IN
THE HIGH COURT OF SWAZILAND
Civ.
Case No. 901/94
In
the matter between:
PETROS
V. MBHAMALI Plaintiff
vs
MERIDIEN
BANK SWAZILAND LIMITED Defendant
CORAM: S.W.
Sapire A.J.
FOR
PLAINTIFF Mr. Shabangu
FOR
DEFENDANT Mr. L. Khumalo
Judgment
(3/11/95)
The
plaintiff Mr. Petros V. Mbhamali was an employee of the defendant.
On
or about 23rd June 1987 the plaintiff, the Bank of Credit and
Commerce International (BCCI) entered into an agreement in terms of
which the plaintiff was employed by that bank as a driver.
In
1991 after BCCI had collapsed, the plaintiff and the defendant
entered into an agreement in terms of which the plaintiff which had
taken over BCCI's banking business employed the defendant in the sane
capacity and also assumed some of the obligations to the plaintiff
owed by BCCI. The only agreement between the parties proved in
evidence was in writing. It is exhibit "A" and consists of
a letter of appointment written by the defendant to the plaintiff and
which was countersigned by the plaintiff as accepting the offer and
agreeing to the terms and conditions contained therein.
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Attached
to the letter and referred to therein were general conditions of
service which were Incorporated in the contract. For the purposes of
this case, paragraph 2 of such conditions is of importance. It is
therein provided that either party can terminate the employment by
giving 24 hours notice during the probationary period, and three
months notice or payment of three months salary in lieu of notice in
the case of permanent staff.
The
plaintiff attained this status of a permanent staff member but after
the plaintiff had been in the defendant's employment for some time,
he was found by the plaintiff to be redundant. The defendant
accordingly gave notice of termination and also informed the Labour
Department of the intended termination of plaintiff's contract on the
grounds of redundancy. After negotiation an agreement was reached
between the Union of which the plaintiff is a member and the
defendant as to the terms of the severance for redundancy. These
terms it is common cause were complied with and the plaintiff left
the defendant's employ.
The
plaintiff's present action is based on the contention that the
dismissal was a breach of contract and arising from such breach the
plaintiff is entitled to damages. The measure of damages is an amount
equivalent to what the plaintiff would have received as salary during
the rest of his career with the defendant had he worked until
pensionable age.
Such
contention predicates that the written contract was for a fixed
period terminating on plaintiff reaching pensionable age. The
defendant's contention however is that the contract was terminable on
notice as provided for in paragraph 2 of the general conditions.
The
plaintiff's contentions demonstrates a failure to distinguish between
an illegal dismissal and an unfair dismissal. The contract we have
seen provides for notice terminating the employment and there can be
no question that the defendant acted in accordance therewith.
It
is argued however on behalf of the plaintiff that because his
employment was said to be permanent and pensionable, the notice
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provision
of the general conditions were not applicable and over ridden. In
support of this proposition counsel for the plaintiff quoted the case
of MC CLAREN VS NORTHERN IRELAND GENERAL SERVICES BOARD, 1957 II A E
129. This however was a decision on the special facts of that case
turning on the effects of what was called "Clause 12 of the
September Conditions" which are presently irrelevant.
It
was made clear by the Judges that but for such conditions employment,
even reference to the employment being "permanent and
pensionable" the provisions making the contract terminable on
notice remained effective. The case cited is if anything authority
contrary to the plaintiff's contentions.
The
plaintiff also argued that the provisions of the Employment Act were
in conflict with an overrode the provisions of the agreement relating
to termination by notice. Counsel for the plaintiff argued that by
reason of the Employment Act, the employer was only entitled to
terminate on one of the grounds provided for in the Act. A proper
reading of the Act makes this contention unturnable. The Act does not
purport to affect the terms of contracts entered into by an employer
and an employee but deals with situations of unfair dismissal in the
context of the existing contracts.
The
plaintiff has not proved to breach of the agreement entitling him to
damages and his case must fail on this ground alone. The defendant
relied on a document signed by the plaintiff in terms of which he
accepted the settlement effected by his union in full settlement of
all his claims.
In
view of my finding that there was no breach, it becomes unnecessary
to decide whether such agreement was a settlement of the claim. If
called upon to do so however, I would have found for the defendant on
this issue. In the result the plaintiff's claim will be dismissed
with costs.
S.W.
SAPIRE
ACTING
JUDGE
