over all revenues and gains. See Black’s Law
Dictionary (8th Ed).
74. BHEKI THWALA vs LEWIS STORES
CMAC REF NO: STK 159/06
GROSS DISHONESTY; GROSS NEGLIGENCE; DISCIPLINARY HEARING
6.1.1 John Grogan, Dismissal Jutta and Co Ltd, p 116, states that dishonesty is a
generic term embracing all forms of conduct involving deception on the part of an
employee. The dishonest conduct need not constitute a criminal offence. It can
entail an act or omission which an employer is morally entitled to expect an
employee to do or not to do. A charge of dishonesty requires proof that the person
acted with intent to deceive.
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6.1.2 In Nedcor Bank Ltd v Frank & Others (2002) 7 BLLR 600 (LAC) at 603,
Willis JA remarked that, dishonesty entails a lack of integrity or
straightforwardness and in particular, a willingness to steal, cheat, lie or act
fraudulently.
In Sifiso Motsa v Attorney General ( case no: 1888/98) (HC), Masuku J. quoted with
approval the following remarks from Small v Smith 1954 (3) SA 434 at 438 per
Claassen J:
“It is, in my opinion, elementary and standard practice for a party to put to each
opposing witness so much of his own case of defence as concerns that witness,
and if need be, to inform him, if he has not been given notice thereof, that other
witnesses will contradict him, so as to give him fair warning and an opportunity
of explaining the contradictions and defending his own character. It is grossly
unfair and improper to let a witness’s evidence go unchallenged in crossexamination and afterward argue that he must be disbelieved”. (Emphasis
added).
GROSS NEGLIGENCE
John Grogan Supra at p122, remarks that, the requirements for dismissal for negligence
are; that the employee failed to exercise the standard of care and skill that is reasonably
required; that lack of care or skill resulted or could have resulted in loss to the employer;
that the negligent act or omission could have resulted or resulted in loss to the employer,
and the negligence must be gross.
As per The Central Bank of Swaziland v Memory Matiwane ( ICA case no:
110/93) and Swaziland United Bakeries v Armstrong Simelane (ICA case no:
117/94), in any matters before the Industrial Court and by an extension
arbitration, the case has to be heard de novo. I have to consider the evidence led at
the disciplinary hearing as well as that led before the arbitration.
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In the following cases, it has been held that dishonesty is a very serious
misconduct that destroys the employment relationship. As such an employee’s
length of service and clean disciplinary record cannot override the gravity of the
dishonesty committed;
Sidumo & Ano v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ
2405 (CC); Carter v Value Truck Rental (Pty) Ltd (2005) 1 BLLR 88 (SE);
and Council for Scientific Research v Fijen 1996 (2) SA 1 (A).
In Mshayeli Sibiya v Cargo Carries (IC case no: 282/03) the court remarked
that the employer should afford the employee an opportunity to challenge adverse
evidence.
In Nkosinathi Ndzimandze & another v Ubombo Sugar Limited (IC case no:
476/05), the court observed that, even in circumstances where management is
convinced of the guilt of an employee, it is still obliged to ensure that fair
disciplinary process is observed.
75. KHANYISILE DLAMINI vs M.P. FOOD PROCESSORS (PTY) LTD CMAC
REF NO: SWMZ 282/10 Dlamini VZ Arb
John Grogan, Dismissal Jutta and Co Ltd, p 107 remarks that abscondment is deemed
to have occurred when the employee is absent from work for a time that warrants the
inference that the employee does not intend to return to work.
In Alpheus Thobela Dlamini v Dalcrue Agricultural Holdings (Pty) Ltd (IC Case
No: 123/05) at p 10 the Judge President made the following observation;
“Absenteeism differs from absconding or, as it is more often
described, desertion from work. Absenteeism is merely an
unexplained and unauthorized absence from work, whereas
desertion means an unauthorized absence with the intention
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never to return. Both absenteeism and desertion are breaches
of the contract of employment, but desertion is repudiation of
the contract. In other words, the employee’s desertion
manifests his intention no longer to be bound by his contract of
employment”. (Emphasis added).
The Judge President PR Dunseith in Alpheus Thobela Dlamini (supra) at 10-11,
proceeds to remark as follows;
“Whether or not absenteeism amounts to desertion is a matter
of fact, the critical question being whether the employee has
absented himself with the intention never to return. His
intention must be determined from all the circumstances. The
test is objective and is the same on that which applies to all
alleged repudiation of a contract, namely does the conduct of
the employee, fairly interpreted exhibit a deliberate and
unequivocal intention no longer to be bound by the
employment contract”. (Emphasis added).
However the authenticity of the Child’s Health Card was not in issue. Even assuming it
was in issue, the Industrial Court in Jabulani Simelane v Cudbury Swaziland (Pty)
Ltd (IC Case No: 261/99); held that the onus of proving that hospital documents are false
lies with the employer.
The chairperson quoted from Derek Jackson’s comment sourced from www.
Labourguide.co.za/ going on maternity leave. According to Derek Jackson, It is every
employee’s duty to inform her employer timeously about her pregnancy and particularly
when she will want to go on maternity leave.
John Grogan, Workplace Law (8th ed) Jutta & Co Ltd , p 174, remarks that an
obligation rests on the employee to notify her employer in writing, if she can write, of the
date on which she intends to start maternity leave and this is in terms of Section 25 of the
Basic Conditions of the Employment Act of 1983.
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While the Swaziland Employment Act does require an employee to produce a certificate
by a medical practitioner or a midwife setting forth the expected or actual date of
confinement, before she can be entitled to maternity leave, she however does not commit
an offence if she proceeds on maternity without having first delivered the certificate .See
Section 103(3) (Supra).
The case law that was cited by the Respondent‘s counsel in his closing submission are
distinguishable because they deal with absenteeism in general. None of the cases referred
to are in point (dismissal on the grounds of absenteeism because of pregnancy or
maternity leave).
In terms of Section 4 (1) (a) and (j) of the Industrial Relations Act 2000 (as amended), the
purpose and objective of the Act is to promote fairness and equity in labour relations, and
also ensure adherence to international labour standards.
Now, the question of the application of Conventions and Recommendations of the
International Labour Organisation was considered by the Industrial Court of Appeal in
Zodwa Kingsley and 10 others v Swaziland Industrial Development Company
Limited (ICA Case No: 11/2003).
In the Zodwa Kingsley case (supra) the court referred with approval to the article by
Sifiso S. Dlamini;
Swaziland’s New Industrial Relations Act 2000: A Legal Response, 2000
ILJ 2174 at 2176. Per EBERSOHN JA at 4-5, the court made the
following statement;
“Sifiso S. Dlamini in a very thorough and comprehensive
article argued that when the Kingdom of Swaziland adopted
the Labour Relations Act 2000 (Act 1 of 2000) (sic), is in
effect incorporated the Conventions and Recommendations
of the International Labour Organisation into the law of
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Swaziland. I am of the opinion that the learned author is
correct. In so far as it may be argued that the Labour
Relations Act of 2000 (sic) did not incorporate the
Conventions and Recommendations of the International
Labour Organisation and as it is necessary to remove any
doubt about it, this Court after due consideration, hereby
finds
and
confirms
that
the
Conventions
and
Recommendations of the International Labour Organisation
apply in the Kingdom of Swaziland and must be adhered to
and be applied in conjuction with the labour legislation of
Swaziland”. (Emphasis added).
Articles 8(1) of the International Labour Organisation’s
Convention 183, the Maternity Protection of 2000, provides that;
“It shall be unlawful for an employer to terminate the
employment of a woman during her pregnancy or absence on
leave referred to in Articles 4 or 5 or during a period following
her return to work to be prescribed by national law or
regulation, except on grounds unrelated to the pregnancy or
birth of the child and its consequences or nursing. The burden
of proving that the reason for dismissal are unrelated to
pregnancy or childbirth and its consequences or nursing shall
rest on the employer”. (Emphasis added).
Articles 8(2) of Convention 183,2000 reads;
“A woman is guaranteed the right to return to the same
position or an equivalent position paid at the same rate at the
end of the maternity leave”.
According to Section 2 of the Industrial Relations Act, if the
reason for the dismissal of an employee is because of the employee’s
pregnancy, intended pregnancy, or any reason related to her pregnancy,
such dismissal shall be deemed to be automatically unfair.
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Section 32(3) of the Constitution of the Kingdom of Swaziland
Act, 2005 provides that;
“The employer of a female worker shall accord that
worker protection before and after child birth in
accordance with the law”.
John Grogan(supra) at 74 remarks that whether the reason for
the dismissal is in fact related to the employee’s pregnancy is a question of
fact or, where the employer claims that other reasons were more pressing,
is a question of legal causation.
In essence the Industrial Relations Act provides that, where an employer terminates
the services of an employee because she went on maternity leave without its permission,
that dismissal shall be deemed automatically unfair. However this is not an issue I have to
decide.
Accordingly I find that the Applicant’s dismissal was substantively unfair.
However I find that the dismissal was procedurally fair. The Applicant alleged that she
noted an appeal against her dismissal, but she did not state when and to whom was the
letter of appeal submitted at the Respondent’s premises. She did not even produce a copy
of the letter of Appeal together with such proof of service.
The Applicant seeks reinstatement as her preferred relief. In terms of Section 16 (2) of
the Industrial Relations Act, the Courts and by extension, the Arbitrator shall require the
employer to reinstate the employee unless; the employee does not wish to be reinstated;
the circumstances surrounding the dismissal are such that a continued employment
relationship would be intolerable; it is not reasonably practicable for the employer to
reinstate the employee or the dismissal is unfair only because the employer did not follow
a fair procedure. The Industrial Court in the case of Constance Simelane v Swaziland
Electricity Board (IC Case No: 273/2003) applied Section 16(2) (supra).
The following facts favour an award of reinstatement;
(a) the Applicant wishes to be reinstated;
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(b) the Respondent’s reason for dismissing the Applicant does not involve
any dishonesty on her part. In the circumstances the trust between the
Respondent and the Applicant has not been broken;
(c) the Respondent did not submit that it would not be reasonably
practicable to reinstate the Applicant;
(d) despite the lapse of seventeen (17) months after the Applicant was
dismissed, the nature of her job and the skill required to perform it
would not entail any hardship in adjusting thereto;
(e) the Applicant’s dismissal was not for a fair reason and in all the
circumstances of the case unreasonable.
Section 16(1) (a) of the Industrial Relations Act reads;
“if the Court finds a dismissal is unfair, the Court may-order
the employer to reinstate the employee from any date nor
earlier than the date of dismissal”.
In the Swaziland Electricity Board v Collie Dlamini (ICA Case No: 2 / 2007), the
Industrial Court of Appeal per Mamba JA in reference to Section 16(1)(a), made the
following statement of law;
“…The Section empowers the Court to order an employer to reinstate
the employee from any date not earlier than the date of dismissal. It
could even conceivably be in future, that is to say after judgment. The
Court has discretion on the issue”.
I hold that an order directing the Respondent to re-instate the
Applicant in the position that she previously held, and with a pay rate not
less than that at which she was previously paid, would be fair and
equitable having regard to all the circumstances of the case.
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76. GABRIEL GWAMBE vs SD CITRUS (PTY) LTD CMAC
029/11
Dlamini VZ Arb
REF
NO:
STK
WILLFUL DAMAGE TO PROPERTY; DISCIPLINARY HEARING
John Grogan Dismissal Juta (2004) p 114, concerning misconduct of damage to
property, remarks as follows;
“If an employee wilfully damages the property of the employer, dismissal is
almost invariably justified. The justification in such cases flows more from
the employee’s malicious intent than from the actual damage caused; where
intent is present, dismissal is warranted even if the employer suffered only
minor loss. "
In view of the fact that Grogan’s (supra) exposition of wilful damage to property is brief
and to the point, and because there are no reported cases in the Industrial Court and the
Industrial Court of Appeal dealing with the specific misconduct, it is necessary to refer to
criminal law text books. This is because these text books deal extensively with the
criminal offence of malicious damage to property.
5.5.
It is my holding, that save for the different standards of proof required, the
elements of the offence of malicious or wilful damage to property in
criminal and civil law (labour) are similar. CR SNYMAN CRIMINAL
LAW (3RD ed) Butterworths (1995) p 502, defines malicious injury to
property as follows;
“A person commits malicious injury to property
if he unlawfully and intentionally damages
(a)
Movable
or
immovable
property
belonging to another, or
(b)
His own insured property, intending to
claim the value of the property from the
insurer.”
According to the Concise Oxford English Dictionary (11th Ed) (2004), the words
wilful, malicious and intention are synonymous.
Snyman (supra) at p 505 remarks that it is irrelevant that the perpetrator had an improper
or ulterior motive for one to prove his intent. Damaging the property need not be an
offender’s principal aim. It suffices if he foresees the possibility that the damage may be
caused, but nonetheless proceeds with his actions.
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One needs to caution himself and apply the principle enunciated in Zephania Ngwenya v
Royal Swaziland Sugar Corporation (IC Case no: 262/2001); Christopher H.
Dlamini v Inter Africa Suppliers (SWD) LTD (IC Case no: 55/97), that, in holding a
disciplinary inquiry, an employer is not expected to observe the same standards that apply
in criminal proceeding in Courts of Law. Although the Respondent did not produce a
charge sheet, minutes and a written verdict, the proven facts are that the Applicant was
afforded an opportunity to defend himself against the accusation of willfully damaging
the truck’s engine. The disciplinary inquiry was held over a period of at least three
weeks. I find that the Applicant’s dismissal was procedurally fair.
77. KHULILE MASEKO
44/11 Manzini K. Arb
vs SHIELD DESIGNARTS (Pty) Ltd
SWMB
According to the case of France Dlamini v A to Zee (IC Case No. 86/2002), Nderi
Nduma JP (as he then was), held that where an employer fails to maintain such a record
(of the statutory employment form),; and there is a dispute as to the terms and conditions
of service of the employee, the onus then shifts to the employer to rebut the terms of
employment asserted by the employee. This case was cited with approval by P. Dunseith
JP
(as he then was) in the case of Mandla Mhlongo v Swaziland Meat Wholesalers:
Maxims (Pty) Ltd (IC Case No. 270/2002).
None of the Respondent’s witnesses, or any of the evidence adduced, in my opinion
sufficiently manages to gainsay the Applicant’s assertion that she was permanently
employed. The evidence of Mr. Sonnyboy Dlamini was only valuable in showing that in
some months Ms Khulile Maseko’s name was not reflected in the bank statements. Ms
Maseko had already said in her evidence in chief that she was at times paid in cash, and
Mr. Dlamini also buttressed this version when he said that Mr. Waligo had told him that
the amounts that were missing from the accounts were in fact Ms Maseko’s salary which
had been paid to her in cash.
Even though the Respondent’s representative had stated that the Applicant’s version
should not be believed because she could not produce her contract of employment, or a
copy thereof to substantiate an allegation of permanent employment. It is trite law that a
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contract between parties need not always be written. Our law does recognize the
existence of a verbal agreement, which is no less valid than the written one (see J.
Grogan, “Workplace Law”, 10th Edition, pg 16).
The law is clear that the classification of contracts of employment is a matter of
substance, and not merely of form. The deciding factor on the nature of an agreement
between parties is to be determined from the relationship between them. In this case it is
evident from the evidence of all the witnesses that Ms Maseko was employed by the
Respondent, and the Respondent has not been able to show that such employment was
based on a fixed-term agreement which had elapsed. The only logical conclusion that
may drawn, in view of the negative inference of the employers’ failure to produce a
record of Form 22 on the terms and conditions of service of the Applicant, is that Ms
Maseko was a permanent employee of the Respondent. This being the case she was fully
entitled to the protection afforded by Section 35 of the Employment Act.
78. BETHUSILE DLAMINI vs THABSILE NKAMBULE SWMB 170/10
FICTIONAL FULFILMENT; CONTRACT OF EMPLOYMENT
a. I am inclined to apply the doctrine of fictional fulfillment which applies,
where a party seeks to terminate the contract on the ground of his or her
own inability to perform. This position was pointed out in, Orda AG v
Nuclear Fuels Corporation of South Africa (Pty) Ltd 1994(4) SA
26(W) which case was cited with authority in Diamond Core
Resources(pty) ltd v River corporate finance(pty) ltd (642/2009)
[2009] ZANCHC 78 where the Head Note at 29G-H captures the
principle relating to the impossibility defence in these terms:
“Although the general rule was that, if performance was impossible
through no fault of the debtor (the Respondent in the present case)
the debtor's obligations under the contract were extinguished, whether this
would in fact be the effect would depend upon the nature of the contract,
the relationship between the parties, the circumstances of the case and the
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cause of the impossibility. (At 82J-83A.) If the causes of the impossibility
were in the contemplation of the parties, they were in general bound by
the contract; if, however, the causes were such that no human insight
could have foreseen them, then their obligations under the contract were
extinguished. (At 83B.)
b. I am therefore inclined to state that in the present matter the parties remain
bound by the contract. The resignation of the Applicant does not alter the
material terms that bind the parties. The Respondent remains indebted to
the Applicant for the amount paid to the stokvel, because this amount was
deducted from the Applicant’s wages and the Applicant remains entitled to
same on termination of the contract of employment.
79. Happy Matsebula vs Shoprite Checkers CMAC REF: SWMZ 613/10 (Mhlanga
R.S. Arb)
Peter Dunseith, in the case of Nkosinathi Ndzimandze and Another vs Ubombo
Sugar Ltd IC case no: 476/05 at page 21, stated that, “calculated dishonesty cuts at the
root of the Employment contract and destroys the employment relationship”.
80. BHEKI MAZIYA VS SWAZI AUTO SCRAP & GLASS – CMAC Reference No.
642/07: Mkhonta M.B. Arb
In Andre Van Niekerk: Unfair Dismissal, (2002) Siber Ink at page 39, Van Niekerk A.
argues that: “Dessertion is distinguishable from absence without leave in that, in the
former instance, the employer’s conduct indicates or gives the employer reason to believe
that the employee has no intention of returning to work. Unless employees who have
deserted or absconded are able to produce compelling reasons for their conduct would
normally justify dismissal”.
John Grogan: Workplace Law, 8th Edition, (2005), Juta & Co Ltd at page 52,
highlights that:
the main obligation of employees under the contract of employment is to place their
personal service at the disposal of their employer. The tender of service is a prerequisite
to the employee’s right to claim payment of wages”…… “failure to render service may
take many forms, ranging from desertion through absenteeism to unpunctuality”….. “that
whether absence from work justifies termination of the contract depends on the facts of
each case”. “that in Myers v Sieradzki it was held that the period of absence that
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constitutes a legitimate ground for summary dismissal depends on the facts of each case.
In Strachan v Prinsloo the Court ruled that the essential issue was whether or not the
employees conduct amounted to a breach of a vital term of the contract of employment,
whether express or implied”…. “that greater latitude must be allowed when the absence
is due to circumstances beyond the control of the employees”.
Grogan J goes on to argue that: “In dismissal proceedings, the onus is on the employees
to prove that they were in fact dismissed, and on the employer to show that the dismissal
was fair. Proof that a dismissal took place requires employees to prove on a balance of
probabilities that they were employees as defined at the time of the termination of the
employment relationship”…….“the primary significance of the onus is that when the
evidence on a point is evenly balanced or indecisive, the balance will tip against the party
upon whom the onus rests. However, subject to the overall onus, the burden of proving
particular points may shift to the party not bearing the onus, on the basis of the principle
that he who asserts must prove”. “If the employee fails to discharge the evidentiary
burden on a particular point, it may be that the employer will be held to have discharged
its overall onus”.
Having asserted that he was an employee who must be protected by Section 35 of the
Employment Act (1980) as amended, Applicant then submitted that his services were
unilaterally and verbally terminated by Respondent on the 30th May, 2007. Again as
argued by Grogan J,
“In dismissal proceedings, the onus is on the employees to prove that they
were in fact dismissed, and on the employer to show that the dismissal was
fair. Proof that a dismissal took place requires employees to prove on a
balance of probabilities that they were employees as defined at the time of
the termination of the employment relationship”.
The consequence of this omission by Applicant is that his version of events is subject to
being challenged. As was noted by Grogan J,
“The primary significance of the onus is that when the evidence on a point
is evenly balanced or indecisive, the balance will tip against the party
upon whom the onus rests.
The facts of this case are such that it is very hard to take Applicants version as coherent
and plausible. Thus as noted by Van Niekerk A,
“….the employer’s conduct indicates or gives the employer reason to believe
that the employee has no intention of returning to work. Unless employees
who have deserted or absconded are able to produce compelling reasons for
their conduct, their conduct would normally justify dismissal”
81. PETROS MAVIMBELA VS MASTER GARMENT –CMAC Ref: MNZ 028/08
Mhlanga R.S. – Arb
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Now turning to the issues to be decided herein, it was stated by the Judge President,
PR Dunseith in the very same case of Petros Mavimbela vs Master Garments,
Industrial Court Case No. 91/08 at page 4, in his ruling on the application for referral
to arbitration in terms of Section 85 (2) of the Industrial Relations Act 2000 (as
amended) that ‘it appears that there are only two material questions that arise for
decision- was the Applicant genuinely redundant, and was the properly consulted
before his retrenchment”.
In casu, the first question to be dealt with, is whether or not the Applicant’s
retrenchment was procedurally fair. In terms of our labour laws, a retrenchment or
dismissal based on operational requirements is governed by section 40 (2) of the
Employment Act 1980 (as amended), where an employer contemplates the
termination of the contracts of employment of five (5) or more employees for reasons
of redundancy. However, the Industrial Court in the following cases of: Thabo
Simelane vs JD Group (Swaziland), Industrial Court Case No. 166/02 and
Lonhlanhla Masuku vs KK Investments (Pty) Ltd – IC Case No. 341/03,
endorsed a legal requirement to the effect that an employer is legally obliged to notify
and or consult with an individual employee who is affected or likely to be affected by
a contemplated retrenchment. The Court in the aforemention case of Thabo Simelane
vs JD Group (Swaziland) (Pty) Ltd, Case No. 166/02, at pages 5 stated (with
regard to Section 40 (2) that; “That section however is couched in general terms.
There are issues that will necessarily require consultation with the individual
employee, which if not done, the employee will be prejudiced”. The Court in the other
case of Lonhlanhla Masuku v KK Investments (Pty) Ltd, Case No. 341/03 at page
11 said that; “The Court is also of the view that the Respondent had a duty to notify
the Applicant in advance that it was contemplating retrenchment and her job might
be affected…” The Court further stated; “There was a duty on the Respondent to
consult with the Applicant individually, particularly because it adopted an individual
approach to the selection of the Applicant for redundancy”.
In Johnson and Johnson (Pty) Ltd v Chemical Workers Industrial Union & Others
(1999) 20 ILJ 89 (LAC), the Labour Appeal Court of South Africa on the question of
retrenchment stated as follows: “The employer must initiate the consultation process
when it contemplates dismissal for operational reasons”. It must disclose the relevant
information to the other consulting party; it must allow the other consulting party an
opportunity during consultation to make representations about any matter on which they
are consulting; it must consider these representations and, if it does not agree with them,
it must give reasons”. The above quoted excerpt of the case was sourced from John
Grogan, Workplace Law, Eight Edition, at page 224.
I now turn to the second question namely; whether or not the Applicant was genuinely
redundant. Put differently, the issue to be determined is whether or not the Applicant’s
dismissal or retrenchment was substantively fair. In this regard I have to decide whether a
valid or bonafide and fair reason existed which justified the termination of the
Applicant’s job on the ground of redundancy. John Grogan Workplace Law, Eight
Edition at page 224 states: “The test for substantive fairness in dismissals for operational
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requirements remains whether the dismissals were operationally rational”. John Grogan
further states: “In Kotze v Rebel Liquor Discount Liquor Group (Pty) Ltd (2000) 21
ILJ 129 at page 33, the Labour Appeal Court stressed that its function is not secondguess the commercial and business efficacy of the employer’s ultimate decision, but to
pass judgment on whether such a decisionwas genuine and not merely a sham; A decision
to retrench could be exposed as a sham if, for example the dismissed employee is
immediately replaced with another in the same position”.
In the case of Zodwa Kingsley & 10 Others v Swaziland Industrial Development
Company Limited, Appeal Case No. 11/03 “The test thus prescribed is that the Court,
when considering the matter, must assess the evidence and make a finding whether the
employee infact was redundant or not”.
82. SIMANGA SHONGWE & 9 OTHERS VS B & W INSTRUMENTATION&
ELECTRICAL (Pty) Ltd & ANOTHER – CMAC Ref: No. STK 033/11: Dlamini
V.Z. Arb.
John Grogan, Workplace Law 8th ed Juta & Co. at page 44 remarks as follows
about fixed term contracts:
“The life of a contract may be determined either by stipulating a date for
termination, or by stipulating a particular event the occurrence of which will
terminate the contract, or with reference to completion of a particular task.
Where the parties have indicated that the contract will terminate on the
occurrence of a particular event or the completion of a particular task, the
onus rests on the employer to prove that the event has occurred or the task
was in fact completed. Unless otherwise agreed, a fixed term contract cannot
be terminated during its currency without good cause”.
In Buthelezi v Municipality Demarcation Board (2004) 25 ILJ 2317 (LAC) at 2320 para
9 the learned Jafta AJA made the following statement of law;
“There is no doubt that at common law a party to a fixed term contract has
no right to terminate such contract in the absence of a repudiation or a
material breach of the contract by the other party. In other words there is no
right to terminate such contract even on notice unless its terms provide for
such termination. The rationale for this is clear. When parties agree that
their contract will endure for a certain period as opposed to a contract for an
indefinite period, they bind themselves to honour and perform that
respective obligations in terms of that contract for the duration of the
contract and they plan, as they are entitled to in the light of their agreement,
their lives on the basis that the obligations of the contract will be performed
for the duration of that contract in the absence of a material breach of the
contract. Each party is entitled to expect that the other has carefully looked
into the future and has satisfied itself that it can meet its obligations for the
entire term in the absence of any material breach…under the common law
there is no right to terminate a fixed term contract of employment
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prematurely in the absence of a material breach of such contract by the other
party.
The statement by the learned Jafta AJA was embraced by the Judge President of the
Industrial Court of Swaziland in Boniface Dlamini v Swaziland United Bakeries (Pty)
Ltd (IC Case No. 200/02). In the Boniface Dlamini case, the Court made the following
remarks:
“The Labour Appeal Court in South Africa has held that an employer that
retrenches an employee on a fixed term contract before the contract’s expiry
date commits a breach of contract – see Buthelezi v Municipal Demarcation
Board (2004) 25 ILJ 2317 (LAC). This decision is clearly correct….”
83. DUMISA NDLANGAMANDLA V SHOPRITE CHECKERS – CMAC Ref:
SWMZ 223/09
In the case of Hollington v F. Hewthorn & Co. Ltd 1943 2 ALL ER 35 it was held
quite authoritatively that the earlier criminal convictions of a party are inadmissible for
purposes of subsequent civil proceedings. This decision is authority therefore that Mr.
Ndlangamandla’s disciplinary hearing was certainly not the “second stage” of the earlier
criminal case which is decided at the Swazi National Court. In fact, the mere mention of
that case at the disciplinary hearing gave rise to a suspicion that the chairperson was
influenced by the findings of that other forum, which thing is frowned upon by the law.
This is because this raises the suspicion that the chairperson may have been influenced in
his own findings by what was decided by the criminal court.
The Court in Graham Rudolph vs Mananga College and Another I.C. Case No.
94/2007 also emphasised the point that a chairperson should at all times be seen to befree
from bias (see also SHCAWU v Protea Hotel – Piggs Peak I.C. Case No. 195/1999.)
84. JAMES NDLOVU VS VUVULANE IRRIGATION FARMERS ASSOCIATION
– CMAC Ref: SIM 046/09: Dlamini V.Z. Arb.
It is my finding that the Applicant’s dismissal was substantively and procedurally unfair.
See: Thulie Nkambule v New Midway Supermarket t/a Intertech (I.C. Case No.
133/05); Themba Tsabedze v Tex Ray Swaziland (Pty) Ltd (I.C. Case No. 559/06;
Christopher H. Dlamini v Inter Africa Suppliers (Swd) Ltd (I.C. Case No. 55/97 and
Alpheus Thobela Dlamini v Dalcrue Agricultural Holdings (Pty) Ltd (I.C. Case No.
123/05).
85. NANILE DLAMINI
110/09:Dlamini V.Z.
VS
FIAGO
SUPERMARKER-CMAC
Ref:
STK
Where an employee complains that the conduct of an employer towards her was such
that, she could no longer be reasonably expected to continue in her employment and she
consequently leaves her employment and invokes Section 37 of the Employment Act 1980,
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and therefore alleges constructive dismissal, the onus to prove that she was so dismissed
rests with that employee.
See Timothy Mfanimpela Vilakazi v Anti-Corruption Commission & Others (I.C.
Case No. 232/02); Simon Nhlabatsi v VIP Protection Services (I.C. Case No. 84/02).
It was held in the Simon Hlabatsi case (SUPRA) that, whether an employee in the
circumstances of the case has proved that she was constructively dismissed, is a question
of fact to be determined by a judge.
One of the primary duties of an employer towards his employee is to provide her with
reasonably safe and healthy working conditions. See John Grogan, Workplace Law (8th
Ed).
86. BUHLE DLAMINI VS SHANDEZ INVESTMENTS-CMAC Ref: SWMZ
413/09: Dlamini V.Z.
The dismissal was not preceded by a disciplinary hearing. No charges were laid against
him. It was the Applicant’s own assumption that the Respondent may have suspected him
of conspiracy to commit fraud. The Respondent did not proffer that reason since she
failed to appear at the arbitration. Without a proper explanation, failure by the Applicant
to attend the disciplinary hearing at another distinct company (Spar) does note render
him guilty of dishonesty.
87.
88. S
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