THE INDUSTRIAL COURT OF SWAZILAND
the matter between;
M. ZWANE Applicant
BANK OF SWAZILAND Respondent
J.A. Hassanali President
Lukhele for Applicant
Dodds for Respondent
Mokgokong & Mr Matsebula Assessors.
on 22nd June, 1989)
this case the Applicant is claiming from the Central Bank, the
Respondent, the following on the ground that his services had been
unfairly terminated by forcing to retire -
that he be re-instated as a Purchasing officer and Supervisor on the
basis of the salary of
per month, which he was receiving earlier.
that he be paid salary from March, 1988 up to date of re-instatement
plus 121 wages increment
calculated from April, 1988.
that he be paid maximum compensation in terms of Sec. 13 of the
Industrial Relations Act.
that he be paid the aforesaid compensation together with the 12%
increment which became effective
in April 1988.
he be paid a sum of E148,000/= being his pension.
the conclusion of the trial, Mr Lukhele representing the
Applicant intimated that he was abandoning the claims in respect of
1,2, 4 and 5 aforesaid and restricting the claim to compensation
evidence in this matter depends entirely on the documentary and oral
evidence of the Applicant and Mr Martin Dlamini, the Deputy Governor
of the Bank respectively. Before I deal with the evidence, I must
comment that the Governor of the Bank and the Chief Manager who were
most suited to give evidence on the various matters at issue were not
called as witnesses. It certainly placed the Represe-ntative for the
Applicant and the Court at quite some disadvantage.
the evidence placed before Court I am called by Mr Lukhele to declare
the Applicant's retirement as one constituting constructive dismissal
as envisaged under Section 37 of the Employment Act 1980. On the
other hand Mr Dodds representing the Bank maintained that the
Applicant retired of his own accord.
now turn to the evidence in this case.
Central Bank recruited the Applicant on 3/5/79 as a Senior Store
Keeper on probation, on a monthly salary of E.411/= (Ex. M). His
appointment was not confirmed until 4/11/80, a period well over 18
months, which period in my view is unusually long for a probationer.
I wish to emphasise here that a probationer is not in the same
position as others in the service. He is in a state of suspense
attended with the uncertainty of an inchoate agreement. Therefore
is unduly unjust for for an employer to hold a probationer in such a
state of suspense and uncertainty for a lengthy period. In my view
the period of a probation should not extend to more than 6 months.
Anyway in 1985, the applicant was promoted and then posted as
Purchasing Offficer and Supervisor on a monthly salary of E.800/=. On
7/4/86 without any just cause, he was suddenly transferred as
Supervisor of the office cleaners, a post which according to the
Applicant was especially created for him. However he retained the
salary of E1219/= he received at the time of transfer. The Applicant
very rightly noted a protest to the Governor of the Central Bank
about the transfer on the ground that it was a demotion (Ex.B). His
protest however remained in abeyance until 4/3/87 when the Governor
agreed to talk to the Applicant. In the course of the discussion, the
Governor drew the applicant's attention to his general behaviour and
warned him of imminent transfer to another office where he would not
retain the grade of Supervisor (Ex.D). The Applicant was again
transfered on 4/3/87, this time as Head Groundsman. Not only were the
two posts to which the applicant was transfered very inferior but
also very humilating to him. Certainly it is not the way an employee
who had been in the service for nearly 8 years should have been
treated. However his work performance was not in issue since Mr
Dlamini the Deputy Governor himself admitted that his transfers were
not due to that fact. Though the Bank made mention of his general
behaviour relating to the non-signing the Attendant Register and not
conforming to office hours (Ex.F), those in my view do not constitute
a serious breach as to warrant his transfer. I wish to quote the
following remarks frorri his Employment History (Ex.M) which were
recorded immediately prior to his first trasnfer on 7/4/86
Annual Appraisal Meets Requirements Efficiency Bar Passed"
it seems to me that neither the Applicant's work performance nor his
general behavior had been the cause for his transfer. However
perusing, Exs B and G, I find that some form of personal enmity
existed between the Applicant and the Chief Manager. Therefore it is
reasonably possible that the Chief Manager who was responsible for
trasnfers may have exercised his right to transfer him, which action
in my view would be unjust and unfair - In this connection I wish to
quote the following case - Ceylon Mercantile Union Vs Millers Ltd.
(Reported in the Legal Framework of Industrial Relations in Ceylon by
S.R. de Silva Page 622) -
are a matter of internal Administration and as such, fall within
the purview of the employer's prerogative. However, one would
generally expect that this prerogative would be exercised in a just
and fair manner and not according to the whims and fancies of
Dodds has stated that although the applicant was transfered to those
posts, he did not suffer any reduction in salary and grade. Therefore
he argued that the transfers did not amount to demotion. I do not
subscribe to this. In my view status is as equally important as
salary and grade, and there is no doubt that the applicant suffered a
drastic change in his status as a result of his transfers to posts
which were fundamentally inferior, and also suffered job
satisfaction. This not only amounts to a demotion but also
constitutes a fundamental breach of contract. I refer to the
following case -
Vs S & W Baldwin 19771 RLR 342 (Reported Harvey Vol 1 Page
take away certain duties may constitute a fundamental breach of
contract where the effect is to lessen job satisfaction and lower
now turn to the question whether the Applicant retired from the Bank
of his own accord or was he forced to do so as a result of the
circumstances created by the Bank.
Applicant is 51 years of age and was still below retiring age at the
time of his retirement. He maintained that it was the Bank which
initiated his retirement and as a result he was referred to Dr. O.M.
Dlamini by the Chief Manager. Mr Dlamini, the Deputy Governor, on the
other hand submitted that it was the applicant who of his own accord
decided to retire. It appears to me that the question of retirement
of the Applicant arose at a discussion between the applicant and the
Governor. In this connection I wish to refer to the last paragraph of
the Minutes from the Governor to the Chief Manager (Ex. D) which
reads as follows -
that connection I suggested that he might usefully consider his
health was such as to justify a request for early retirement on
strikes me from the above that the suggestion of applicant's
retirement may have originated from the Governor himself.
Unfortunately neither the Governor nor the Chief Manager was called
to clarify as to how and under what circumstances the question of
retirement arose. In the circumstances I have no other alternative
but to hold that it was the Respondent Bank that initiated the
applicant's retirement and the applicant accepted his retirement
mainly because of the following -
his transfer to posts which were very much inferior to the post he
the warning by the Governor that he might be transfered to another
office and that he should not
expect to retain the grade of Supervisor (Ex.0). This in my view
amounts to a threat.
taking the above into consideration, I have come to the conclusion
that the applicant was compelled to retire as a result of the above
circumstances created by the Respondent Bank.
I find that the applicant has been unfairly terminated as envisaged
under Sec. 37 of the Employment Act.
carefully considered the evidence in this case in entirety, I am of
the view that the applicant should be awarded the maximum
the circumstances I order the Respondent Bank to pay the Applicant a
sum of E7314/= as 6 months compensation for his unfair termination.
Assessors agree with my decision.
enter this Order as an Award of this Court.