IN THE INDUSTRIAL COURT OF SWAZILAND
JUDGMENT
Case No. 498/07
In the matter between:
MILLION MAVIMBELA Applicant
And
ROYAL SWAZILAND SUGAR CORPORATION Respondent
Neutral citation: Million Mavimbela v Royal Swaziland Sugar Corporation (498/07) [2018] SZIC 26 (18 April 2018)
Coram: NSIBANDE S. JP
(Sitting with N.R. Manana and J. Yende Nominated Members of the Court)
JUDGMENT
[1] The Applicant’s claim arises from what he interprets to have been an adverse change to his terms and conditions of employment by the Respondent. Specifically, Applicant’s complaint is that from the 26th May 2006 the Respondent changed the manner in which he received his salary without consulting him and without giving any notice. In his papers the Applicant alleges that since 1975, when he was employed, he received his salary in cash, in an envelope, and from the Respondent’s pay office. However on 26th May 2006 there was no envelope awaiting him at the pay office. Instead he was advised that since he had not forwarded his bank details to the Respondent, he would receive his salary in the form of a cheque and not cash. He was further advised that, going forward his salary would be deposited at a bank of his choice into an account, the details of which he was expected to forward to the Respondent.
[2] It is the Applicant’s evidence that he refused to accept the cheque and insisted that he be given cash. The Respondent was unwilling to accede to his demands and he therefore left the cheque and refused to accept further salary cheques, leaving them uncollected at the Respondent’s pay office on pay days.
[3] Applicant’s contention is that the variation in the method of paying his wages (from cash to bank deposit) was unilateral and arbitrary and thus unlawful. He contends further that such variation was prejudicial to him and an adverse change to his terms of employment. He complained that were his wages to be paid through the bank, he would receive less money, because of bank charges, than when he received same in cash. His contention was that effectively his wages were being reduced, by bank charges.
[4] Respondent’s position was that sometime in 2004 it engaged the Swaziland Agricultural and Plantations Workers Union (SAPAWU) and the Swaziland Agricultural, Manufacturing and Allied Staff Association (SAMASA), (being, respectively, the majority trade union and active staff association at its undertaking) on the need to change the system of payment of employee wages from a cash system to an individual employee bank deposit system. The need for a change of the wage/payment system was said to have arisen out of security concerns in that having large amounts of cash at the undertaking every month end encouraged armed robberies. The Respondent’s unrefuted evidence was that an agreement was reached in March 2005 with both the dominant trade union and the staff association in terms of which the parties agreed that:
4.1 All employees would forward their individual bank account details to the Respondent who would then arrange for wages/salaries to be paid into such accounts as provided, at the appropriate times. This process would continue until June 2006 by which time it was expected that all employees would have forwarded their bank details and would be receiving the wages/salary through such accounts;
4.2 The Respondent would migrate each employee on to the new payment system i.e. pay each employee’s wages/salary through the provided account, as and when the bank details were provided;
4.3 By end June 2006, all employees would be receiving their wages/salary through their bank accounts and no employee would be paid in cash. Those who were still to provide their bank details would be paid by cheque until such time that they provided their account details;
4.4 Cash payment for salaries at the Respondent’s undertaking would cease by the end of May 2006, all salaries/wages would cease to be paid in cash and employees would be paid through their bank accounts failing which they would receive cheques.
[5] It is common cause that the Applicant did not provide his bank account details to the Respondent and that he refused to accept his salary in cheque form from May 2006, insisting on cash payment despite the changes brought about by the Respondent. It is also common cause that sometime in November 2007, following communication between Applicant’s attorneys and the Respondent, a cheque of E34,622.00 (Thirty Four Thousand Six Hundred And Twenty-Two Emalangeni) was collected from Respondent by Applicant’s attorneys wages from June 2006 to October 2007. It was Applicant’s evidence that he instructed his attorneys to desist from collecting any further cheques from Respondent and that he, himself did not collect any wages cheques from November 2007.
[6] The Applicant’s case, in a nutshell, is that by changing the method of paying his salary wages from cash to a bank deposit system, the Respondent was varied his terms and conditions of employment and that such variation was prejudicial to him, offering him less favourable terms of employment than before. He asserts that in terms of Section 46(1) of the Employment Act 1980 the Respondent must pay his wages in legal tender and not otherwise.
6.1 Section 46(1) of the Employment Act reads:-
46(1) “Subject to subsection (2) and to Section 48, all wages due to an employee under his contract of employment shall be paid to him in legal tender and not otherwise and if any such contract contains a provision whereby the whole or any part of such wages is made payable in any other manner, that provision shall be illegal.”
Notwithstanding subsection (1) the wages of an employee under his contract of employment may, with the consent of the employee, be paid to him by cheque drawn on a bank or by postal order or money order.”
[7] It is Applicant’s assertion that the Respondent is, by operation of the law, prohibited from paying him his wages in any form other that legal tender, unless he has given his unequivocal consent for payment in cheque form or by postal or money order in terms of the law. Payment through depositing the wages in a bank account, he avers, is illegal.
[8] It is accepted that “legal tender” denotes notes, and coins issued in Emalangeni by the Central Bank of Swaziland as well as notes in South African Rands.
[9] The Respondent’s case is that the Applicant’s right to receive his salary in cash at the pay office ceased to exist:
9.1 When an agreement was reached with the union, SAPAWU, of which he was member, regarding the new salary/wage payment system; alternatively
9.2 When he received Respondent’s written policies and read and understood them and thereafter went on to receive his outstanding salary/wages in terms of those written policies; alternatively
9.3 When he accepted the sum of E34 622.00 being his salary/wages outstanding for the months June - October 2007; and
9.4 When, being aware of the changes that he considered adverse to his terms and conditions of his employment, he failed to challenge same in terms of Section 26 of the Employment Act 1980.
[10] The first question the court has to answer is whether there has been an adverse change in the terms and conditions of the Applicant’s employment through the change in the method of payment of his wages from a cash system to a bank deposit system.
[11] The employer’s duty on so far as an employee’s wages or salary are concerned is to ensure that the employee is paid for work done or to be done under a contract of employment, when the wages fall due in terms of the contract (Section 47 of the Employment Act); to pay such salary wages in legal tender (Section 46 (1) of the Employment Act); and to pay such wages/salary at or near the work place (Section 50 (1) of the Employment Act 1980), during working hours.
[12] The question that arises is whether the change from a cash payment system to a bank payment system represents a contravention of the provisions of the Employment Act (regarding the protection of wages) and represents an adverse change in the terms and conditions of employment of the Applicant.
[13] It seems to us that there is no contravention of the Employment Act with regard to the new payment system. Nor was there an adverse change in the terms and conditions of the Applicant’s employment. All that happened was that the Respondent, for all intents and purposes, changed the place at which the Applicant received his pay i.e. he would henceforth receive his wages at the bank instead of the Respondent’s pay office. He would still receive his pay in legal tender at the bank. He is not complaining that the employer is now paying him at a place too far from the work place thus the inference would be that the wage is paid at near the workplace, as required by the Act. While running a bank account from which to receive his wages may be inconvenient to the Applicant, it does not in our view and in the circumstances of this matter, result in an adverse change to the terms and conditions of his employment. Particularly because the reason for the change in the wage/salary payment system was agreed to by the parties. As already alluded to above, the requirements of the Employment Act 1980 in so far as the payment of wages is concerned, have been met:-
13.1 The Applicant is paid his wages at regular intervals; the payment he collects from the bank is in legal tender and his wages are paid near the work place and he may collect same during working hours.
[14] Although it was not pleaded in the papers saving before court made about Applicant being paid his wages by cheque; it being said that there was no specific agreement for such payment method between the Applicant and the Respondent as envisaged in Section 46(2) of the Employment Act. It is common cause that the trade union and staff association active at the respondent’s undertaking came to an agreement with the Respondent to change the payment system through the bank, as a result of safety concerns. It was agreed that in the interim, while the employees were attending to opening bank accounts, cheque payments would be made to those who were not yet ready for bank deposits. The Applicant fell into that category and was therefore given a cheque at the end of each month.
[15] It seems to us that if the Applicant was a member of the trade union active at the Respondent’s undertaking at the time that the union Respondent agreed on the change of the wage/salary payment system, then he would be bound by the terms of the agreement. Applicant was evasive when the issue of his membership of the union was raised. He did however, agree that he was a member prior to 2006 and that he stopped being a member sometime in 2006. In an answer to a question by the court, Applicant stated that the change in wage/salary payment policy was discussed with the Union and that the Union discussed it with the employees. From the evidence led and the Applicant’s demeanour when the issue of union membership was raised it appears to us that Applicant was annoyed with the Union for agreeing to the change in the wages/salary payment system and resigned from the union as a result. In our view he was bound by the agreement, the union having also consulted with the employees on the issue as confirmed by the Applicant himself. The payment of salaries by cheque was agreed between the employer and the employee representatives as a stop gap measure while migration to the new wage/salary payment system was being carried out. Having been a member of the union at the time of the agreement, the Applicant is bound by the agreement.
[16] In the circumstances and on the facts of this matter, the Court finds that the application is without merit and consequently the application is dismissed. The Respondent is directed to pay any outstanding amounts due to the Applicant through his attorneys. There is no order as to costs.
S. NSIBANDE
PRESIDENT OF THE INDUSTRIAL COURT
For Applicant : Mr. M.V.Z. Dlamini
For Respondent : Mr. N.J. Hlophe
