THE HIGH COURT OF SWAZILAND
the matter of
SWAZILAND (PTY) LIMITED Appellant
SIBANDZE & 7 OTHERS Respondent
APPELLANT : Mr.
THE RESPONDENT : No
is an appeal, on a point of law, against a decision of the Industrial
respondents and others were, formerly, employees of the appellant
is not in dispute that the company, because of financial problems,
had grounds for making them redundant; that it did so, terminating
their services on 28th March 1991; and that it paid them all terminal
benefits, including notice pay.
is not in dispute either that on 20th March 1991 the company had
given notice in writing to the Labour Commissioner of the
notice itself was dated 20th March 1991, but it began with the words
"On behalf of 'Lamboard Swaziland ....... I
like to give you a month notice, with effect from today (17.03.91)
notice was intended to comply with section 40(2) of the Employment
Act 1980. The subsection requires an employer who contemplates the
termination of the contracts of employment of five or more employees
for reasons of redundancy to give not less than one month's notice in
writing of that to the Labour Commissioner. The appellant did not
give the Commissioner that period of notice in this case.
Industrial Court ruled that, in those circumstances, the terminations
could not be said to have been made on grounds of redundancy.
reasoning is to be found in the following passage, in the penultimate
paragraph on page 4 of the judgment:
the one month notice given as required by law. The answer is in the
negative. What was the effect of such breach. The notice was not a
notice as envisaged by the law. It was of no consequence.
resulting termination on the 28th March 1991 were not a redundancy
but a mere termination of the contract of employment. Since the
termination does not comply with section 40(2) it is not a redundancy
and is not served by section 36(j) of the Employment Act. The
resulting termination was therefore unfair".
respect, that is wrong.
36 specifies circumstances in which it is fair to terminate a
contract of employment. These include redundancies. Whether or not an
employer does terminate a
on grounds of redundancy is in my view a question of fact. Here it is
not in dispute that, as a matter of fact, that is what happened.
40 does not introduce a legal condition precedent for a termination
for redundancy. What it does is to impose an obligation on an
employer who contemplates redundancies to notify the Labour
Commissioner and any organisation with which the employer is a party
to a collective agreement (but not the employees themselves) of the
likely redundancies. It is a separate, statutory obligation that is
imposed on the employer, to give information about likely
redundancies to the Commissioner and the organisation (if any).
organisations to which section 40 refers are industry unions, staff
associations and employers associations as defined in section 2 of
the Industrial Relations Act, 1980. The Commissioner has wide-ranging
functions under both Acts. These include functions under section 40
of the Employment Act 1980 in respect of allegations of unfair
terminations of employment. One of the purposes of section 40 is, I
think, certainly to furnish the Commissioner and an employee's union
or association with facts that may relate to complaints to which
section 41 refers but it does not follow at all that there cannot be
a termination on grounds of redundancy if due notice has not been
given under section 40.
is not in my judgment the effect of the section.
sanction for failing to give such notice is found in section 44 (as
Mr. Millin has pointed out). It is an offence under the Act not to
give notice. In an appropriate case, an employer can be prosecuted.
It is of some significance, I think, that what section 44 says, in
paragraph (c), in respect of such breaches, is that an employer who
"terminates the contracts of employment of five
more of his employees for reasons of redundancy without giving prior
n6tice .... as required by section 40" commits an offence. If
the view taken by the Industrial Court were correct, section 44(c)
should properly have been expressed in terms of an "attempt"
to terminate for reasons of redundancy.
fact that due notice is not given under section 40 does not prevent
an employee from pursuing a complaint. In this case the respondents
were able to do so. In some circumstances it may well be that a
failure by an employer to give proper notice of proposed redundancies
to the Commissioner and to a union is - as a matter of fact - an
indication that the grounds of redundancy are not genuine. But that
is not the case at all here. Employers contemplating redundancies do
have a duty (a separate duty) to comply with section 40, but in this
case the point held against the appellant was in my view, and with
due respect, a very technical one.
misconstrued the legal effect of section 40, the Industrial Court
then erred further in law by holding that the termination of the
respondent's contracts by the company was unfair and proceeded to
award them compensation on that basis. But the terminations were not
unfair. They were fair, by virtue of section 36.
appeal is for these reasons allowed. The decision of the Industrial
Court is accordingly set aside, with costs to the appellant.