the High Court of Swaziland
Appeal Case No. 7/93
the matter between:
Building Society Appellant
APPELLANT Mr. Flynn
RESPONDENT Mr. Kennedy
appellant is an employer and the respondent a union. In July of 1991,
differences arose between them concerning one of the employer's
staff, who was also an official in the union and had taken time off
for several days to deal with union business.
2nd April 1992, the employer under section 50 (1) of the Industrial
Relations Act 1980 reported a dispute to the Labour Commissioner in
respect of the matter.
on 6th April 1992, the union itself wrote to the Commissioner
reporting a dispute. This clearly included the issues that the
employer had already raised, which related to the employee's absence
on union business for several days from 28th July to 9th August.
went further, however. It referred to a subsequent occasion in
November on which the union had requested
time off, on union business, for the employee, and to a warning
letter which the employer had written to the employee on 2nd January
1992, dealing (inter alia) with his absence on such business on that
later occasion, after the employer had refused to agree to such
absence. As far as that was concerned, the union in its report of 6th
April sought the unconditional withdrawal of the warning letter.
29th April 1992, the Commissioner certified an unresolved dispute
under section 58(1) of the Act.
paragraph 3, he described the issues in dispute as being
the employee was entitled to be paid for the period when he was
absent on union business "in contravention of article 4.5 "
of a recognition agreement that had been made between the employer
and the union and
his absence for the period from 26th July to 9th August in 1991 was
paragraph 4, he referred to the dispute as having been reported to
him on 2nd April 1992, and certified it as an unresolved dispute.
then set out in paragraph 5 the reasons why he considered that no
useful purpose would be serve by continuing to conciliate. In doing
so, he recited the course of events between the parties, referring
eventually to an offer of compromise by the employer as to the paying
of the employee, the insistence by the union that this settlement be
linked to the withdrawal of the warning letter, and the rejection by
the employer of the linking of those two issues and its withdrawal of
its offer. In the last subparagraph of paragraph 5, the Commissioner
noted that the parties agreed to disagree, and went on to say that as
provided in section 54(4) of the Act "the dispute" was
declared unresolved, as no useful purpose would be served by
continuing to conciliate.
employer on the following day applied to the Industrial Court for the
determination of an unresolved dispute. In paragraph 7 of its
application, it identified the dispute as relating to the absence of
the employee from work from 26th July to 9th August. In the previous
paragraph, it had asserted that the union's own report of 6th April
was not a report as such, but rather a reply to its report.
paragraph 8, it referred to its offer of compromise, and went on to
say that the union, while willing to accept the compromise, had "made
a new and unreasonable and unacceptable demand on the applicant which
was unacceptable to the applicant and which had resulted in this
matter being an unresolved dispute."
its reply, the union denied that the employer had correctly described
the "disputes" between the parties. It asserted in
paragraph 2 that its own report was not a merely a reply (i.e. to the
employer's original report to the Commissioner) but an actual report
of a dispute which raised "an entirely fresh issue", namely
the warning letter. In paragraph 3, it identified the "disputes!1
as being (to summarise them):-
differences between the parties as to the employee's absence from
26th July to 9th August; and
issuing of the warning letter on 2nd January.
appears from the record in this appeal that the parties agreed that
the matter could be decided on the papers in the Industrial Court,
that no point was taken as to whether the reference to that Court was
within time, and that there was preliminary argument before and a
ruling by the Industrial Court as to the matters in dispute in the
application before it.
preliminary question, in substance, came down to whether or not the
Industrial Court was properly seised of the issue over the
letter. The Industrial Court ruled that it was, and that the two
matters in dispute thus related, in effect, to the employee's absence
from 26th July to 9th August and the sending of the warning letter on
Court went on to order, in determining the application on its merits,
that the employer was to pay the employee for the time that he was
absent in July and August, and that it was to withdraw the warning
employer now appeals against the Industrial Court's judgment. It does
so, essentially, on three grounds, which can conveniently be set out
(and dealt with) in the following sequence, namely:
Industrial Court erred on law in determining that the warning letter
was in issue in the application before it.
erred in lav/ by exceeding its jurisdiction, in ordering the
appellant to withdraw it.
erred in law in ordering the employer to pay the employee during his
absence from duty from 26th July to 9th August.
is convenient, too, to deal with the first two grounds of appeal
its eventual judgment, having first referred to its preliminary
ruling on the matters in dispute, the court said that the
determination of the issue raised by the respondent in its reply had
been adjourned and that the parties had been invited to address the
court before it gave its decision. It also stated that the parties
had done so. It appears to me from the record that these things were
dealt with the warning letter very shortly, in the last paragraph of
its judgment, saying:
is no dispute that Annexure D 10" (i.e. the letter) "is in
breach of section 70 of the ...Act. The remedy for the breach lies in
section 76 .... We do not think that a fine would be the appropriate
remedy in this instance. The appropriate remedy is directing the
applicant to withdraw....the letter...
accordingly order the applicant to withdraw Annexure D10."
the hearing of this appeal, it was common ground that the first
sentence of that last paragraph was incorrect, inasmuch as the
appellant had argued in the Industrial Court that the warning letter
was not in breach of section 70 of the Act.
Flynn, for the appellant, submitted that the scheme of the Act, in
relation to the settlement of a dispute under Part VII, is to require
the parties to submit first to conciliation and that, as far as the
present matter is concerned, the Industrial Court could not entertain
the matter unless the Labour Commissioner, having attempted
conciliation, had certified under section 58 (1) that the dispute was
unresolved. It was the dispute as so certified that fell to be
determined by the Industrial Court. In this regard, he cited
Swaziland Fruit Canners Pty Limited v. Vilakati and Dlamini
(Industrial Court Appeal 2/87) and Ubombo Ranches v. Pan Attendants
(Industrial Court Appeal 6/90) both being decisions of this court.
Commissioner's certificate, Mr. Flynn contended, patently did not
include the warning letter in its definition of the dispute. The
respondent had in effect acknowledged in its reply that it was a
separate, subsequent - issue. Moreover he argued, the issue of the
warning letter did not fall within the definition "dispute"
in section 2 of the Act and the Industrial Court had no power, at
least under Part VII, to under its withdrawal. Although the
Industrial Court had invoked section 76, in Part VIII of the Act, it
had done so incorrectly. The respondent had never
an application under that section; the appellant had never had the
opportunity to respond to it.
responding on behalf of the union, Mr. Kennedy said that as a matter
of fact the two issues were clearly related. They had both been in
issue, together, before the employer had reported a dispute under
submitted that although the Act requires that disputes are in the
first instance to be referred to the Commissioner for conciliation,
and that he is to certify an unresolved dispute before it is taken to
the Industrial Court, that does not mean that the Labour Commissioner
has the final say. I understood him to be saying, in that respect,
that although it was the function (and duty) of the Labour
Commissioner to certify an unresolved dispute, his definition of the
scope of the dispute was not final. It was open to review in the
Kennedy also submitted that the issue of the warning letter clearly
fell within the meaning of a "dispute" in section 2 of the
Act, and that the Industrial Court had powers under sections 7 and 13
to order its withdrawal.
a matter of fact, by the time the employer came to report a dispute
to the Commissioner, the parties were clearly at odds both over the
absence of the employee from 26th July to 9th August and as to the
issue of the subsequent warning letter of 2nd January. The two
matters were in fact closely related in that there had been an issue,
on the first matter, as to whether the employee's absence was
reasonable, and the warning letter had to do with his absence, for
the same purpose, on a subsequent occasion. More broadly, both
matters had to do (inter alia) with the absence of an employee on
union business under section 75.
the way in which he drew his certificate, on a strictly formal
interpretation of the document, the Commissioner did limit it to the
question of the employee's absence from 26th
to 9th August. He did refer specifically to, and only to, the report
by the employer on 2nd April. He also referred to the certificate
however; to the issue of the warning letter; and I think it is
evident from the certificate that issue must have been under
consideration by him when seeking to conciliate.
own view is that by the time the employer came to report a dispute to
the Commissioner, the true nature of the dispute included the warning
letter and, that in reporting the dispute, the employer did not fully
describe it. I am also of the view that in defining the dispute
formally in his certificate, the Commissioner did not identify it
fully. I do not regard the reference in paragraph 2.1 of the union's
reply, to "an entirely fresh issue", properly construed, as
meaning that the two matters were unrelated, and I do not attach
significance to the subsequent references in that reply to the words
Industrial Court, in my judgment, correctly identified the matters in
issue. It appears from the record that the employer was given
opportunity both to make submissions before it as to the extent of
the dispute and, after its ruling, as to the merits of the issues (as
identified by the Industrial Court).
cannot see that any prejudice has been occasioned to the employer or
that the scheme of the Act has been denied. The point taken by the
employer is a technical one. In substance, I consider that the
certificate encompasses the whole of the dispute as defined by the
am also of the view that the issue over the warning letter is a
dispute within the meaning of paragraphs (e) and (f) of that term as
defined in section 2, and that the Industrial Court in dealing with
it, had power under section 13(1) to order the withdrawal of the
agree with Mr. Flynn that in this case the Industrial Court did not
have properly before it an application, as such, under section 76.
is apparent from the record that the Industrial Court, in dealing
with the letter, wrongly assumed that there was no dispute as to
whether the letter contravened section 70, and that it wrongly dealt
with the matter under section 76.
is also clear that the only portion of the letter in issue was the
very first of the three complaints in it, namely that the employee
attended a union meeting without the authority and approval of the
it is clear that, within the scope of the application under Part VII
for the determination by the Court of an unresolved dispute, the
employer was fully heard by the Court on the issue of the warning
is apparent from the record before this court that the nature of the
dispute as to the events of 26th July - 9th August 1993 has been
trimmed considerably in the course of the legal process. The
surviving issue, in this appeal, is simply whether the Industrial
Court erred in law in ordering the employer to pay its employee's
salary during his absence at that time. It had at different times
earlier been a fuller issue and, if I may say so, as it appears from
the record, at times a slightly confused one.
C 2 of the employer's report of the dispute, and paragraph 7.2 of its
application, do not to my mind make sense. The words "in
contravention of article 4.5 of the recognition agreement" in
the third paragraph of the Commissioner's certificate are in my view
on the one hand ambiguous and on the other not apposite, and. it
appears to me that this may stem from the way in which the employer
sought to identify the issues. These things might also have had a
bearing on the way in which the Industrial Court eventually came to
approach the matter.
the end, however, the surviving issue before that Court was simply
whether or not, if the employee was absent from work on union
business without the prior consent of the employer, the latter was in
law obliged to pay him.
employer's case is that although, under section 75(4)(b) of the Act,
an employer is obliged to allow staff time off on union business, it
has a discretion whether or not to pay them during such absences.
Under the recognition agreement that it subsequently made with the
union, the employer here bound itself to pay staff who were absent on
such business, but only if its prior consent had been obtained. In
this case it was not. Accordingly the employer had no obligation to
pay the employee for his absence in July and August on union
relevant paragraph in the agreement is 4.5. It provides that no union
representative shall "be victimised or suffer reduction in pay"
while dealing with union business, "so long as he has obtained
the prior consent of his immediate superior" or "the union
has obtained the prior consent of the managing director/general
manager" of the undertaking.
reaching its decision, the Industrial Court noted that the employer
conceded that it was bound to give union officials time off on union
business, and that they were not obliged to obtain its permission to
be absent on such business. With respect, although it is not the
issue as such here, that appears to me to be correct. Staff who are
union officials are, under section 75(4)(b), entitled by law to
reasonable time off for such purposes. What is reasonable is a matter
of objective fact. I agree with the Industrial Court that there is no
implication, in that provision, that the employer must consent to the
issue here, however, is whether the employer, not having given prior
consent to the employee's absence, was bound to pay him.
page 2 of its judgment, the Industrial Court said:
for ourselves and on the strength of the submissions made by the
parties and the documents presented before the court, it is clear
that the parties assumed that a responsible attitude would prevail
between them and that a spirit of give and take would exist. The
parties assumed it would appear that since section 75(4) obliged the
employer to give his consent, the employer would abide. Section
75(4)(c) made it mandatory that the employer would allow him off."
appears to me to be a somewhat uneasy passage. The first sentence is
strictly irrelevant, as far as the legal point now in issue is
concerned. I will return to the legal significance of section
75(4)(b) in a moment.
the next paragraph of the judgment the Court, having found on the
evidence that the executive members of the union were involved in its
business affairs during the period in question, goes on to hold that
it was reasonable for the employee to be absent from duty (on such
business), and concludes that he was entitled to be paid during his
those portions of the judgment, and from the two paragraphs in it
that follow the last one that I have referred to, it is evident that
in so far as the Industrial Court has demonstrated its reasons for
its conclusions, it has taken the view that because section 75(4)(b)
requires an employer to allow union officials reasonable time off, it
was unnecessary to seek the employer's prior consent in order to
sustain a claim of right to be paid.
this appeal, the union adopts the same reasoning as the Industrial
75(4)(b) does not, however, say that an employer must consent to an
employee's absence on union business.
it says is that an employee representing a union is entitled as of
right to reasonable time off to deal with such business. It is
unnecessary to imply from this that the employer is to be deemed to
have consented. Whether or not he has consented is irrelevant. The
legislative has ordained it, i.e. the right to have time off.
has also stipulated, however, that whether or not an employee is to
be paid for this facility is a matter of discretion, at least as far
as the requirements of the law are concerned.
the present case the employer has, by a subsequent agreement,
committed itself contractually to one way in which it will exercise
that discretion. If prior consent is obtained, it will pay the
employee's salary. In these circumstances, it is bound contractually
to the union to do so. But if prior consent is not obtained, then it
is entirely a matter within its discretion. It is not bound to do so.
the result, on this last ground of appeal, I am of the view that the
Industrial Court erred in law in holding that section 75(4)(b)
required or deemed the employer to consent to the absence of the
employee on union business and, because of that, and because the
absence was reasonable, that the employer was therefore bound to pay
his salary during his absence.
I make the following orders: The judgment of the Industrial Court, in
so far as it orders the employer to pay the employee's wages for the
period from 26th July to 9th August 1991, and in so far as it orders
the employer to withdraw that part of its letter of 2nd January 1992
with the second and third complaints there set out, is set aside, but
is otherwise affirmed.
HULL CHIEF JUSTICE
further submissions, the respondent was ordered to pay seventy-five
percent (75%) of the appellant's costs on the appeal, as taxed if not