IN THE INDUSTRIAL COURT OF SWAZILAND
Case No. 180/17
In the matter between:
MALUNGISA MAJAHA MATSEBULA Applicant
MANYATSI – NHLEKO QUANTITY SURVEYORS Respondent
Neutral citation: Malungisa Majaha Matsebula v Manyatsi-Nhleko Quantity Surveyors (180/17)  SZIC 28 (18 April 2018)
Coram: NSIBANDE S. JP
(Sitting with N.R. Manana and M. Dlamini Nominated Members of the Court)
 The Applicant applied to the Industrial Court on 27th June 2017 from the determination of unresolved dispute arising from the termination of his services by the Respondent on 2nd March 2017. He alleges his dismissal was automatically unfair because it was prompted by his demand to be paid his terminal benefits at the termination of his employment contract that had been for an indefinite period, before embarking on a new three (3) month fixed term contract as required by the employer, the Respondent. He is claiming his terminal benefits and twenty-four (24) months wages as compensation for automatically unfair dismissal.
 The Respondent filed a Reply on 12th July 2017 in which it denied employing the Applicant and further denied terminating his services unfairly or otherwise and alleged never to have ever employed him. Respondent alleged that the Applicant was an employee of Nhleko Property Managers and that having not employed him nor dismissed him, it was not to follow any substantive or procedural actions in his dismissal.
 The Applicant then filed this application for referral of the dispute to the Conciliation, Mediation and Arbitration Commission (CMAC) for arbitration in terms of the powers vested in the President of the Court by Section 85(2) of the Industrial Relations Act No.1 of 2000 as amended.
 The application for referral was launched on 18th September 2017 while the matter was awaiting the allocation of a trial date by the Registrar of the Industrial Court. A pre-trial conference had not been held not had there been discovery when the referral application was brought by the Applicant.
 In his application the Applicant states that the matter ought to be referred to CMAC for arbitration firstly because it is not complex secondly to minimise financial costs and thirdly, because the amount claimed E93,846.00 is not a substantial amount. At the hearing of the matter Applicant’s representative conceded that the amount claimed was substantive but submitted that since the issues were not complex, the matter was a suitable one to be referred to CMAC for arbitration.
 The Respondent opposed the application and objected to the matter being referred to arbitration because, it submitted, the matter was complex including questions of whether or not the Applicant was employed by the Respondent, whether the applicant rendered any services to the Respondent and whether he was in fact employed by its director Mr Nhleko in his personal capacity and whether Applicant rendered services to Mr Nhleko. The Respondent also submitted that the amount claimed was substantial and that in the whole it would prefer that the dispute be determined by the Court.
 P.R. Dunseith J.P in Sydney Mkhabela v Maxi-Prest Tyres IC Case No. 29/2005 eloquently set out the factors that the President must consider in the exercise of his discretion when faced with an application of this nature. The factors to be considered amongst others are the following, amongst others; the complexity of the factual issues in dispute; the complexity of and/or novelty of any legal issues requiring determination; the nature of the relief claimed; whether the matter lands itself to determination by the more flexible and simple process of arbitration; and whether any party will be prejudiced, directly or indirectly, if the matter is referred to arbitration.
 With regard to the particular circumstances of the present matter, it seems to me that the factual issue are complex, raising numerous disputes of fact was the Applicant employed by the Respondent or its director, Zacharia Nhleko or Nhleko Property Management; to whom did he render his services; was he dismissed by Respondent or Mr Nhleko in his personal capacity; who paid the Applicant’s salary? The answers to these questions will form the basis of factual findings that an adjudicator will have to make when deciding this matter. These findings will depend on, among other things, the credibility of witnesses. A wrong finding on these issues can not be appealed, an appeal being only allowed on issues of law.
 While CMAC Commissioners are now experienced attorneys with LLB degrees and which CMAC has dealt with and decided complex matters and awarded substantial amounts, “it must be established that the balance of equity favours the referral before an order for compulsory arbitration will be made, particularly if one of the parties objects to the matter being determined by arbitration.”
See: 1. “The attitude of the Industrial Court or Labour Arbitration
Referrals” – Nathi Gumede dated 4 July 2012.
2. Sydney Mkhabela v Maxi-Prest Typres (supra).
 In the circumstances of this matter and for the reasons set out above the application to refer this matter to arbitration in terms of Section 85(2) of the Industrial Relations Act 2000 (as amended) is refused.
There is no order as to costs.
PRESIDENT OF THE INDUSTRIAL COURT
For Applicant : Mr. S. Dlamini
For Respondent : Mr. M. Dlamini
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