IN THE INDUSTRIAL COURT OF ESWATINI
Case No. 06/18
In the matter between:
AMALGAMATED TRADE UNION OF SWAZILAND Applicant
SPINTEX SWAZILAND [PTY] LTD Respondent
Neutral citation: Amalgamated Trade Union of Swaziland V Spintex Swaziland [PTY] LTD (06/2018)  SZIC 38 (31 May 2018)
Coram: NSIBANDE S. JP
(Sitting with Nominated Members of the Court Mr N. Manana and Mr. M. Dlamini)
Heard: 26 April 2018
Delivered: 31 May 2018
Summary: Labour law – Applicants seeking payment of wages for a period during which they were not at work – Question of whether applicants were told to stay at home by respondent or abandoned work following fire at work premises key to liability of Respondents to pay wages – Whether wages should be paid only to those employees not guilty of arson and related charges raised.
Held – Employees entitled to wages whether employer told them not to come to work.
Held also that because some work could have been done at the factory the idleness was not at instance of applicants thus Respondent liable to pay wages.
 Applicants moved an application under a certificate of urgency seeking the following orders:
1.1 Dispensing with the normal and usual requirements relating to manner of service, form and time limits pertaining to enrolment, service and filing of papers (and hearing thereof) set out in the Rules of Court and hearing this matter as one of urgency.
1.1.2 Condoning any non-compliance with the Rules of the Honourable Court;
1.1.3 That a rule nisi do hereby issue operating with interim and immediate effect calling upon the Respondent to show cause, on a date to be determined by the Honourable Court, why the following orders must not be confirmed and made final;
184.108.40.206 Interdicting and restraining the Respondent from convening and proceeding with the disciplinary hearings scheduled for 16th and 17th January 2018 against the Applicant’s members (as they appear in annexure A3, A4, A5) pending finalization of this application.
220.127.116.11 Declaring the intended disciplinary hearings sought to be convened on the 16th and 17th January 2018 by the Respondent to be unlawful and/or to be constituting an unfair labour practice.
18.104.22.168 That the Respondent be ordered and directed to serve the notices and invitations to attend disciplinary hearings to each individual accused employee personally not later than 48 hours before the commencement of the intended disciplinary hearings.
22.214.171.124 Directing and ordering the Respondent to pay forthwith the employees (Applicant’s members) their wages for December 2017 and their leave pays for the year 2017.
1.2 Costs of the application to be paid by the Respondent at the punitive scale of Attorney and own client.
1.3 Further and/or alternatively relief.
 The Respondent opposed the application and filed its answering affidavit in which it raised a dilatory plea regarding the non-joinder of the members of the Applicant on whose behalf prayer 126.96.36.199 above was sought. An application for joinder was then made by the Applicant and was granted without opposition by the Respondent following a tender of wasted costs by Applicant.
 After some preliminary arguments it because clear that the only issue between the parties was with regard to the wages for December and the leave pay for 2017. A rule nisi calling upon the Respondent to show cause why it should not be directed to pay the employees (Applicant’s members) their wages for December 2017 and their leave pays for the year 2017 was issued. It did not have interim or immediate effect. It also became clear that, whether the Applicants members were entitled to their December wages, could not be determined on the papers and that the circumstances relating to their absence from work could only be resolved by the leading of viva voce evidence.
 The Applicant, at paragraph 7.4 of its founding affidavit states that on or about 5th December 2017, the Respondent directed all the employees, including applicant’s members, to remain at home and not report for duty until further notice.
It was on this basis that applicant’s members claimed their December wages – because they remained at home on the instruction of their employer (the Respondent).
 The Respondent denied that it had sent the workers home and that it instructed them to remain at home until further notice. It alleged that the employees had seen the extent of the damage to the factory and had simply not returned to work as it was clear that the factory was inoperable. The viva voce evidence was meant to assist the court to come to a finding regarding the correct version of events as the versions set out on the papers were mutually destructive. It was our view that it would have been inappropriate in the circumstances to endevour to settle the dispute on affidavit without the benefit of seeing and hearing witnesses before coming to a conclusion.
See: Herbstein and Winsen – The Civil Practise of the Supreme Court of South Africa (4th Edition) at 234.
 The Applicant called Mr Wonder Mkhonza who is the Secretary General of the Applicant and the person responsible for dealing with employer-employee issues at the Respondent’s undertaking. He deposed to the founding affidavit on which the Applicant’s application is based.
 He gave the following evidence:
7.1 that he was called by one Melvin Dean, a General Manager of the Respondent, at about 10:00 am on the 5th December. Mr Dean informed him about a fire had broken out at the Respondent’s premises and advised that it was difficult for the emergency personnel to do their work as the workers were standing by the gate. Mr Dean, according to Mr Mkhonza, requested him (Mr Mkhonza) to come to the Company premises and address the workers and tell them to go home until such time that the Company (Respondent) called them back, because he was busy with other issues, Mkhonza said he advised Mr Dean that the Company (Respondent) should address the employees. When Mr Dean expressed his difficulty in doing so because of the situation at the premises, Mkhonza advised him to call the shop stewards to inform them of the Company decision so that they (the shop stewards) would relay it to the workers.
7.2 He testified further that he was informed later that Mr Dean had called the shop stewards to a meeting which was also attended by the Royal Swaziland Police, where the shop stewards were informed to address the workers and tell them to go home until further notice from Respondent. Mr Mkhonza conceded in cross-examination that he was not at the meeting where the shop stewards were allegedly told to address workers nor was he present when the workers were allegedly addressed by the shop stewards.
7.3 Mr Mkhonza further testified that on the 7th and 8th December he attended a meeting at the Respondent wherein the Mr Jameel Akaode, whom he described as the Respondent’s shareholder and CEO addressed same. It was Mr Mkhonza’s testimony that the CEO pointed fingures at the workers representatives who were at the meeting, accused them of instigating the workers to burn down the factory, specifically singled out Mr Mkhonza as the reason people were out of their jobs and stated that he (Mr Jameel Akaode would shut down the company. After having said that Mr Akaode left the meeting.
 Following an objection (that was sustained by the Court) to a particular witness being led by the applicants, the Applicant closed its case. The Respondent led no evidence with regard to its version of the events leading to the Applicant’s members not attending work after the 5th December 2017. The Court was therefore left with the affidavits before it and the evidence of Mr Mkhonza from which to come to a conclusion of the matter before it.
 In submissions, the Applicant stated that:
9.1 The events of 7th January wherein Mr Jameel indicated an intention to the factory are uncontroverted and must stand as true and correct.
9.2 That Mr Dean called Mr Mkhonza and asked him to tell the workers to go home until further notice is uncontroverted and should stand as correct and cannot be hearsay evidence in light of the fact that this was a conversation Mr. Mkhonta took part in.
9.3 It is common cause that all the employees at the Respondent but for the administration staff have been charged with offences relating to work stoppage but have not been charged with absenteeism or leaving the work place or work station without permission.
9.4 That the fact that only the packing department of the factory was affected by the fire and not the entire factory meant that the employee could continue with productivity but that they were not doing so because the Respondent CEO had indicated that he was closing down the factory.
9.5 That the employer (Respondent) has a duty of care towards its employees in terms of the Occupational Safety and Health Act (Section 9) of 2001, and that it (the Respondent) had the onus to prove that all necessary steps were taken or complied with by the company in ensuring a safe working, but that it failed to do so.
The applicants’ submission was that while it is the duty of the employees to render their service to the employer, which duty includes the duty to enter and remain in the employer’s service, there was an exception to these duties where an employee was on approved leave, like in the present case “as the employees are not in duty (sic) as per the directive of the employer.” It was the Applicant’s submission therefore that the employees were entitled to the prayers as per the notice of motion.
 The Respondent’s case was that –
10.1 In respect of the leave pay claimed for 2017, insufficient evidence was placed before the court to conclude that there is any leave pay due.
10.2 The order sought is specific to December 2017 and does not deal with any subsequent months. There has been no application to amend the order sought to broaden its scope. It was the Respondent’s submission that the court was bound to consider the application before it as it stood.
10.3 The allegations that the Respondent had directed the employees to stay at home until further notice was denied and that Mr Mkhonza’s evidence that they had been so instructed was hearsay because he had no first hand knowledge of the workers being so advised nor was there an affidavit filed by those who were supposedly told to go home until further notice, confirming his allegations. While the conversation between Mr. Mkhonza and Mr. Dean was not denied, it was submitted that since Mr. Mkhonza had been unable to carry out Mr. Dean’s request but advised that Mr. Dean speaks to Shop Stewards, the Applicant had not shown in evidence what had happened after this conversation between Dean and Mkhonza. In essence it was being submitted that there was no evidence that Mr. Dean had spoken to the Shop Stewards to ask them to speak to the workers, as suggested by Mr. Mkhonza in his conversation with Mr. Dean.
10.4 That nothing can be made of the meeting with Mr. Jameel wherein he is alleged to have said he was going to close the factory as this is/was not a statement telling workers to stay at home until further notice.
The Respondent submitted therefore that in the absence of the alleged instruction to the workers, the workers were expected to tender their services after the fire but that they failed to do so. In the absence of such tender, it was submitted, they were not entitled to any wages. The Court was asked to find that the Applicants had failed to prove that the Respondent had stopped them from working until further notice. The Court was further asked to find that it could not make a finding on the stoppage of work because the applicants’ evidence was hearsay. The Court was asked to dismiss the application in these circumstances.
 In the alternative, the Respondent submitted that if the Court was inclined to grant the order prayed for by the Applicants it ought to order that no payment be made pending finalization of the disciplinary process currently taking place in respect of the charges relating to arson and complicity and condonation thereof and that such payment be made to those employees who were found not guilty of the charges.
The Respondent submitted that the fire set to the factory presented a supervening impossibility of performance by the employees and that because they were suspected of having caused the fire it would be unfair to the Respondent for the employees to be paid their wages for a period of idleness for which they were the cause. The Court was referred to the judgment of Brassey A of in Malta Coal Ltd v National Union of Mine Workers (1991) 12 ILJ 929 (ARB) at 929.
 The Court has in its possession the applicant’s founding affidavit the Respondents answering affidavit, the Applicant’s replying affidavit and the evidence led when the matter was referred to oral evidence. These must all be considered by the Court in the assessment of this matter. Having done so we come to the following conclusions: -
12.1 Mr. Mkhonza’s evidence that the employees (the other applicants) were told to stay at home until further notice is hearsay and therefore inadmissible. Mr. Mkhonza has no first-hand knowledge of this information and the applicants failed to file an affidavit by those who had been advised to go home until further notice, confirming those assertions.
12.2 Mr. Mkhonza was asked by the Respondent’s Mr. Dean to come to the Respondent’s premises to address the workers and to tell them to go home until further notice from the Respondent. This evidence was uncontroverted.
12.3 The employees of the Respondent (the other applicants) have been away from work since 4th December 2017, when the factory burnt down. They are currently facing charges relating to participating in unlawful work stoppages, conspiracy to set fire to the factory and deliberate failure to make any effort to extinguish the fire and/or save property. It appears from the papers that the work stoppages complained of occurred during the period prior to the breaking out of the fire. The employees are not facing any charges relating to their absenteeism since 4th December 2017. No such allegation was made by the Respondent and it did not refute the Applicants’ assertions in this regard.
12.4 Although the Respondent alleges that the employees simply stopped attending work because the factory had become inoperable, Mr. Mkhonza’s evidence to the effect that only the packaging section of the factory was most affected by the fire and that other parts of the factory could have continued to function was not controverted. In fact the Respondent stated that if that was the position the employees ought to have tendered their services and that their failure to do so meant that they were not entitled to payment for the period in which they stayed away from work.
 Looking at the totality of the evidence before the Court, and there being no evidence from the Respondent on the circumstances under which the employees stopped attending work from 4th December 2017, it seems to us that the balance of probabilities favours the Applicants’ version that they were advised to stay at home until further notice.
13.1 It seems to us unlikely for an employer to vigorously pursue charges of misconduct against employees and ignore their supposed absenteeism of a month or so.
13.2 While nothing turns on the statement of 7th December by Mr Jameel Akaode that he would/intended to close down the business, with regard to why or how the employees stopped coming to work, it appears to us that a reasonable employer would have used that meeting of the 7th December to ascertain from the Union representing the employees why the employees were not attending work. That the Respondent did not seek to ascertain the whereabouts of the employees seems to us to be consistant with an employer who knew where the “missing” employees were, particularly in view of the fact that other parts of the factory were usable according to Mr Mkhonza.
13.3 It seems reasonable for an employer in the position of the Respondent (whose factory has burnt down and has been extensively damaged) to release the employees until further notice while he assesses the extent of damage and ensures that the workers return to a safe and healthy environment.
 In our view and in the totality of the evidence before us, we find it most probable that the employees were advised by Respondent to stay at home until further notice. In those circumstances the employees could not have been expected to tender their services. The employees were willing and able to work but were told to stay at home until further notice. The Respondent is therefore liable to pay their wages.
 With regard to the claim for leave pay for 2017, we agree with the Respondent’s submission herein. There has been no case made for payment of leave pay at all. Nothing has been placed before the Court to show Respondent’s liability to pay such leave pay. There can therefore be no order granted for leave pay for 2017 in the circumstances.
 What now remains for adjudication is whether the Court should make an order that no payment be made to any employee found guilty of the charges relating to arson and complicity and condonation thereof, as requested by the Respondent.
We are in agreement with the dicta in the case cited by Respondent’s counsel, Malta Coal Ltd and National Union of Mine Workers (1991) 12 ILJ 929 (ARB), “that it would be highly undesirable and certainly unfair, it employees were to be paid their wages during a period of enforced idleness for which they have been the cause.” However, in this matter it has been established that only a certain section of the factory was affected by the fire and that production could continue in other departments but for the fact that the employees were told to go home until further notice. In the circumstances it is not an idleness for which the employees are to blame. The employees ought to be paid their wages.
We therefore make the following order:
- The Respondent is directed to pay the employees their wages for December 2017;
- We make no order as to costs.
The members agree.
PRESIDENT OF THE INDUSTRIAL COURT
For the Applicant: Mr Dlamini
For the Respondent: Mr M. Sibandze