Vilakati v Swaziland fruit Canners (Pty) Ltd (212/2011) [2018] SZIC 112 (12 October 2018);

IN THE INDUSTRIAL COURT OF ESWATINI

                                                                                          CASE NO. 212/2011

In the matter between:-

 

SIFISO VILAKATI                                                            Applicant

AND

SWAZILAND FRUIT CANNERS (PTY) LTD                         Respondent

 

 

Neutral citation:     Sifiso Vilakati vs Swaziland fruit Canners (Pty) Ltd 212/2011  [2018] SZIC 112  ( October 12, 2018)

 

 

Coram:                      N.NKONYANE, J

     (Sitting with G. Ndzinisa and S.    Mvubu      Nominated Members of the Court)

 

 

 

 

 

Heard submissions:                            07/08/18

           

Judgement delivered:                 12/10/18

 

 

 

 

 

SUMMARY---Labour Law---Dismissal on grounds of operational requirements---What the employer must  prove for the dismissal to be regarded as fair.

 

Held---The employer must prove on a balance of probabilities that there was a genuine commercial rationale for the restructuring.

 

Held further---The employee is entitled to know the reason for the retrenchment.

 

 

 

 

 

JUDGEMENT

 

 

 

 

 

 

 

 

1. The Applicant is an adult female citizen of ESwatini and former employee of the Respondent.  The Respondent is a limited liability company registered in terms of the Companies Law of the Kingdom of ESwatini, carrying on its business at Malkerns in the Manzini District.

 

1. The Respondent is part of the Rhodes Food Group of Companies.  The Respondent is involved in the business of exporting fresh fruits and canned fruits.  The Applicant started to work for the Respondent as Juice Line Controller.  In 2007 there was an internal advertisement for the position of Trainee Packhouse Manager tenable at the Respondent’s Citrus Estate which was based at Tshaneni. The position was also advertised externally. The Applicant was appointed to the position on 03 September 2007 and she accordingly relocated to Tshaneni.

 

 

1. The Applicant remained in continuous employment until 09 March 2010 when her services were terminated by the Respondent on grounds of redundancy.

 

1. The Applicant thereafter reported a dispute to the Conciliation, Mediation and Arbitration Commission (“CMAC”) and claimed that her dismissal by the Respondent was unfair.  The parties were unable to resolve the dispute by conciliation and a certificate of unresolved dispute was issued by the Commission.    

 

1. The Applicant then instituted the present application in Court for determination of the unresolved dispute.  The Applicant’s application was opposed by the Respondent which duly filed its Reply thereto.

 

1. In her statement of claim the Applicant stated that her dismissal was substantively and procedurally unfair because;

 

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1. The Respondent in its Reply denied that the Applicant’s dismissal was unfair.  The Respondent stated in its Reply that;

 

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1. The issues for the Court determine  therefore are;

 

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1. The Respondent told the Court that the Applicant’s retrenchment was based on operational restructuring as a result of market or financial difficulties.  It is a requirement of the law that the decision to retrench must be reasonable, made in good faith and that there must be a commercial rationale for the retrenchment.

 

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1. The evidence before the Court revealed that Rhodes Food Group acquired the Tshaneni Citrus Estate in about 2005 from Inyoni Yami Swaziland Irrigation Scheme (IYSIS).  The Packhouse Manager for the Citrus Estate was Mr. Jarvis Maluleka.  Mr. Maluleka was about to retire hence the Applicant was employed as a Trainee Packhouse Manager with the intention of taking over the position from Mr. Maluleka.

 

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1. As a means to rationalize its operations and improve efficiency, the Respondent combined the Packhouse Manager position with that of Plant Maintenance and created the post of Operations Manager.  The Applicant did not qualify for this position as she did not have Plant Maintenance experience.

 

1. A new person was appointed to the position of Operations Manager by the name of Izak Saaiman.  Mr Saaiman possessed both Packhouse and Maintenance experiences.

 

1. Two consultation meetings were held with the Applicant.  The Maintenance Manager, Mr. Claudio Martins, and the Packhouse Manager, Mr.  Jarvis Maluleka were also consulted during the restructuring exercise. Their services were also terminated. During the consultations there was no alternative position for the Applicant that was identified and her former position at Malkerns had been filled.  The consultations took place during the month of February 2010.  Two options were put forward by the Respondent.  One was to extend the Applicant’s employment up to the end of August 2010 and thereafter take the retrenchment package.  The reason for this was to observe if there would be any opening at Malkerns.  

 

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The evidence that the retrenchment exercise was due to the global economic crisis was not in dispute.There were, therefore, credible reasons for the retrenchment exercise.The Court therefore rejects the Applicant’s contention that the Respondent created a non- existent reason for the redundancy.The evidence before the Court revealed that the Citrus Estate ceased operations in 2011 and the business was sold to RSSC.

 

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         (See:- Dumisa Lushaba V JD Group (PTY) LTD, case number 210/2004 (IC).

 

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24.   As already pointed out herein, when the Applicant was terminated on grounds of redundancy the parties entered into a new employment contract.  It was the Applicant that terminated the new employment relationship by resignation.  The Applicant did not deny that she was paid all her terminal benefits when she was retrenched by the Respondent.

 

25.     In the final result, the Court will come to the conclusion that the respondent was able to show on a balance of probabilities that it had a fair reason to retrench the Applicant and that the decision was reasonable and made in good faith.  The Court will accordingly make the following order;

 

1. The application is dismissed.
2. There is no order as to costs.

 

26.     The members agree.      

 

                

 

 

N.NKONYANE

JUDGE OF THE INDUSTRIAL COURT OF ESWATINI

 

 

 

 

 

For Applicant:Mr. S.M. Simelane.

(Attorney at Simelane-Mtshali Attorneys)

 

 

For Respondent:Mr. M. Sibandze.

(Attorney at Musa M. Sibandze Attorneys)