Dlamini vs Diesel (Pty) Ltd (336/2018) [2018] SZIC 143 (12 December 2018);

 

 

 

IN THE INDUSTRIAL COURT OF ESWATINI

 

HELD AT MBABANE                                                          CASE NO. 336/2018

In the matter between:

 

JOSEPH DLAMINI                                                                APPLICANT

And

DIESEL PROPRIETARY LIMITED                                   RESPONDENT

 

Neutral citation    :         Joseph Dlamini vs Diesel Proprietary Limited (336/2018)

 [2018] SZIC 143 (12 December 2018)

 

Coram                 :        B.W. MAGAGULA - ACTING JUDGE

(Sitting with N. Dlamini and D. Mmango

 Nominated Members of the Court)

 

Heard                              :         11/12/2018

Delivered              :         12/12/2018

 

 

 

 

 

__________________________________________________________________

RULING ON THE NOTICE OF ECEPTION

__________________________________________________________________

 

1.      The Applicant applied to the Court for the determination of an unresolved dispute, between him and the Respondent in terms of 85 (2) of the Industrial Relation Act No.1 of 2000 as amended read with Rule 7 of this Court’s Rules.

2.      The Respondent, responded by filing a request for further particulars dated 15th November 2018, to which the Applicant replied by filing it’s further particulars.  Although unusually worded, “Applicant’s further particulars to the application for determination of unresolved dispute”.  The further particulars are dated the 22nd of November 2018.

3.      The Respondent being dissatisfied with the contents of the Applicant’s further particulars, filed an application in terms of Rule 30, which is dated the 22nd November 2018.  Where it initially sought to set aside Applicant’s further particulars, as an irregular step and it also sought for costs.

4.      It is apposite at this point, to mention that, the application in terms of Rule 30 was subsequently withdrawn by the Respondent’s Counsel, before the matter could be argued on the exception.

5.      The only issue for determination is the Notice of exception that was filed by the Respondent on the 22nd November 2018. 

6.      In essence, the Respondent’s Notice of exception is premised on the contention that the Applicant’s claim does not disclose a cause of action and that it is lacking material averments necessary, to sustain a cause of action. 

7.      The Rules of the Industrial Court, do not make provision for a Notice of exception.  However, Rule 28 provides that the High Court Rules, be applied where our Rules do not make provision, with such qualifications, modifications and adaptation as the presiding Judge may determine.

8.      We assume that, it is on this basis, that the Respondent has filed a Notice of exception, borrowing from a similar Rule that exists in the High Court Rules.  In the High Court Rules, the relevant rule that deals with an exception, is Rule 23.

9.      We now turn to consider the Notice of exception as filed by the Respondent.  The exception contains a two pronged attack.  Firstly, it is premised on the failure to disclose a cause of action and the lack of averments necessary to sustain a cause of action.  We deem it proper, to capture the Notice of exception, especially the relevant parts per verbatim.

10.  AD ABSENCE OF CAUSE OF ACTION

The Respondent argue that Applicant’s claim is predicated on a non-existent concept, being garden leave.  It submitted that garden leave, does not form part of our laws and cannot therefore found an action.

11.   AD LACK OF AVERMENTS NECESSARY TO SUSTAIN A CAUSE OF                      ACTION    

We do not deem it necessary to capture per verbatim the basis of the second leg as it comprises of the five subparagraphs in essence the crux of the Respondent’s contention is as follows:

11.1   Failure by the Applicant to respond adequately to the Respondent’s   further particulars, where the Respondent sought to be advised, whether the Applicant’s contract of employment was in writing or verbal.

11.2 The none existence of the type of leave under our law.  It is trite that the Applicant, in his statement of claim pleaded that he was granted garden leave.

11.3   Failure by the Applicant to furnish further particulars on the person who authorized him to be absent.

11.4   The duration of his garden leave and when it was due to expire.

11.5   The particulars of his sickly relative and the fact that the concept of garden leave is foreign to our jurisdiction.

12.   The above points seem to be the key points of the Respondents contention that the Applicant statement lacks averments to sustain a cause of action.  We take note that, the Notice of exception as filed by the Respondent excepts to an application to the Court that has been filed in terms of Section 85 (2) of the Industrial Relation Act of 2000 as amended, read together with Rule 7(4) of Industrial Court Rules of 2007.  In as much as the Respondent was perfectly entitled to borrow from the provisions of the Rule 23 of the High Court Rules, Rule 23, provides for an exception to be made to particulars of claim filed in action proceedings.  The High Court Rules regulate both motion proceedings and action proceedings.  One can only except to action proceedings. 

13.   The following question was posed to Counsel for Respondent, during the hearing of this matter. “Is there a difference between particulars of claim as drafted in terms of the Rules of the High Court and a statement of claim as envisaged in Rule 7 (4) of the Industrial Court Rules?”

14.     Mr. Mavuso’s response was to the effect that the statement of claim referred to in Rule 7, is similar to particulars of claim in action proceedings at the High Court.

15.     When we considered Rule 18 (4) of the High Court Rules, we concluded that it is almost worded similar to Rule 7 (4) (b).  The only difference is that Rule 18 provides guidelines to pleadings generally, and it is confirmed in the particulars of claim in action proceedings.  Rule 20 of the High Court Rules also traverses on what should be contained in particulars of claim.  This is more so because the cause of action, may vary at the High Court.  If may be a debt, a delictual claim and so on.  Yet the statement of claim, as envisaged in the matter at hand, is one for unfair dismissal. We consider it to be fair to look at the statement of claim as pleaded by the Applicant in line with his cause of action, which is unfair dismissal.  What should an employee who alleges that he has been unfairly dismissed by an employer plead in an application for determination of an unresolved dispute?  That is the question that must be answered.

16.   Section 85 (2) of the Industrial Relation Act of 2000 as amended, reads as follows:

          “if the unresolved disputes concerns the application to any employee of existing terms and conditions of employment or the denial of any right applicable to any employee in respect of his dismissal, employment, reinstatement or re-engagement of any employee either party to such a dispute may make an application to the Court for the determination of the dispute, or if the parties agree, refer the matter to the commission for determination.”

17.     It is common cause the application before Court pertains to a dismissal which fits one of the disputes referred to in Section 85 (2) as we have quoted above.  The above subsection, recognize that the application may be made to the Court for determination of a dispute.

18.     The dispute which is being referred to in the above section, is also recognized in Rule 7 (4) (d) where it provides as follows:

          In the case of applications for determination of unresolved dispute under 85 of the Act, a copy of the certificate of the unresolved dispute issued by the Commission shall be annexed.”

19.     When we consider the application as filed by the Applicant, the certificate of unresolved dispute, is annexed and it is marked “GD1”.  The nature of disputes as articulated in the certificate, is unfair dismissal and leave pay. In paragraph 3, the Commissioner at C.M.A.C stated the following:

20.1   The Applicant alleges that he was unfairly dismissed by the Respondent after he was indefinitely stopped from coming to work by the Respondent.

20.2   On the contrary, the Respondent contested that he absconded from work after he was asked to write a report. 

21.     In our view the dispute has not emanated for the first time in this Court, the dispute was reported within the auspices of C.M.A.C and the Commissioner conciliated between the parties, but both parties maintained their positions.  Hence the dispute remains unresolved.  Rule 7 (4) of the Industrial Court Rules states as follows:

“(a) The names, descriptions and addresses of the parties to the application;(b)a clear and concise statement of the material facts on which the party relies, which statement shall be of sufficient particularly to enable any opposing party to reply to the document;(c) a clear and concise statement of the legal issues that arise from the material facts, which statement shall be sufficiently particular to enable any opposing party to reply to the document;(d) In the case of applications for determination of unresolved dispute under 85 of the Act, a copy of the certificate of the unresolved dispute issued by the Commission shall be annexed; and(e)The relief sought.

22.     On the other hand, the guiding rule in the exception matters is Rule 23 (1) of the Rules of the High Court, where it is provided as follows:

          “Where any pleading is vague and embarrassing or lacks averments which are necessary to sustain an action or defence, as the case may be, the opposing party may, within the period provided for filing any subsequent pleading, deliver an exception thereto and may set it down for hearing in terms of Rule 6 (14);

          Provided that where a party intends to take an exception that a pleading is vague and embarrassing, he shall within the period allowed under this sub-rule, by notice afford his opponent an opportunity of removing the cause of complaint within fourteen days;

Provided further that the party excepting shall within seven days from the date on which a reply to such notice is received or from the date on which such reply is due deliver his exception”    

23.     The current exception is clearly not premised on the ground that the pleadings are vague and embarrassing.  However, it is premised on the fact that same does not disclose cause of action and it also lack material averments necessary to sustain a cause of action.  This then begs the question, what should an Applicant in this Court aver, that is necessary to sustain a cause of action?  The Rules of the Industrial Court do not provide for a cause of action, they require an Applicant to provide a statement of claim.  We are loathe to apply the concept of a cause of action, in the context of the Industrial Court Rules.  We take it that the Rules were carefully drafted to exclude such an import.  The Rules were deliberately worded to refer to a statement of claim.  In our view, that is deliberate, because a statement of claim is not the same as particulars of claim annexed to a summons as provided for, in the High Court Rules.  We say this due to the following:

24.     Rule 7 (4) is clear on what the statement of claim should contain.  We need not to repeat it, as we have already reproduced this except earlier in this judgement.  But, in a nutshell, other than the names, description and the addresses of the parties, the statement shall contain a clear and concise statement of the material facts, on which the parties rely.  Also a clear and concise statement of the legal issues, that arises from the material facts.  This is way different from particulars of claim in terms of the High Court Rules, which should a disclose the cause of action. 

25.     Also Section 42 of the Employment Act of 1980 gives guidance on this issue.  Section 42 (1), only requires an employee presenting a complaint to prove that at the time his services were terminated, he was an employee to whom Section 35 applies.  The employment Act shifts immediately, once the employee has made the allegation, the onus to the employer.  Section 42 (2) states the follows:

“the services of an employee shall not be considered to have been fairly terminated unless the employer proves (a) the reasons for termination was one permitted by Section 36 and (b) taking all to into account of the circumstances of the case it was reasonable to terminate the services of the employee.”

26.     This is one of the other glaring differences between the procedures of the High Court and Industrial Court.  At the High Court the Plaintiff usually makes averments in the particulars of claim.  The Plaintiff bears the onus of proving the facts that he alleges when the matter gets to trial.  At the Industrial Court, the ball game is totally different.  What the employee needs to establish, is that he is an employee to whom Section 35 applies and that he was unfairly dismissed.

27.     We do accept that the Applicant’s statement of claim could have been drafted better.  But, all the ingredients of what an employee must allege in terms of Section 42, read together with Rule 7 (4) are there.  The averments to which the Respondent takes issue to, are extra and were unnecessary averments in the first place.  It is the slovenly drafting that is obviously evident in the Applicant’s application that might have contributed to this.  

28.     There are two considerations to be established on an issue of an exception.  The first one is whether the pleading lacks particularity to the point that it is vague.  The second one is whether the vagueness is such that the excipient is prejudiced there from.  (SEE TROPE Vs SOUTH AFRICAN RESERVE BANK AND ANOTHER 1992 (3) SA 208 (T) at 210, 2212).

29.     The above guideline, in our view, is supposed to be applied in a toned down effect, of what should a statement of claim contain, as enunciated in Rule 7 (4).  Not necessarily, the higher standard as expected in the way in which particulars of claim should be drafted in terms of the High Court Rules.  In our view, in as such as much it is the issue of the garden leave foreign legal concept, in our jurisdiction.  But, that cannot prevent the Respondent from pleading.  In it’s reply, Respondent can simply deny that any garden leave was granted or that there is no such legal concept as garden leave, in our jurisdiction.  It is no impediment to the Respondent to actually respond to the application as set out, in the Applicant’s application for determination of unresolved dispute. 

30.     The ingredients which a statement of claim in support of an application of an unresolved dispute must contain, are set out in Rule 7 (4) and they are there.

31.     In casu, the statement of claim contains the names and the addresses of the parties to the application.  This appears in paragraphs one and two.  The addresses are there, at the back of the application.  In paragraph 4, it is clearly stated that he was employed by the Respondent on the 17th June 2013, as a painter.  His contract of employment was terminated on the 8th March 2018, for absenteeism. 

32.     In paragraph 5, he has stated his monthly salary being E 1 500.00 (One Thousand, Five Hundred Emalangeni).  He also stated in the same paragraph that he has been in continuous employment with the Respondent from the 17th June 2003.  In paragraph 12, he clearly makes the allegation that his dismissal from work is both procedurally and substantially unfair and states the basis being that, he had been permitted to be on the alleged garden leave.  Whether this is factually correct, can be responded to in reply and further canvassed during trial.  He also traverses the issue of leave in paragraph 11.

33.     The Respondent is at liberty to invoke Section 36 of the Employment Act of 1980 in it’s reply and state whether there was a fair reason to terminate the services of the Applicant.  There are acceptable reasons that are stated in that section.  The Respondent can reply to the allegation that the dismissal was procedurally unfair.

34.     We fail to appreciate why the issue of the “garden leave” should be a material fact that will disable the Respondent from replying to the core issues, as have been averred by the Applicant.  More especially since the burden of proof as per Section 42 (2) is on the employer, who is the Respondent in the matter before Court.  It is also common cause, that it is the practice of this Court that when hearing evidence at trial, it considers all the issues holistically.  Therefore, to dismiss this application on a technicality is not warranted in the circumstances. The Industrial Court is a Court of equity, it may disregard technical points. (See Section 11 (1) of the Industrial Relations Act).

35.     The Industrial Relations Act of 2000 (as amended) in Section 10, also refer to representation as set out in the Act, it states as follows:

“Subject to any rules made under section 9, any party to any proceedings   brought under this Act before the Court may represent itself or be represented by a legal practitioner or any other person authorized by such party.”

36.     In our view the manner in which this section was crafted is deliberate.

As it does not confine representation of parties to legal practitioners, who are

normally trained in the drafting of pleadings.  However, the legislature, intentionally included any other person, which is in line with the objectives

of this Act, to speedily resolve employer-employee disputes.  It is therefore

our reasoning that, the legislature when allowing representation by people

that are not legally trained, opened a window, that the standard of drafting 

of papers may not be excepted to be of such a high level, as that of attorneys. 

The guiding principle of course being Rule 7 (4).

37.     It is in our considered view, that the notice of exception as taken by the Respondent is technical.  The Court exercises it’s discretion as provided for in section 11 (1), which states as follows:

“The Court shall not be strictly bound by the rules of evidence or procedure which apply in civil proceedings and may disregard any technical irregularity which does not or is not likely to result in a miscarriage of justice”.

38.     We are of the view that, the issues that are raised by the Respondent will not result in the miscarriage of justice.  The Respondent can plead and pronounce itself on the allegations made by the Applicant.  We accordingly dismiss the notice of exception and we make no Order as to costs.

39.     The members are in agreement.

 

 

                                                 _________________

B. W. MAGAGULA

ACTING JUDGE OF THE INDUSTRIAL COURT OF ESWATINI

 

 

 For Applicant:    Mr. M. Mabuza (Labour Consultant)

 For Respondent: Mr. T. Mavuso, standing in for Mr. D. Hleta (DEMHLETA    Legal)