IN THE INDUSTRIAL COURT OF ESWATINI
CASE NO. 184/2016
In the matter between:-
SIYABONGA MAGUDVULELA DLAMINI Applicant
SWAZILAND ELECTRICITY COMPANY Respondent
Neutral citation: Siyabonga Magudvulela Dlamini vs Swaziland Electricity Company 184/2016  SZIC 99 (24 September, 2018)
Coram: N.NKONYANE, J
(Sitting with G. Ndzinisa and S. Mvubu Nominated Members of the Court)
Heard submissions: 10/08/18
Judgement delivered: 24/09/18
SUMMARY---Labour Law---Applicant who was an employee of the Respondent appointed to be a Member of Parliament by His Majesty the King---Respondent putting the Applicant on unpaid leave of absence and stopping the Applicant’s salary without prior consultation with the Applicant---Applicant filing an application before the Court for an order declaring the unilateral decision of the Respondent as constituting an unfair labour practice.
Held---The conduct of the Respondent of subjecting the Applicant to unpaid leave of absence and stopping his salary without prior consultation amounted to an unfair labour practice.
- This is an application that was instituted by the Applicant against the Respondent on Notice of Motion on 19th July 2016.
- The Applicant is seeking an order in the following terms;
- The Applicant is a former employee of the Respondent. He was employed by the Respondent on 01 February 1984 and remained in continuous employment until 31 March 2010 when he entered into a voluntary early retirement agreement. The agreement is attached to the Applicant’s application and is marked Annexure “SMD15”. At the time of his retirement the Applicant was holding the position of Training Officer.
- Prior to the termination of the employment relationship on 31st March 2010, the Applicant was, during October 2008, appointed by His Majesty the King of the Kingdom of ESwatini to serve in the 9th Parliament of the Kingdom of ESwatini as a Senator.
- After the Applicant’s appointment, the Respondent placed him on unpaid leave of absence for the duration of his term in Parliament with effect from 01 January 2009. The correspondence containing that directive is attached to the Applicant’s founding affidavit and is marked Annexure “SMD2”. Accordingly, the Respondent stopped payment of the Applicant’s salary as from January 2009.
- The Applicant was aggrieved by the Respondent’s conduct of stopping his salary without any prior consultation. He reported the matter to the Conciliation, Mediation and Arbitration Commission (CMAC) as an unfair labour practice. At CMAC the parties signed a memorandum of agreement and they agreed to have the dispute referred back for further negotiations. The negotiations did not yield any positive results. The Applicant eventually retired in March 2010.
- The Applicant in his founding affidavit averred that he continued to report for duty from January 2009 until March 2010 when he took the voluntary early retirement package. He therefore demanded to be paid his salary for the period from January 2009 up to March 2010. The Respondent refused to yield to the Applicant’s demand. The Applicant thereafter reported the dispute to CMAC. The dispute could not be resolved by conciliation and the Commission issued a certificate of unresolved dispute.
- ISSUES FOR DETERMINATION:
The issues for determination are fairly simple ones and they are;
- Unpaid Leave of Absence Policy:-
The evidence before the Court revealed that the Applicant is a member of the union that is recognized by the Respondent by the name of SESMAWU.There is therefore a Collective Agreement between the parties.The Applicant told the Court that there is no provision for unpaid leave of absence in the Collective Agreement.
- The Respondent in its answering affidavit stated that there was such a policy in place. In paragraph 13 of the answering affidavit the Respondent stated that it was “merely implementing a standing policy that employees appointed to parliament will be placed on unpaid leave for the duration of their appointment”. Again, in paragraph16 the Respondent stated that “this was in accordance with the Respondent’s internal policies in particular Policy No. 662 of the policy relating to guidelines for handling external appointments’’.
The word “External” is not typed but is written in long hand.There is no signature of the person who made the correction. As already pointed out, the Respondent’s establishment has a unionized environment.There is no evidence on this document as to when did it come into operation.The document is not signed by management and the Union representatives.
- During the oral evidence, the Applicant denied knowledge of this document. He told the Court that there was no way that this document could have come into operation without his knowledge as the Training Officer. He told the Court that as part of his duties, he is responsible for the induction of new employees and that as part of that process, he teaches the new employees the company policies. He said he did not recall this document being given to him to teach the new employees of the company.
- The Respondent led two witnesses, Sikelela Patrick Qwabe and Sifiso Patrick Dlamini. Sikelela Patrick Qwabe, (RW1), only testified about the issue surrounding the locking of the Applicant’s office. He denied that the Applicant was locked out of his office.
- Sifiso Patrick Dlamini, (RW2), told the Court in his evidence in chief that there was a policy in place regulating the external appointments at the workplace. He told the Court that the policy was put in place before the appointment of the Applicant. He admitted that there was another employee of the Respondent who was appointed to the Swazi National Council Standing Committee (SNC) and later to the House of Senate, who was paid his full salary during the terms of his appointment. He said the name of this employee was Chief Ndzameya Nhlabatsi. He said with Chief Ndzameya Nhlabatsi there was some kind of arrangement between the parties but did not disclose what the arrangement was. RW2 said the extract of the policy was the one attached to the papers before Court and marked Annexure “AM1”. RW2 also referred to the Collective Agreement signed by the parties on 10 July 2007.
“APPOINTMENT AS A SENATOR IN THE 9TH PARLIAMENT.
The Management of SEC is pleased to know of your recent appointment as a Senator in the 9th Parliament of Swaziland.
In keeping with business norm and practice we shall release you on unpaid leave of absence for the duration of your appointment with effect from the 1st of January 2009.
Kindly liaise with the undersigned and your supervisor for purposes of handing over the functions of your office.
We once again congratulate and wish you a very successful and productive period as a legislator of the Kingdom of Swaziland.
GM – Corporate Services
cc. Executive Management
Manager- Training & Development
Manager – HR Services
When the issue of Chief Ndzameya Nhlabatsi was put to RW2 during cross examination, RW2 stated that Chief Ndzameya Nhlabatsi was an old man, honest and was able to juggle between the positions. There was no evidence that the Applicant could not do the same as Chief Ndzameya Nhlabatsi did. There is no doubt to the Court that the conduct of the Respondent of giving different treatment to similarly circumstanced employees amounted to unfair discrimination.
24. In his evidence in chief, RW2 told the Court that with Chief Ndzameya Nhlabatsi, there was an arrangement that the parties agreed to. RW2 failed to tell the Court why a similar arrangement was not made with the Applicant.
25. From the evidence before the Court, we have no hesitation in reaching the conclusion that there was no company policy of unpaid leave of absence in place in October 2008 when the Applicant was appointed to be a Member of Parliament because of the following reasons;
25.1 RW2 failed to tell the Court the date on which such policy came into operation at the Respondent’s establishment.
25.2 The Respondent in its letter that was written to the Applicant by RW2 on 28 October 2008 telling him that he was being released on unpaid leave of absence, did not refer to any company policy.
25.3 The conduct of the Respondent of seeking advice from the King’s Office on the matter was proof that there was no such policy in place within its establishment.
25.4 The evidence that another employee of the Respondent, Chief Ndzameya Nhlabatsi, was not subjected to the provisions of this policy showed that there was no such policy in place.
25.5 After a long postponement to allow the Respondent’s attorney to find the document, he failed to do so and informed the Court that he was unable to find a hard copy of the document. There was no evidence that the document filed in Court, ANNEXURE “AM1” was agreed to, adopted and signed by the parties.
WAS THERE CONSULTATION BEFORE THE APPLICANT WAS PLACED ON UNPAID LEAVE OF ABSENCE:-
26. There was no evidence before the Court that the Applicant was called by the Respondent for consultation on the way forward, following his appointment to the House of Senate. There was no evidence of any consultation between the Applicant and his Supervisor, RW1, Mr. Sikelela Patrick Qwabe or the Human Resources Manager. Instead, the Respondent caused the letter dated 28 October 2008 to be written to the Applicant telling him that he would be released on unpaid leave of absence.
27. This letter by the Respondent caused the Applicant to write to RW2 requesting that a meeting be held by the parties to discuss the issue of his appointment as it had become clear that the Respondent had taken a unilateral decision on the matter. The Applicant’s letter is marked ANNEXURE “SMD 3” of the founding affidavit. (Page twenty-three of the Book of Pleadings).
28. The Respondent did not respond to the Applicant’s letter dated 04th December 2008. That conduct by the Respondent caused the Applicant to write another letter dated 30 January 2009. There was again no response by the Respondent and the Applicant decided to seek the intervention of the union by letter dated 13 February 2009, ANNEXURE SMD 5 of the founding affidavit. (Page 26 of the Book of Pleadings). It was only after the union’s involvement that the parties met in RW2’s office on 17 February 2009.
29. When the parties met on 17 February 2009, the Respondent’s letter dated 28 October 2008 had not been withdrawn by the Respondent. The consultation was therefore not in good faith as the Respondent had already taken a position on the matter that it would release the Applicant on unpaid leave of absence. Further, at that point, the salary of the Applicant had been stopped. The salary of the Applicant was also stopped without any prior consultation. It was clearly unfair on the part of the Applicant to have his salary stopped without any prior consultation. It is an unfair labour practice for an employer to make a unilateral decision that adversely affects the interests of an employee.
30. The Industrial Court has an equitable jurisdiction which requires it to promote fairness and equity in labour relations. (See: Section 4 (1) of the Industrial Relations Act N0.1 of 2000 as amended).
31. When RW2 was asked if he did consult the Applicant, he gave a crafty answer and said, “It depends on how one defines consultations.” RW2 told the Court that;
“……whilst in my view it was not necessary to do so, I personally spoke to the Applicant at the Royal Villas……”
The evidence revealed that RW2 and the Applicant met briefly at the Royal Villas and RW2 congratulated the Applicant for his appointment. It was not a meeting scheduled by the Respondent for consultation purposes.
32. During cross examination, RW2 told the Court that the decision to put the Applicant on unpaid leave of absence was taken at management level. There was no evidence that the Applicant or the Union was consulted prior to the decision being taken and implemented.
ANALYSIS OF THE EVIDENCE AND THE LAW APPLICABLE:-
33. The Applicant’s case before the Court was simply that the Respondent adopted and subjected him to unfair labour practice by placing him on unpaid leave of absence without prior consultation and also stopped his salary without prior consultation. Indeed, there was no evidence that the Applicant was consulted before the Respondent told him of its decision to release him on unpaid leave of absence through its letter dated 28 October 2008.
34. The Respondent’s case was that it merely implemented a standing policy that employees appointed to Parliament would be placed on unpaid leave for the duration of their appointments. (See: Paragraph 13 of the Respondent’s answering affidavit.) The Respondent was specific as to which policy it was relying upon. It stated in paragraph 16 of the answering affidavit that it was acting in terms of its internal policies, in particular Policy number 662 of the policy relating to guidelines for handling external appointments. (See:ANNEXURE AM1). ANNEXURE AM1 is an extract. The Respondent failed to produce the complete document. The Respondent also failed to tell the Court as to when was the document approved and adopted at the Respondent’s place.
35. The Applicant having denied the existence of the policy at the workplace, the evidentiary burden shifted to the Respondent to prove that the policy existed at the time of the Applicant’s appointment. The Learned Author, John Grogan: Workplace Law, 8th edition at page 158 stated the following when dealing with the issue of rules at the workplace;
“When employees deny the existence of the rule upon which the employer relies, the employer is required to satisfy the Court or arbitrator that the rule exists, and that the employee was or should have been aware of it.”
In casu, RW2 failed to tell the Court when did the policy come into operation at the Respondent’s place.
36. In its written submissions and in his oral submissions, the Respondent’s attorney argued that there was no obligation on the part of the Respondent to pay any salary to the Applicant as the Applicant had already breached his terms and conditions of employment. It was argued further that the Applicant cannot on the one hand breach his contract of employment and then sue the employer to pay him in terms of the contract notwithstanding the breach. In support of his submissions, the Respondent’s attorney relied on R.H. Christie, The Law of Contract, in South Africa, 1983 at page 482 where the Learned Author stated that;
“…….Conversely, the party who has caused the other’s breach by making it impossible or nugatory to perform or by failing to carry out the necessary preliminaries which rest upon him cannot found any claim on the breach he has thus precipitated.”
It was further argued on behalf of the Respondent that the Applicant was heavily engaged in parliamentary work such that it would have been physically impossible for him to actually be at work at the same time.
37. On behalf of the Applicant it was argued that it was not in dispute that the Applicant remained an employee of the Respondent up to 22 March 2010 when he took early retirement and the employment relationship was terminated by mutual agreement.
38. The argument by the Respondent is not supported by the evidence before the Court. The evidence before the Court revealed that on 28 October 2008 after the Respondent learnt of the Applicant’s appointment, it wrote a letter to him telling him that he would be released on unpaid leave of absence for the duration of his appointment to Parliament with effect from 01st January 2009. It was therefore, the Respondent that first committed a breach of the terms of the employment relationship between the parties by stopping the salary of the Applicant unilaterally, without any prior consultation.
39. By stopping the Applicant’s salary without prior consultation, the Respondent created an environment in which it would be impossible for the Applicant to fulfill his contractual duties to the employer. The employer cannot be allowed now to benefit from its own unlawful conduct. Dealing with a similar question, the Court in the case of Raymond Mhlanga V Swaziland Government & Another, case number 161/09 (IC) stated as follows in paragraph 15 that;
“When the Applicant was not at work he did not render any services to the Respondent. It would therefore be unfair to order the 1st Respondent to pay the Applicant any money for the period that he did not render any services. However, if the Applicant was unable to render his service because of the conduct of the 1st Respondent (employer), it would also be unfair that he is not paid his arrear salary for the period that he was not at work because of the conduct of the 1st Respondent.”
Similarly, in casu, the Respondent cannot successfully argue that it is not obliged to pay the Applicant his arrear salary because he was not reporting for duty. The Applicant did not report for duty because of the Respondent’s unlawful conduct of unilaterally stopping his salary.
40. John Grogan (supra) at page 54 stated that;
“The employee’s duty to render service is the corollary of the employer’s duty to remunerate, the maxim being ‘no work no pay’. The reverse also applies: ‘no pay, no work; ie employees who have not been paid may legitimately refuse to work without breaching their contracts.”
41. The Respondent’s attorney put emphasis on the fact that the Applicant contradicted himself on the issue of when did the Applicant stop coming to work. In his founding affidavit the Applicant averred that he was reporting for duty on a daily basis until the retirement date in March 2010. Oral evidence however revealed that the Applicant attended Parliament twice a week from 2:30 P.M.
42. The Applicant also told the Court in his oral evidence that he stopped going to work in March 2009 because he found his office locked. He also said that his computer was taken away by the Respondent. RW1, Sikelela Patrick Qwabe denied that the Applicant’s office was locked by the Respondent. He told the Court that there were two doors leading to the Applicant’s office and that locking the Applicants office could have meant locking the secretary out also. RW1 agreed during cross examination that at the time relevant to the issue before the Court, he was no longer stationed at Matsapha but was based at the Head Office in Mbabane. RW1’ evidence on this issue was therefore not reliable.
43. The Respondent’s attorney argued before the Court that since the Applicant gave oral evidence that was contradictory to his founding affidavit, the Court should dismiss the Applicant’s application as a whole especially because there was no application to amend the prayers to reflect that the Applicant was seeking payment only for the days on which he reported for duty, and not for the whole period of January 2009 to March 2010.
44. The Applicant however did not contradict himself on the issue of unpaid leave of absence and unfair labour practice, which is the main prayer in his application. Once the Applicant succeeds on the main prayer, the Court may issue any further and/or alternative relief.
45. From the evidence before the Court, it was clear that the Applicant did not render his services to the Respondent because of the unlawful conduct by the Respondent. The Respondent stopped the Applicant’s salary unilaterally without any prior consultation. It was the Respondent that breached the terms and conditions of employment. From 04 December 2008 the Applicant requested to have consultation with the Respondent but the Respondent did not oblige. It was only after the Applicant had roped in the Union that a meeting was finally held at RW2’s office on 17 February 2009.
46. Once the Court finds that there was no legal basis for stopping the Applicant’s salary, the Court must order that the arrear salary is due and must be paid by the Respondent. That the Applicant contradicted himself on the issue whether he was reporting for duty daily or on some days in a week does not make the illegality of the Respondent’s conduct any less. The Respondent placed the Applicant on unpaid leave of absence for the duration of his Parliamentary term. Fortunately for the Applicant there was a voluntary early retirement opportunity that opened in January 2010. The Applicant took up this opportunity and his application was approved by the Executive Management Committee of the Respondent on 16 March 2010. The Applicant is not claiming payment for the duration of term in Parliament, but only up to March 2010 when he retired from the Respondent’s employment.
47. The Respondent’s defence that Chief Ndzameya Nhlabatsi was paid whilst he was both its employee and Member of Parliament because there was a special arrangement does not take its case any further. It only makes things worse because it proves that the Applicant was discriminated against by the Respondent. To give different treatment to employees in similar circumstances is discrimination and it amounts to unfair labour practice.
48. There is no doubt to the Court that there was unfair labour practice in the manner that the Applicant was treated by the Respondent because;
48.1 The Applicant was not consulted by the Respondent prior to his salary being stopped.
48.2 The Respondent relied on a policy that was not yet operational as there was no evidence that it had been approved and adopted at that time (Annexure AM1).
48.3 The Respondent’s conduct was discriminatory as it did not treat the appointment of Chief Ndzameya Nhlabatsi in like manner.
49. In prayer 2 the Applicant applied that the Respondent be ordered to pay him arrear salaries from January 2009 up March 2010 when he took early retirement.
50. The Applicant told the Court in chief that he continued to report for duty until April 2009 when found his computer missing and that thereafter his office was locked. Because of this evidence by the Applicant the Respondent argued that the Applicant’s application should be dismissed as he did not mention that evidence in his founding affidavit. Further, the Respondent applied that the Applicant’s application be dismissed because he did not amend his papers to claim a pro-rata payment taking into account that the oral evidence revealed that he was not reporting for duty on a daily basis, but he was in Parliament on some other days of the week.
51. During cross examination the Applicant confirmed that he last attended to work in April 2009 after he found his office locked and he realized that he was no longer wanted there anymore.
52. The Applicant having succeeded in payer 1, the question now is; should the Court make an order that he be paid for the whole period from January 2009 to March 2010 even when in his own evidence he told the Court that he stopped reporting for work in April 2009.
53. It is critical to clearly appreciate the Applicant’s application before the Court. The Applicant’s case is that he stopped reporting for duty because of the unlawful conduct of the Respondent of stopping his salary without any prior consultation. Secondly, the Applicant’s evidence revealed that there was another employee of the Respondent, Chief Ndzameya Nhlabatsi who was also appointed to be a Member of Parliament but his salary was not stopped. The Applicant’s therefore claims that he was unfairly discriminated against and that the Respondent acted in terms of a policy document that was not yet operational. The Applicant has not filed a claim for compensation based on constructive dismissal by the Respondent.
54. The Respondent did not deny that whilst Chief Ndzameya Nhlabatsi was a Member of Parliament he was paid his full salary. RW2 told the Court that there was an arrangement that was reached between the Respondent and Chief Ndzameya Nhlabatsi. RW2 failed to tell the Court why the same arrangement was not made with the Applicant.
55. The Applicant however told the Court that he stopped going to work in April 2009. To order the Respondent to pay salaries even for the period that the Applicant did not work would be unfair to the Respondent.
56. The Clerk to Parliament, Ndvuna Dlamini, told the Court in his affidavit that Parliament does not sit in January and that it is usually officially opened during the month of February. He stated further that even after the official opening, Parliament does resume business immediately after that but it usually sits to debate the Appropriation Bill and Budget Speech during the month of March. It was therefore possible for the Applicant to report for duty every day during the period between January 2009 and April 2009 as Parliament business had not yet begun in earnest. The Respondent as the employer had at its disposal the time sheets to refer to in order disprove the Applicant’s evidence that he was reporting for duty every day during this period, but it failed to do so.
57. Taking into account all the evidence before the Court, the circumstances of the case, the interest of justice fairness and equity, the Court will make an order in terms of prayers 1, 2 and 3 of the Notice of Motion. The arrear salaries in terms of prayer 2 will be only for the period of January 2009 up to April 2009 when the Applicant stopped reporting for duty.
58. The members agree.
JUDGE OF THE INDUSTRIAL COURT OF ESWATINI
For Applicant:Mr. S.M. Simelane
(Attorney at Simelane-Mtshali Attorneys)
For Respondent:Mr. M. Sibandze
(Attorney at Musa M. Sibandze Attorneys)