IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 417/2009
In the matter between:
AMBI VUSIE SIMELANE APPLICANT
J.D. GROUP (PTY) LIMITED t/a
BRADLOWS FURNISHERS RESPONDENT
N. NKONYANE : JUDGE
DAN MANGO : MEMBER
GILBERT NDZINISA : MEMBER
FOR APPLICANT : MR. S. MAVIMBELA
FOR RESPONDENT : MR. Z.D. JELE
 The applicant instituted legal proceedings on Notice of Motion for an order in the following terms:
“1. Directing that the reduction of applicant’s salary from March 2009 to June 2009 by the respondent is unlawful.
2. Directing the respondent to restore applicant’s basic salary to the sum of E7,136.00.
3. Directing that respondent pay to applicant the sum of E3,908.00 deducted from applicant’s salary for the months of March, April, May and June 2009.
4. Granting a special order for costs of this application to applicant.”
 The respondent is opposed to the application and it duly filed an answering affidavit. The applicant thereafter filed a replying affidavit. During arguments in court, it transpired that there was a dispute of fact relating to the circumstances under which the applicant signed a certain document, Annexure “AVS11” varying his salary from E6,080:00 to E7,136:00. The parties agreed that oral evidence be led to clarify this issue. Indeed the applicant did appear before the court to give oral evidence.
 The undisputed facts of the case revealed the following:
3.1 The applicant is an adult male employee of the respondent. He is employed as a salesman and is based at the Manzini Branch operating in Bhunu Mall, Ngwane Street in Manzini.
3.2 He was first employed by the respondent on 10th March 1997 and is still under the employ of the respondent. When he was first employed his basic salary was E2000:00 per month plus performance commission based on sales.
3.3 There was a company policy that was introduced in terms of which every year in February salespersons would fix their basic salaries and commissions. The policy was applicable to all salespersons who had been in the respondent’s employ for twelve or more months. If the salesperson chose not to participate in this scheme of fixing ones salary and commission, that salesperson would revert to the minimum basic salary for salespersons.
3.4 Accordingly, during the year February 2008 the applicant made his election to participate in the scheme. He signed the election document, Annexure “AVS11” on 13.03.08 which saw his basic salary increasing from E6,080:00 to E7,136:00. The applicant therefore from March 2008 to February 2009 received the basic salary of E7,136:00.
3.5 When the time for making an election on the following year February 2009, the applicant did not elect to participate in the scheme. According to the applicant, he did not sign the document because he realized that the terms had changed from getting the maximum of 80% of one’s previous salary to 2/3 of one’s previous salary. The applicant found himself getting a reduced salary from E7,136:00 to a new basic salary of E6,204:00 as the result of failing to make the election to participate in the scheme.
3.6 The applicant then raised a grievance with his employer using the internal grievance procedures of the respondent. He did not get a satisfactory explanation hence he brought the matter to court for its intervention.
 In court the applicant denied that he saw the document from the respondent’s head office written by Johan Kok dated 07 March 2008 which contains the intended amendment of the salespersons’ basic salary election amending the maximum increase of 80% of one’s previous salary to 2/3 of one’s previous year’s average. The applicant told the court that in any event this document applied to salespersons of the respondent that are based in South Africa only. The applicant went on to tell the court that he signed the election document on 13.03.2008 under duress and that he did not understand the contents thereof. He also said he signed because he was threatened that if he did not sign, his salary was going to be reduced.
 The applicant’s evidence that he signed the document “AVS11” under duress was clearly false and an afterthought. If it were true the applicant would have made that averment in his papers before court. The applicant however should be given the benefit of the doubt that he had not seen the policy document written by Johan Kok which had the intended amendment to the scheme to start on the following year in March 2009. We say this because of the following reasons:
5.1 There was no evidence before court that the applicant was given this document by his branch manager in Manzini.
5.2 The document is addressed to “All Salespersons – Bradlows (RSA only)”. So it is highly likely that it never reached the hands of the applicant as it was not intended for the Swaziland branches of the respondent in any event.
 What was clear to the court from the evidence before it was that the applicant knew or ought to have known the consequences of not participating in the scheme of yearly reviews of one’s basic salary. As already pointed out, we do not accept the applicant’s evidence that he signed the document under duress and that he did not read the document. If he did not read the document before signing it, the principle caveat subscriptor is clearly applicable. The applicant is or at least appears to be a person of average intelligence. He is a very effective salesperson for the respondent and has received numerous top performance awards.
 In terms of the election document that the applicant signed on 13.03.2008, “AVS11”, there is a provision that if any salesperson did not make an election for that particular year, his basic salary would automatically be adjusted to the applicable minimum basic salary for salespeople. This was the basis of the respondent’s counsel’s argument before the court that the applicant had no reason to complain that his salary has been reduced because he knew that having failed to make an election in March 2009, his basic salary had to be reduced accordingly.
 The court has a duty however to investigate the circumstances that led to the applicant not making the election in March 2009. The evidence before the court revealed that the applicant did not sign the election document in March 2009 because he did not agree with the amendments that had been made in the document, namely that he could revise his salary up to a maximum of 2/3 of his previous year’s monthly earnings as opposed to 80% as was the case in 2008. The applicant therefore failed to make the election in February 2009 not because he had decided not to do so. He failed to do so because he was pursuing this issue of the change in policy with the employer and was still waiting for an answer from the employer.
 The evidence also showed that the reduction of the applicant’s salary was never discussed with him. On the grievance action form “AVS 4” on page 13 of the book of pleadings, the management’s response to the applicant’s query appears as follows:
“I explained how Head Office calculated his new salary as per the spread sheet from Mr. Madisha, which brought it to R6,204:00 – Done this way for all salespeople in the company - he still is not happy with the formular.”
 This response by management corroborates the applicant’s evidence that he was never consulted before his salary was reduced from E7,136:00 to E6,204:00. The applicant appealed. On appeal the Regional Manager responded as follows on page 17 of the book of pleadings under management’s response:
“I could not respond to that because indeed the memo was addressed to all South Africans and he got an award for a top sales person”.
 In terms of the policy procedure the minimum basic salary for Salespeople is R1,765:00 per month. The basic salary for the applicant when he was first employed however was E2000:00 per month plus commission. It is therefore not clear how the respondent arrived at the basic salary of E6,204:00. In principle, the applicant having not participated in the scheme, he should be paid either the basic salary of E1,765:00 or E2000:00 per month. According to the grievance action form, page 13 of the book of pleadings, the basic salary of E6,204:00 was based on the spread sheet from Mr. Madisha. As already pointed out, this is conclusive evidence that indeed the applicant was never consulted but someone at the Head Office relied on figures in the spread sheet supplied by a certain Mr. Madisha to fix the applicant’s basic salary at E6,204:00.
 What also became clear to the court was that the respondent was reasonable and acted generously towards the applicant when it fixed his basic salary at E6,204:00, otherwise, the applicant having not elected to participate in the scheme his salary could have been fixed at E1,765:00 per month by the respondent as per the election document that the applicant last signed on 13.03.2008.
 Further, it was clear to the court from the evidence before it that the respondent still needs the services of the applicant as he is beyond doubt an excellent performer taking into account the best performing salesperson awards that he received. The court must therefore arrive at a conclusion that will not have the effect of affecting the relationship between the parties. It will clearly not be in the best interests of the respondent to lose the services of a salesperson of the applicant’s calibre.
 In principle therefore, the applicant having not made an election to participate in the scheme in March 2009, the respondent could not be faulted for paying the applicant a reduced salary from E7,136:00 to E6,204:00.
 As already pointed out, the respondent acted generously by not reducing the applicant’s salary to the minimum basic salary of E1,765:00 or E2000:00 per month as this could have seriously prejudiced the applicant. The applicant in paragraph 15.4.1 of the replying affidavit stated that:
“I wish to state that I am prepared to sign the “election” as long as it reflects the correct percentage of increment.”
 The salary of E7,136:00 was for a fixed period of one year from March 2008 to February 2009. We do not think therefore that the applicant has the right to claim short payment for the period of March, April and May 2009 as the applicant’s right to earn the salary of E7,136:00 lapsed at the end of February 2009. The reduction of the salary, in our view, was unlawful only for the reason that the applicant was not consulted but someone at Head Office decided that the salary would be reduced to E6,204:00 based on figures that the applicant did not know about.
 Furthermore, the court cannot make an order that the applicant’s salary be restored to E7,136:00 as the evidence showed that the applicant elected to be paid this salary for a specific period. It was for the period March 2008 to February 2009. In the end therefore, the applicant’s prayers as they presently appear in the papers before court cannot be granted and the application ought to fail.
 The court however using its equitable jurisdiction will make the following order:
The respondent is to continue to pay the applicant the basic salary of E6,204:00 pending the applicant’s election.
The respondent is to consult the applicant on the amendment to the salary election scheme on or before 21st May 2010 and the applicant to make his decision or election thereafter on or before 31st May 2010.
No order for costs is made.
The members agree.
JUDGE OF THE INDUSTRIAL COURT