Groening v Standard Bank of Swaziland (01/11) [2011] SZICA 7 (23 March 2011);

IN THE INDUSTRIAL COURT OF APPEAL OF SWAZILAND

 

HELD AT MBABANE                           APPEAL CASE NO. 2/11

 

 

LYNETTE FELICITY GROENING                         Appellant     

 

And

 

STANDARD BANK OF SWAZILAND LTD            1st Respondent

TINEYI MAWOCHA                                          2nd Respondent

 

 

CORAM: RAMODIBEDI J.P.

              MASUKU A.J.A.

              MAMBA  A.J.A.

 

Mr. Attorney S.A. Nkosi for the Appellant

Mr. Attorney Z.D. Jele for the Respondents

 

Date heard: 11 March, 2011

Date delivered: 23 March, 2011

 

 

 

J U D G M E N T

                                                                                                

LABOUR LAW – Application for reinstatement.  Provisions of Rule 14 (6) (b) of the Industrial Court Rules – meaning of reasonable foresight of a dispute of fact arising.  Matter remitted to the Courta quo to deal with disputes of fact.

 

MASUKU A.J.A.

 

 [1]   A judgment delivered by the Industrial Court of Swaziland, dated 22 October, 2010, appears to be like a double-edged sword, cutting both ways. It has simultaneously wrought both joy and sorrow to both protagonists. To the appellant, it has delivered favourable findings without correspondingly favourable orders. For the respondents, the judgment has delivered unfavourable and adverse findings without any correspondingly unfavourable orders.

 

[2]    As a result of the discordant emotions it evokes on both parties, there is, serving before this Court, an appeal by the appellant and a cross-appeal by the respondents. I shall henceforth refer to the Industrial Court as “the Court a quo”.

 

[3]    The circumstances giving rise to the present lis are fairly straightforward and are not the subject of much contention, if at all. The appellant is a Swazi female adult, who was employed by the 1st respondent’s predecessor, Union Bank of Swaziland in 1992 as the Manager’s Clerk. Following mergers, acquisitions and take-overs, the 1st respondent was formed and Union Bank as such ceased to exist. The appellant was retained as an employee by the 1st respondent.

 

[4]    It would appear that the appellant rose through the ranks and as at August, 2004, she was tasked with establishing a new division within the 1st respondent’s Credit Division. She successfully established this new department. It would appear that certain misunderstandings between the appellant and some of the 1st respondent’s employees and managers developed in the course of their interaction at work. Details of these misunderstandings are not relevant for purposes of this judgment.

 

[5]    These eventually culminated in a letter addressed by the appellant to the 2nd respondent, the 1st respondent’s managing director and dated 28 November, 2007. The appellant complained bitterly about harassment, intimidation and threats allegedly offered to her by some of her colleagues, who had allegedly formed a “bash Lyenette club”. She also complained that she had not received support and protection from the office of the 2nd respondent, whom she claimed also threatened to dismiss her from employment.

 

[6]    She, in terms of the letter under reference therefore laid a grievance regarding what she termed “terrorism” against her. The 2nd respondent, in a nutshell, did not accept the appellant’s contentions, reasoning that though he did tell her that no one was indispensible, he felt slighted by her accusations in view of all the efforts he had personally taken to try and retain the appellant’s services with the 1st respondent.

 

[7]    The situation turned worse for the appellant. On 26 March, 2008, she was served with a notice of disciplinary charges sought to be preferred against her by her employer. She was accused of having been involved in two separate acts of dishonesty and abuse of office, and one of misrepresentation. These allegations were in relation to certain loans for immovable property she had secured from her employer. The long and short of it is that the appellant was, in a disciplinary hearing presided over by Attorney Muzi Simelane, found guilty on all counts and she was, in accordance with the recommendation of the chairperson,  dismissed from employment.

 

[8]    The appellant, as she was entitled to, appealed against this decision. An appeal hearing was conducted by Ms. Sharon Moodley, from Johannesburg and who is based in the Industrial Relations department of the Standard Bank Group. Ms. Moodley held that the appellant had been wrongly found guilty and her appeal therefor succeeded. Ms. Moodley’s remedy is important and I for that reason quote it in extenso below:

“The Applicant is to be reinstated with effect from 04 September, 2008. Alternatively, the Bank and the Applicant may consult on a mutually agreed termination if the Applicant is of the view that the employment relationship is beyond repair. Should the Applicant wish to pursue the alternative, it is suggested that she contact Business by 02 September, 2008 to initiate the consultation process on a mutually agreed termination.”

 

[9]    The Bank, on 3 September, 2008, wrote a letter to the appellant stating that it had noted the result of her appeal but would not comment on it at that juncture. It expressed that it wished to engage the appellant with a view to have a mutually acceptable separation as the working relationship had been severely damaged and irretrievably broken. It would appear that the appellant did not return to work but was, for a period of about five months, paid her salary by the 1st respondent, as negotiations were in progress. It was specifically stated in that letter that in the interregnum, the conditions of her dismissal shall apply.

 

[10]  On 5 February, 2009, after some meetings held inter partes, the 1st respondent dropped a bombshell! The appellant was served with a letter under the hand of the 2nd respondent, stating that (i) the Bank did not accept the findings of the appeal and that it was not bound thereby; (ii) the relationship of trust between her and the Bank had been seriously compromised such that continued employment was no longer possible; and (iii) the Bank had decided to uphold the decision to terminate her services based on the findings of the initial disciplinary enquiry.

 

[11]  The appellant, obviously dejected, then approached the Court a quo seeking the following relief:

 

  1. Confirming the ruling of the Appeal Chairperson Sharon Moodley handed down on the 29th August 2008 finding the Applicant not guilty of the charges laid against her by the 1stRespondent.
  2. Declaring the decision of the 1st and 2nd Respondents dismissing the Applicant from employment as conveyed and contained in a letter written to Applicant by the 2nd Respondent dated  the 5th February, 2009 as unlawful and of no force and effect;
  3. Setting aside the decision of the 1st and 2nd Respondents dismissing the Applicant from employment as conveyed in a letter written to Applicant by the 2nd Respondent dated the 5thFebruary, 2009;
  4. Confirming Applicant’s reinstatement to employment as at the 4th September 2008 in terms of the Appeal ruling of the said Ms. Sharon Moodley, and/or by operation of Law;
  5. Ordering and compelling the 1st Respondent to pay the Applicant’s salary as backdated to the 5th February, 2009 with all the requisite increments and bonuses and all allowances;
  6. Costs of suit.

 

[12]  This application was vigorously opposed by the respondents, who not only pleaded over on the merits, but also raised certain points of law in limine. These included the contention that there were disputes of fact afflicting the application and which could not be resolved in application proceedings and the plea of lis alibi pendens. It is not clear from the judgment of the Judge a quo whether or not these issues were dealt with and decided on by the Court a quo in a separate Ruling.

 

[13]  A reading of the judgment of the Court a quo would suggest that the Court, with the concurrence of both Counsel, took the view that the issues before it did not involve the determination of issues raising any dispute of fact but a question of law, thereby obviating the need to call viva voce evidence. It would appear that the Court a quo did not take heed of that attack by Mr. Jele for the respondents relating to the disputes of fact and which had been pertinently raised in the papers.

 

[14]  Having listened to very lengthy submissions from Counsel on both sides, and which submissions were inexplicably transcribed and availed to this Court as part of the record of proceedings, the Court a quo dismissed the application before it in its entirety and found that in all the circumstances, the appellant was not entitled to the relief she sought and that she had an alternative remedy under Part VIII of the Industrial Relations Act, 2000, as amended. It further held that it would be insensitive and inhumane of it to mulct the appellant, who was the losing party before it, with costs for the reason that her payout had been used to settle outstanding claims her erstwhile employer had against her.

 

[15]  At page 15 of its judgment, the Court a quo, with the concurrence of its assessors, held that there was no pre-dismissal hearing before the applicant’s services were terminated on 5 February, 2009. The Court therefore came to what it termed a prima facie view that the appellant’s dismissal was “therefore both substantively and procedurally unfair.”

 

        The Appeal

 

[16]  It would be fair to state that in essence, Mr. Nkosi’s major complaint with the judgment of the Court a quo was that although the Court had found that his client had been dismissed in circumstances that were in that Court’s view unlawful, procedurally and substantively unfair, it failed to grant her effective redress from the panoply she had prayed for. In his view, the Court a quo had to reinstate the appellant to the position in which she was at the time when she was dismissed.

 

[17]  Mr. Nkosi submitted further that the conduct of the respondents was, to use his own words, insidious and that this Court would be setting a bad precedent if it did not intervene on the appellant’s behalf and order her reinstatement to the position in which she was immediately before the sudden termination of her employment and without a hearing, as the Court a quo had held.

 

[18]  He particularly harped upon the fact that the appellant had served the 1st respondent for a staggering period of 28 years, without any previous blemish, only to be dismissed on the stroke of a pen and in the absence of a hearing. He referred the Court, in support of his strong call for reinstatement, to the case of National Union of Textile Workers And Others v Stag Packings 1982 (4) S.A. 151 (T.P.D.), a case that may not require examination in view of the conclusion reached.

       

The Cross-Appeal

 

[19]  In the cross-appeal, the respondents raised a litany  of grounds, including contentions that the Court a quo erred (i) in deciding whether the appellant was unlawfully terminated and not deciding whether she was entitled to the orders set out in her notice of motion; (ii) by not dismissing the prayer for a declarator; (iii) by not finding that there were disputes of fact and proceeding, that notwithstanding, to make findings of fact on disputed matters in the absence of evidence; (iv) by not dismissing the application for an interdict for the reason that the appellant had not met all the requirements for the grant of same. In the main, the respondents prayed for an order that the finding relating to the dismissal as having been procedurally and substantively unfair, should be set aside.

 

[20]  A bird’s-eye view of the entire case does not, in my considered view, merit any close and meticulous attention and consideration of all the grounds of appeal raised by the respective protagonists. I am of the opinion that there is really one issue that needs to be determined and one which could potentially be dispositive of the entire appeal at this stage. The question is whether the Court a quo was correct in its decision to deal with the matter as it did, in terms of Rule 14 (6) (b) of its Rules, as one raising only a question of law.

 

[21]  Rule 14 deals with proceedings instituted on motion. Crucially, Rule 14 (1) provides that where a dispute of fact is not reasonably foreseen, the party may institute the proceedings on motion, supported by affidavit. Rule 14 (6) (b), on which the Court a quo relied, provides the following:

               

“The applicant shall attach to the affidavit –

(b) in the case of an application involving a dispute which requires to be dealt with under Part VIII of the Act, a certificate of unresolved dispute issued by the Commission, unless the application is solely for the determination of a question of law.”(Underlining added)

 

[22]  It would appear to me that the Industrial Court Rules permit the launching of matters on motion proceedings provided that no dispute of fact is reasonably foreseen. In this regard, the applicant must fully consider the matter on the information available; its merits and demerits and cast his eyes ahead on the probabilities whether a dispute is likely, given all the facts at hand, to arise.

 

[23]  In this regard, a reasoned, sober and mature assessment must be brought to bear on the entire conspectus of available facts and documentation then at the applicant’s disposal e,g, the charges; the record of proceedings and decision thereon; the letter of termination and any post-termination correspondence at hand.

 

[24]  It is then, in my considered opinion, that an informed decision can properly be made as to whether in all the circumstances, a dispute of fact is likely to arise. In this regard, the applicant must, using reasonable foresight, act as a reasonable man, as the diligens paterfamilias, would. An applicant should not, at that stage, shoot from the hip as it were and institute application proceedings, resting on the forlorn hope and deep intercessory prayer that a dispute, though foreseeable, does not actually arise.

 

[25]  I may add in this connection that such proceedings would also be inappropriate if it can be reasonably foreseen that some of the issues likely to arise would inevitably require to be resolved by oral evidence. It would therefore follow that in the ordinary cases, where a dispute of fact is foreseeable, the Court is likely to dismiss the motion proceedings. In this regard, it would appear that the law applicable to disputes of fact as interpreted in relation to Rule 6 (17) of the High Court Rules would, mutatis mutandis apply herein.

 

[26]  As indicated earlier, the Court aquo, at paragraph 3.1 and 3.2 of its judgment, indicated that the parties agreed that the matter properly served before it in line with Rule 14 (6) (b), as the Court was only called upon to determine a question of law. The Court further recorded that it was being asked to make a declarator, based on the parties’ papers filed of record and no more.

 

[27]  From the arguments raised before the Court a quo on behalf of the protagonists and which are captured in the judgment, it recorded inter alia in respect of the respondents, that Mr. Jele submitted: (i) that if the Court granted the Order prayed for by the applicant, it would be effectively reviewing the decision of the employer without it having enquired into the lawfulness or fairness of the employer’s conduct; (ii) that the Court could not order reinstatement without it having made its own enquiry about the lawfulness or fairness of the dismissal; (iii) that the Court did not have inherent power to order re-instatement of an employee and that its powers of reinstatement are confined to section 16 of the Act and exercisable in circumstances where the Court would itself have enquired into and found that the employee has been unfairly dismissed.

 

[28]  It is, with great respect clear, from the argument of the respondents recorded by the Court a quo and stated above that this was a matter that could not be properly heard in terms of Rule 16 aforesaid. It would in the circumstances, be clear that the respondents did not agree to the matter proceeding in terms of the aforesaid Rule and Mr. Jele stated as much in argument before us.

 

[29]  It appears to me on first principles that it was necessary for the Court a quo, in properly arriving at a decision as to whether the employer’s conduct resulting in the dismissal was or was not fair and therefore unlawful, to make its own independent enquiry regarding the circumstances in which this incident occurred. In particular, the Court a quo, in the absence of evidence, found for a fact that there was no hearing preceding the dismissal and it was on that basis that the finding regarding the unlawfulness and unfairness of the dismissal was predicated.

 

[30]  It is particularly clear from the sets of affidavits filed by the respective parties, that whereas the appellant claims that there was no hearing preceding the dismissal, the respondents, particularly when one has regard to the affidavit of Sibusiso Nhleko, and he 2nd respondent took the position that the appellant was given some hearing and that the Bank’s position was put to her in a meeting but she did not respond thereto.

 

[31]  There is clearly a dispute in this regard and it was in my view, a precipitous exercise for the Court a quo to hold as it did, without itself into the exact nature of the meeting; the parties who attended same; the nature of discussions thereat and what actually transpired, that there was no pre-dismissal hearing.

 

[32]  It is only after ascertaining the relevant issues set out above, through the use by both Counsel of trial forensic skills at their disposal from those who partook in these meetings, that the Court a quo could have properly come to a view and be placed in a perfect position to state without diffidence or fear of contradiction that there was indeed no pre-dismissal hearing. To this extent, it would appear to me that the Court a quo fell into error and did not adequately heed the warnings raised by the respondents in their arguments.

 

[33]  I now turn to consider the issue of re-instatement. The respondents argued upfront that the Court would not, if the matter proceeded on application proceedings, be well placed to deal with the issue of reinstatement for the reason that a dispute of fact was in that connection readily foreseeable. In this regard, they submitted, the Court would itself have to enquire, as stated earlier, into the lawfulness or fairness of the dismissal in the first instance.

 

[34]  Section 16 (2) of the Industrial Relations Act stipulates that where the Court finds (presupposing that it makes the finding of an unfair dismissal itself), that a dismissal is unfair, it shall require the employer to re-instate or re-engage the employee unless –

(a)    the employee does not wish to be so reinstated or re-engaged;

(b)    the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(c)    it is not reasonably practicable for the employer to re-instate or re-engage the employee; or

(d)    the dismissal is unfair only because the employer did not follow a fair procedure.

 

[35]  It is clear in this matter that the respondents in their letter terminating the appellant’s services, stated that the relationship of trust had been eroded so that continued employment was no longer possible. This was, in my view, a clear pointer that this was not a matter that was amenable to motion proceedings in the event the Court properly found that the termination was unfair. Clearly, oral evidence would have been needed to be adduced in order to resolve the issue of whether re-instatement, which the appellant wanted, was a viable option in all the circumstances of the case.

 

[36]  In this case, the Industrial Court in fact realized, having declared that the termination was unlawful, an issue that I shall deal with briefly below, that it could not itself, in the absence of oral evidence, order a re-instatement of the appellant. The learned Judge a quo expressed himself in the following terms in this regard at page 21 of the record (p16) para 18 of the judgment:

 

“The court cannot grant a reinstatement order without having made an enquiry whether the circumstances surrounding the dismissal are such that continued employment relationship would be tolerable and, secondly, whether it is reasonably practicable for the employer to reinstate the employee.”

 

This is a point, as earlier indicated, Mr. Jele had specifically made to the Court as indicated at paragraph 6.3 of the judgment of the Court below.

 

[37]  It is therefore my considered view that the Court should not have embarked on this case based on motion proceedings as a dispute of fact regarding the propriety of reinstatement was clearly foreseeable; was bound to and did in fact arise. As indicated earlier, the writing of the respondent’s position on the reinstatement issue was on the wall very early and was clearly captured in the letter of dismissal.

 

[38]  There is also the issue of the declarator. Mr. Jele, in his heads of argument, criticised the Court a quo for not having dealt with the issues raised in the notice of motion. This criticism may not be fair. I say so for the reason that when one reads the judgment of the Court a quo as a whole, it is clear that the Court a quo dealt with the confirmation of the appeal ruling; the declarator regarding the unlawfulness of the dismissal and reinstatement in its judgment. What is clear is that the Court refused to grant the orders sought for practical reasons, chief of which is that oral evidence needed to precede the granting of some of the orders.

 

[39]  In relation to the declarator sought in prayer, 2, the Court did in fact declare in its judgment that the dismissal was unlawful, and procedurally and substantively unfair. At page 19 of the record, the Court said:

 

“For the 1st respondent therefore to dismiss the applicant relying on the findings of the internal disciplinary process which was concluded five months earlier, was clearly unlawful.”

 

        At para [19] page 21, the Court continued:

 

Prima facie, the dismissal of the applicant on 05 February, 2009 was therefore both substantively and procedurally unfair.”

 

[40]  It can therefore be argued and with much justification in the premises, that the Court a quo did in its judgment declare that the dismissal was unlawful but declined to grant a specific order in that regard for practical reasons that it would have had, in the aftermath, to order reinstatement in the ordinary course, an issue calling for a full enquiry by the Court a quo.

 

[41]  It is clear in my considered opinion, having regard to the  arguments foreshadowed by Mr. Jele as captured in the judgment of the Court a quo, there were some foreseeable disputes of fact e.g. the issue of the unlawfulness of the dismissal; the confirmation of the appeal Ruling (See para 10.2 of answering affidavit at p68 of record) and the issue of reinstatement. There was also the issue of the critical role allegedly played by one Ms. Mlambo in the appellant’s fall-out with the Bank. These allegations were denied and the respondents advanced a totally different picture, controverting in material respects the appellant’s version. All the above issues unmistakeably show that the route of dealing with this case as one only raising a question of law was clearly incorrect.

 

[42]  It will be clear from the foregoing that the matter was afflicted by disputes of fact which with reasonable foresight ought to have been foreseen. In my view, the disputes were so material such as to render the matter not capable of conclusion on motion. It neatly fell within the meaning attributed to disputes of fact in the following cases amongst many others: Daniel Didabantu Khumalo v The Attorney-General Civ. App No. 31/2010(SC); Elmon Masilela v Wrenning Investments (Pty) Ltd And Another Case No. 1768/1998 (HC); Hlobisile Cynthia Maseko (Nee Sukati) And Another v Sellinah Maseko (Nee Mabuza And Four Others Case No. 3815/10 (HC).

 

[43]  At paragraph [21] above, I deliberately underlined the last portion of Rule 14 (6) (b). The words underlined are “unless the application is solely for the determination of a question of law”. From the synopsis of the issues raised above, it is in my considered view ineluctably clear that some of the orders sought by the appellant before the Court a quo were not, when properly and closely considered, ones raising only a question of law. To that extent, I am of the view that the Court a quo erred in approaching the matter in the manner it did. That the approach was incorrect can be seen from the Court directing the appellant, in respect of the reinstatement, to approach it in terms of Chapter VIII of the Act.

 

[43]  In the premises, I am of the view that Mr. Jele’s arguments must be upheld. He prayed that this Court should, in view of the disputes of fact that did arise, refer the matter back to the Court a quo for oral evidence to be led. That is in my view, the correct approach in the circumstances.

 

[44]  The proper order to issue in the circumstances is the following:

 

  1. The order by the Court a quo dismissing the application be and is hereby set aside;
  2. The findings made by thCourt a quo regarding the unlawfulness of the termination of the appellant’s employment with the 1st respondent be and are hereby set aside;
  3. The matter be and is hereby remitted to commence de novo before the Court a quo, provided that the said Court shall be differently constituted, including the Members who shall sit with the Presiding Judge.
  4. The Registrar of the Court a quo be and is hereby ordered and directed to ensure that the hearing of this matter is expedited.
  5. Each party be and is hereby ordered to pay its own costs.

 

DELIVERED IN OPEN COURT IN MBABANE ON THIS THE 23RD DAY OF MARCH, 2011.

 

 

-------------------------------

T. S. MASUKU

ACTING JUSTICE OF THE INDISTRIAL COURT OF APPEAL

 

 

 

 

I agree

 

 

------------------------------

M. M. RAMODIBEDI

PRESIDENT OF THE INDUSTRIAL COURT OF APPEAL

 

 

1 agree

 

 

-------------------------------

M. D. MAMBA

ACTING JUSTICE OF THE INDUSTRIAL COURT OF APPEAL

 

 

Messrs. Nkosi Attorneys for the Appellant

Messrs. Robinson Bertram for the Respondents