IN THE INDUSTRIAL COURT OF ESWATINI
Case No. 299/17
In the matter between:
DUMSANI DLAMINI Applicant
MPHENDULO DLAMINI T/A
PHAMBILI DLAMINI TRANSPORT Respondent
Neutral citation: Dumsani Dlamini v Mphendulo Dlamini T/A Phambili Dlamini Transport (299/17)  SZIC 33 (05 June 2018)
Coram: NSIBANDE S. JP
(Sitting with N.R. Manana and M. Dlamini Nominated Members of the Court)
Heard: 28 March 2018
Delivered: 05 June 2018
 This is an application for the determination of an unresolved dispute brought by the applicant against the respondent. The application was served personally, on the respondent on 13th September 2017 but he did not appear in Court on the set date. Following that the matter was struck off the roll on 8th November 2017, the Applicant applied for and was granted leave to reinstate the application on 25th February 2018. Consequently a notice of reinstatement was served on the Respondent on 2nd March 2018 advising him that the matter would be on the roll for hearing on 15th March 2018. The respondent did not appear in court to defend the application. The hearing then proceeded exparte, in the absence of the respondent and the applicant testified in support of his case.
 The applicant, in his papers, claims that he was employed by the respondent on 12th November 2012, as a mini driver (kombi driver). He stayed in the continuous employ of the respondent until 6th January 2015 when the respondent purported to dismiss him by taking away the vehicle he drove and giving it to another driver. The vehicle was taken away from the applicant on the pretext that it was going for mechanical repairs and that applicant would be advised by the respondent when it had returned. The very next day the vehicle was seen on the road being driven by a new person. No explanation was given to the applicant and he was left in limbo having been told the respondent would call him to return to work when the vehicle was returned.
 The applicant had the burden to prove that he was an employee to whom Section 35 of the Employment Act applied. According to his papers and the evidence led in court, applicant had been in the continuous employ of the respondent from 12th November 2012 until 6th January 2015. We are satisfied he discharged the burden.
 In his evidence before court the applicant stated the following:
4.1 that he was employed on 12th November 2012 and that he was paid E600 in November 2012 and E600 in December 2012;
4.2 that at the time of his dismissal, in January 2015 he was earning E1200 per month;
4.3 that he was dismissed on 6th January 2015 when the respondent took away the kombi applicant was employed to drive under the pretext that it was going for mechanical repairs. The kombi was given to another person to drive on the very next day without explanation.
4.4 that during his tenure with the respondent he was underpaid his wages as the wages paid by respondent were below the minimum wage stipulated in the Regulation of Wages (Road Transport Industry) Order 2010 and 2013 which were applicable at the time of his employment; that between December 2012 and July 2013 his wages ought to have been E1654.43 per month but the respondent paid him E1200 per month but for the month of December 2014 when he was paid E600. In November 2012, when he was hired, he should have earned E1095.60 but was paid E600; that between August 2013 and December 2015 (inclusive) his wages ought to have been E2059.70 per month instead of the E1200.00 per month he earned; that he should have been paid E399.70 for the days worked in January 2015 but he was not paid anything; that in October 2014 he earned E1000 instead of E2059.70; that in November 2014 he again earned E1000 instead of E2059.70 that in December 2014 he was paid E250 instead of E2059.70; that during his entire period of employment by respondent he was underpaid by an amount of E21095.11 (twenty-one thousand and ninety-five Emalangeni eleven cents);
4.5 that during his tenure as respondent’s employee he worked from 6am to 7pm every weekday and Saturdays; that he worked on 2 Sundays each month starting work at 7am until 6pm; that he also worked on public holidays.
 With regard to his dismissal, the applicant stated that on 6th January 2015 his employer sent his (the employer’s) brother, Tjwala Dlamini, to collect the vehicle because it needed mechanical attention. Applicant was told that the employer would call him and return the vehicle on 7th January 2015. That call never came but the vehicle was seen being driven by another driver, servicing the routes applicant used to service. Despite the fact that the public service vehicle continued to be driven by another person, applicant awaited for the promised call from the Respondent. When that call did not come, he then, on 12th January 2015, wrote to respondent asking him to:
(i) make payment of the balance of his wages for the months of October, November and December 2014;
(ii) refund him for the purchase of a windscreen for the public service vehicle; and
(iii) review his decision to employ another driver without any communication. Applicant further requested to be reinstated immediately failing which he would consider himself to have been constructively dismissed. The respondent did not respond to this letter.
 The applicant sent a follow up letter dated 29th January 2015 but again there was no response from the respondent. Applicant then considered himself to have been dismissed unfairly and reported a dispute with the Conciliation Mediation and Arbitration Commission who were unable to resolve the dispute and issued a certificate of unresolved dispute. The application before court then followed.
 At the hearing of this matter, the Applicant claimed payment of; Notice pay (E2059.70); additional notice pay (E316,87); and maximum compensation for unfair dismissal (E24 716.40). He further claimed payment of overtime amounting to E7991.15 being in respect of overtime worked daily, on public holidays and on rest days. He also sought payment of E 4,490.46 which he said was in respect of commission due. He was however, unable to explain how this commission became due. Finally, he claimed payment of a sum of E1500.00 being in respect of a refund of money he spent replacing the windscreen of the vehicle he was hired to drive. He also claimed E21,095.11 being in respect of underpayment in wages from 12th November 2012 to 6th January 2015. He also sought leave pay in the sum of E2395.80.
 The applicant, being the only person who gave evidence at the trial proved through his evidence that he was an employee to whom Section 35 of the Employment Act applied as he had served his probation and had worked for the respondent for at least two years. His evidence was uncontroverted.
 Having alleged that he was constructively dismissed, applicant had to prove further that his employer’s conduct towards him was such that he (the applicant) could no longer be reasonably be expected to continue in his employment, in terms of Section 37 of the Employment Act.
 In this regard applicant testified that his employment relationship with the respondent started to deteriorate in October 2014 when he approached the respondent and asked that his wages be review, upwards to be at least at per with the minimum wage provided for in the appropriate Wages Order. The result of that request was that his wages were reduced from E1200.00 to E1000.00. There was no explanation for the reduction in wages nor was there a specific response regarding the request for a review of wages. Instead in December 2014, the applicant received E250.00 as his wages. This was followed by the act of removing the public service vehicle from the applicant and the handing over of the vehicle to another driver. The applicant then wrote to the respondent asking him to reconsider his position and to pay the outstanding wages but there was no response from respondent, even after the applicant indicated that he would consider himself to have been dismissed if the respondent did not review the position regarding the public transport vehicle.
 We are satisfied that the applicant has established that he was constructively dismissed. The reduction of his wages in circumstances where he was asking the employer to comply with the relevant Wages Order in our view rendered continued employment in liable especially when the December wage paid is mistaken into account. Finally, the respondent took away the vehicle from applicant physically making it impossible for the Applicant to render his services.
 In terms of Section 37 of the Employment Act 1980, the onus rests with an employee to show that the employers conduct towards him was such that he could not reasonably be expected to continue with his employment. It is an objective test. Dlamini J in the matter of Pinky Toi Mngadi v Conco t/a Coca Cola Swaziland (Pty) Ltd IC Case No. 199/2008 quoted with approval the judgment in Pretoria Society for the Care of Retarded v Loots (1997) 18 ILJ 981 (LAC) where it held that;
“… the inquiry [is] whether the [employer], without reasonable and proper cause conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee. It is not necessary to show that the employer intended any repudiation of a contract the Court’s function is to look at the employer’s conduct as a whole and determine whether … its effect, judged reasonably and sensibly is such that the employee can not be expected to put up with it.”
 Andre Van Niekerk in his book Unfair Dismissal, 2nd Edition at page 21 says that, “In most instances, a constructive dismissal is triggered by a resignation. This is not the only form of termination of employment by an employee: It would seem that an employee may simply abscond from employment and would not be precluded from claiming a dismissal.”
The applicant in this matter did not resign but advised the respondent that because of the respondent’s conduct, he would consider himself to have been dismissed if the respondent did not review the position. The respondent did not review his behaviour.
 In the absence of any explanation of his conduct from the respondent, we can only come to the conclusion that his conduct lacked reasonable and proper cause. It was the respondent’s conduct that made continued employment intolerable for the applicant. As indicated in the above paragraph the case for constructive dismissal in terms of Section 37 of the Employment Act has been made.
 We now turn to examine some of the Applicant’s claims.
16.1. The applicant claimed payment of overtime (E7991.15), commission (E 4 490.46), annual leave (E2390.20) and a refund on the purchase of a windscreen (E1500). These claims were never reported to nor conciliated on by the Conciliation Mediation and Arbitration Council (CMAC) and as such the Court can not take cognizance of same. The applicant’s representative correctly conceded same in his submissions.
16.2 With respect to the applicant’s claim for underpayments, it appears from the evidence that applicant was indeed underpaid for the entire duration of his employment with the respondent. He claims underpayments from November 2012 and has established that in terms of the relevant Regulation of Wages Orders he was indeed underpaid. However he reported the dispute in April 2015. In terms of Section 76 (2) of the Industrial Relations Act 2000 as amended, ‘A dispute may not be reported to the Commission of more than eighteen (18) months has elapsed since the issue giving rise to the dispute arose.’
It appears to us that the underpayments from November 2012 to June 2013 could not be taken cognizance of because they fell foul of the 18 month cut off period. The applicant’s claim for underpayments that the Court considers proper are those from June 2013 up to January 2015. Regard being had to the relevant Wages Orders the applicant was underpaid in the sum of E16 823.93.
 The applicant told the court that he is 41 years old and is married with three children. He has not been in full time employment since being dismissed by the respondent. He said he was supporting his family through piece jobs ever since his dismissal.
 Despite claiming reinstatement the applicant made no prayer for reinstatement in his submissions but sought to be paid compensation for unfair dismissal. The evidence revealed that the applicant was unfairly treated by the respondent after he asked for his wages to be reviewed upwards and be paid in terms of the law. We find it unacceptable for an employee to be treated in this manner simply for demanding what is lawfully due to him as the applicant was treated in this case.
 The Court will accordingly enter judgment for the applicant. We order that the respondent pays the following amount to the applicant.
19.1 Notice Pay E 2059.70
19.2 Additional Notice E 316.87
19.3 Maximum Compensation E 24 716.40
19.4 Outstanding wages due
to under payments of wages E16 823.93
E 43 914.20
 No order as to costs is made.
The members agree.
PRESIDENT OF THE INDUSTRIAL COURT
For Applicant : Mr. A. Fakudze
For Respondent : No appearance