IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 549/06
In the matter between:
ROBERT KUNENE Applicant
And
MANANGA COLLEGE Respondent
Neutral citation: Robert Kunene v Mananga College (549/06) [2018] SZIC 24 (18 April 2018)
Coram: Nsibande S.
(Sitting with N.R. Manana and J. Yende nominated Members of the Court)
Summary: Labour law unfair dismissed and – Applicant employed as accountant. Position of Applicant made redundant – No rationale given for redundancy – No consultation between parties held – Applicants dismissal both substantively and procedurally unfair.
[1] The Applicant, Robert Kunene, an adult male Swazi was employed by the Respondent, a private school situated at Mananga in the Lubombo district, on 1st February 2004 as an Accountant. He remained in the continuous employ of the Respondent until 22nd December 2005 when he was dismissed by the Respondent on the basis that his position was no longer deemed necessary at Mananga College. At the time of his dismissal the Applicant was earning a monthly salary of E8 223.00 (Eight Thousand Two Hundred Twenty-Three Emalangeni).
[2] The Applicant considered his dismissal unfair and reported a dispute at the Conciliation Meditation and Arbitration Commission (CMAC) whose conciliation efforts were unsuccessful resulting in the issuance of a certificate of unresolved dispute. The Applicant then instituted this application for the determination of the unresolved dispute in terms of Section 85 (2) of the Industrial Relations Act No.1 of 2000 as amended.
[3] The Applicant’s application was opposed by the Respondent which duly filed its Reply there to denying that the dismissal was unfair. The Respondent stated in its reply that the dismissal of the Applicant was substantively and procedurally fair because the Applicant’s post had become redundant as result of a restructuring exercise which took place within the Respondent’s accounts department.
[4] Applicant was dismissed by the Respondent by letter dated 22nd December 2005, headed “Termination of Employment, Effective Immediate.” The Applicant was advised, “It is with deep regret that I inform you of the termination of your continued employment at Mananga College, with immediate effect. The position of Accountant is no longer deemed necessary at Mananga at this stage.”
Applicant was paid in lieu of notice, the following:-
- Full salary inclusive of all benefits for January 2006 less salary
advance of E4500.00.
2. Full salary for February 2006.
3. Full pay for 28 days leave.
His rental, water and lights were to be paid up to and including 28th February 2006 and his medical aid and provident fund up to and including 31st January 2006.
[5] The Applicant was convinced that the reason for the termination of his services had nothing to do with redundancy but all to do with Mr Rudolph’s behaviour towards him since February of 2005, when; Mr Rudolph brought his wife to the accounts office and told Applicant and Mr Gold to find “something” for her since she had experience in accounts. It was his evidence that once he and his supervisor Mr Gold took the decision that there was no suitable position for Mrs Rudolph at the school, particularly not in the accounts department.
[6] It was the Applicant’s evidence that after that decision was communicated to Mr Rudolph his relationship with Mr Rudolph deteriorated. He narrated the following incidences as proof of the deterioration of his relationship with Mr Rudolph:-
(a) In March 2005, Applicant attended to his usual responsibility at the bank for the school’s bank statements. He was subsequently told by Mr Rudolph to explain his whereabouts when Mr Rudolph had wanted to speak to him at about 1:00 O’clock. He explained that he had been at the bank as part of his duties, to collect the school’s bank statement. While Mr Rudolph initially seemed to understand and accept Applicant’s explanation. However, he subsequently called Applicant to his office where Applicant found him with Mr Simon Cushman, complained about his work performance and told him he would dismiss him if there was no improvement and then proceeded to give him a written warning. There was no explanation of the allegations of poor work performance;
(b) A few days after the written warning was issued Applicant, alleges, he was removed from his executive office and placed in a much smaller one;
(c) After this incident, an issue arose regarding Mananga College’s high electricity bill with regard to some duplex houses where some of Respondent’s staff resided. Applicant was asked to attend to the issue and resolve same. In his investigations, Applicant discovered that there was one electric metre per duplex house which meant that the houses making up the duplex unit shared same metre but because Mananga College paid electricity for its staff, it ended up paying the full bill, where a Mananga staff member shared the duplex with a non-staff member. The bill was somehow not being shared by the occupants of the duplex houses and Mananga College ended up settling the full bill while the occupant of the 2nd house paid nothing. In an attempt to solve the issue, Applicant suggested that Mananga College staff should share the duplex houses only with another member of Mananga College staff so that the bill incurred would legitimately be for the college to pay and the other occupants sharing a duplex and not employed by Mananga College would be responsible for their own bill emanating from the duplex house they share. For his efforts, the Applicant received a letter dated 25th August 2005 calling him to face disciplinary charges for re-arranging the staff’s living arrangements without authority. Poor standard of work was again cited in the said letter. He was advised that a hearing would be convened within 21 days of the letter. This letter was handed in as part of the Applicant’s evidence;
(c) The Applicant further stated in his evidence that towards the hearing date, he was advised to resign. Mr Gold told him that the Principal was going to dismiss him because he faced serious charges. He was advised to resign and be paid until December 2005. Applicant refused to resign but on 16th September he was surprised when academic staff arrived at his office to bid him farewell. Apparently a notice had been posted on the school notice board with a list of staff that would be leaving the school. Applicants name was on that list. Mr Gold could not explain the list and referred Applicant to Mr Rudolph who advised he would respond to his queries later;
(d) What followed next, according to the evidence was that a letter dated 19th September 2005 advising Applicant that his contract would not be renewed upon expiry of 31st January 2006. He was further advised that he was required to work only up to 9th December 2005. Applicant then approached the Labour Office in Vuvulane to complain about the manner in which his employer was treating him. Following discussion between Applicant, Mr Rudolph and the Labour Officer, the Respondent withdrew all actions against the Applicant and a memorandum of agreement was prepared and signed by the parties on 7th October 2005. The agreement was that all issues against the Applicant not be raised again. Despite this agreement the Respondent sought an apology from Applicant prompting the Applicant to return to the Labour Department for assistance. The Labour Officer by letter dated of 31st October 2005 reminded the Respondent of the meaning of the memorandum of agreement, signed on 7th October 2005.
[7] The Respondent then dismissed the Applicant on the 22nd December 2005 without any notice or consultation. Applicant’s testimony was that on the 22nd December 2005 he was called into Mr Rudolph’s office where he was handed a letter of termination and bid farewell. From there he was escorted to his office and allowed to retrieve his personal belongings before being ushered out of the office and being told not to come back at all. The College Security was told not to allow him onto the premises.
[8] His attempt at appealing was unsuccessful in that the chairman of the Respondent’s Board, despite receiving Applicant’s letter of appeal, refused to address same on the basis that attorneys were now involved in the matter. Apparently the Applicant’s attorneys had addressed a letter of demand to the Respondent.
[9] The Respondent’s defence as articulated in its Reply was that Applicant’s services were terminated on the basis that the post he held had become redundant as a result of a restructuring exercise that took place within Respondent’s account department. In his closing submissions Mr Motsa stated that the position Applicant held was deemed no longer necessary by the Respondent because all of his duties could be taken over by the Business Manager.
[10] The Respondent led no evidence to support the defence it set out in its reply. Respondent’s only witness Mr Gold, the former Business Manager, said nothing at all about the restructuring of the business unit nor about the Applicant’s position becoming redundant. This may have been because he left Mananga College in October 2005, before Applicant was made redundant. Being the only witness for the Respondent, the rationale for the redundancy was not explained nor was it explained if the redundancy was carried out in terms of fair procedure.
[11] The Respondent’s evidence before court sought to establish that Applicant had been employed on a two year contract that was to end on 31st January 2006. It was said that the letter of offer made clear the respondent’s intention in this regard and that it was the Respondent’s practice to employ full time employees on a two year contract. The alleged two year contract was not produced and the letter of offer itself indicated that, it was subject to the signing of a formal contract of employment. The Applicant denied that such a contract was signed and Mr Gold could not say whether the applicant had signed a two year contract or not since that had been the headmasters’ responsibility.
[12] The relevance of the two year contract was lost to the court regard being had to the Respondent’s burden in terms of Section 42 2 (a) and (b) of the Employment Act 1980. The Section reads:
42 (2) “The services of an employee shall not be considered as having been fairly terminated unless an employer proves:
- that the reason for termination was one permitted by section 36; and
- that taking into account all the circumstances of the case, it was reasonable to terminate the services of the employee. ”
In the case of Dumsani Lushaba v J.D. Group IC Case No. 210/2004, the Court stated that the onus resting on an employer who claims retrenchment requires such employer to show on a balance of probabilities that it had a fair reason to retrench the employee and that the decision to retrench was reasonable and fair in all the circumstances.
See also: 1. Makhunda Dlamini v Inyatsi Superfos IC Case 213/1998
2. Phyllis Phumzile Ntsalintjali v SEDCO IC Case No. 88/2004.
[13] This Court has previously held that employees selected for redundancy must be afforded opportunities to make representation about their individual circumstances.
See: Boniface Dlamini v Swaziland United Bakeries IC Case No. 200/2002.
[14] Obtaining before court, there is no evidence of any consultations between applicant and the respondent regarding the redundancy nor is there any evidence of the rationale for the redundancy. As stated above, the respondent’s only witness, Mr Gold did not address the issue of the redundancy at all.
In the circumstances and on the evidence before the Court, the Respondent has failed to meet the onus imposed on it by Section 42 of the Employment Act (supra). For the reasons set out above the court holds that the termination of the Applicant’s services was substantively and procedurally unfair.
[15] The Court must now consider what remedies are unavailable to the Applicant. In terms of Section 16 (1) of the Industrial Relations Act No. 1 of 2000 as amended, if the court finds that a dismissal is unfair it may:
“(a) order the employer to reinstate the employee from any date not earlier than the date of dismissal; or
(b) order the employee to reengage the employee, either in the work in which the employee was employed before dismissal or in other reasonably suitable work on any terms and from any date not earlier that the date of dismissal; or
(c) order the employer to pay compensation to the employee.”
Section 16 (2) states that the Court shall require the employer to reinstate or re-engage the employer unless –
- The employee does not wish to be reinstated or re-engaged;
- the ---
- ---
- --- .”
[15] The Applicant indicated that he had two children who he had had to move to his parental home following his dismissal. He had to depend on his parents for his family’s livelihood since his wife was also unemployed at the time. He found work with Maloma Colliery in August 2006 and left them in early 2007. At the time the matter was heard he was self-employed as a consultant. The Applicant did not ask to be reinstated, not in his papers before court nor when he gave evidence. He asked for compensation and asked the court to consider that he had suffered great financial prejudice and asked further that the circumstances surrounding his dismissal should weigh heavily against the Respondent due to the fact that despite the memorandum of agreement regarding acts of victimisation against Applicant, he was nevertheless summarily dismissed. The Court was referred to the case of Havelock Asbestos Swaziland Ltd v Scholes (NULL) 1999 SZICA (16 April 1999).
[16] Taking into account the circumstances of Applicant’s dismissal and the conduct of the Respondent, Applicant’s personal circumstances and the degree of hardship he suffered following his dismissal, the Court is the considered view that ten months salary would be fair compensation for the Applicant. The Applicant claimed notice pay’s overtime in his papers. There was no evidence led with regard to overtime hence the court is unable to grant that prayer. With regard to Notice pay Applicant was paid one month’s notice in terms of Exhibit and is therefore not due any Notice pay save the difference between his salary at dismissal E8233.90 and the amount paid at dismissal E 7637.65.
[17] Judgement is entered for the Applicant for payment as follows.
Balance of notice pay E 596.85
Compensation (E8233.90 x10) E 82339.00
Total Award E 82935.25
S. NSIBANDE
PRESIDENT OF THE INDUSTRIAL COURT
For Applicant : Mr. Dlamini
For Respondent : Mr. Motsa
