IN THE INDUSTRIAL COURT OF ESWATINI
CASE NO. 78/2011
In the matter between:-
MANDLENKOSI REFLEX SIMELANE Applicant
TIMBERCRAFT (PTY) LTD Respondent
Neutral citation: Mandlenkosi Reflex Simelane vs Timbercraft (PTY) Ltd 78/2011  SZIC 61 (15 July, 2019)
Coram: N.NKONYANE, J
(Sitting with G. Ndzinisa and S. Mvubu Nominated Members of the Court)
Heard submissions: 12/06/19
Judgement delivered: 15/07/19
SUMMARY---Labour law---Applicant employed by the Respondent as a Carpenter---Applicant claiming that the employer was shouting at him in front of other employees---Applicant resigning from employment on grounds of constructive dismissal---Requirements for constructive dismissal---Provisions of Section 37 of the Employment Act No. 5 0f 1980---Burden of proof in cases of constructive dismissal.
Held---To discharge the burden of proof that an employee was constructively dismissed, that employee must prove that the employer behaved in a deliberately oppressive manner and left the employee with no option but to resign.
Held---The Applicant failed to prove that continued employment would have been intolerable and therefore had no option but to resign---Applicant’s application accordingly dismissed.
- The Applicant is an adult male person of Hawane, in the Hhhho Region.
- The Respondent is a company duly incorporated in terms of the Companies Law of the Kingdom of ESwatini carrying on business at Ngwenya in the Hhohho Region.
- The Applicant is a former employee of the Respondent. He stopped working for the Respondent in December 2009 after he wrote a letter of resignation dated 18th December 2009, Annexure “A” alleging that the employer’s hostile conduct forced him to resign.
- The Applicant reported the matter to the Conciliation, Mediation and Arbitration Commission (CMAC) as a dispute. The dispute could not be resolved by Conciliation and a certificate of unresolved dispute was issued by the Commission. The certificate is attached to the application and is marked Annexure “B”.
- The Applicant thereafter instituted the present application for determination of the unresolved dispute by the Court in terms of Section 85 (2) of the Industrial Relations Act No.1 of 2000 as amended. The Applicant is seeking payment of terminal benefits and maximum compensation.
- The Applicant’s application was opposed by the Respondent and a Reply was duly filed on its behalf. The Applicant thereafter filed his Replication thereto.
- Four witnesses testified before the Court. The Applicant was the sole witness for his case. On behalf of the Respondent three witnesses were led in evidence before the Court. The evidence revealed that the Applicant first started to work for the Respondent in 1995 as an Artisan Assistant or Labourer. The Applicant was still attending school at that time and would render services to the Respondent during school holidays. The employer would give him money to assist in the payment of school fees and uniform. After the Applicant completed school, he continued to work for the Respondent until he was employed on a full- time basis in 2002.
- The Applicant was good at his work and he was promoted to the position of Carpenter. The Applicant asked the employer to write a letter of recommendation for him in order to go and do a grade test at the Swaziland College of Technology (“SCOT”). Indeed, the Applicant went to SCOT to do a grade test and he passed and obtained a Grade 2 Trade Certificate. He said after he had obtained his trade certificate the employment relationship between him and the employer, Mr. William Gray changed. The Applicant told the Court that Mr. William Gray and his son, Ali Gray would shout at him in front of other workers.
- The Applicant also told the Court that he became a sickly person and would be unable to report for duty from time to time. He said he attended the government hospital and also consulted traditional healers. He told the Court that when he attended the hospital, he would bring a medical report to work, and that when he had attended a traditional healer, he would ask a colleague to report his absence to the employer.
- The Applicant told the Court that his ill-treatment by the employer got worse during 2006. He said during this period he lost his father who had been sick for a long time. He said the employer promised to give him financial assistance in the sum of E5,000.00 to cater for funeral expenses. He said when he came to collect the money the employer reneged and did not give him the money.
- The Applicant also told the Court of another incidence where he went to fit a kitchen unit for a customer and the customer complained about the job. The Applicant told the Court that he noticed that the drawing of the kitchen unit had some mistakes. He said he told Mr. William Gray about it but he told him to go and fit it. The Applicant said the job was not satisfactory and the customer complained when he came back to the workshop to report, Mr. Gray shouted at him.
- In January 2008, the Applicant wrote a letter of resignation dated 29th January 2008. (See: Page 29 of the Respondent’s Bundle of Documents). The Applicant resigned on a Friday but came back to work on Monday. The Applicant said he decided to come back to work because he wanted to finish a certain task that he had started. He said the employer talked to him and convinced him not to go away and that was the reason that he decided to stay.
- During cross examination the Applicant conceded that there was no legal obligation on the employer to grant him any loan as there was no loan policy at the workplace. The Applicant denied that he was an impulsive and irritable employee. He also denied that after he obtained his trade certificate from SCOT, he became confrontational. When pressed further on this issue, the Applicant told the Court that the confrontation between him and the employer was caused by the fact that the employer would agree to give him a loan but later changed his mind.
- On behalf of the Respondent RW1, Vinah Mamba – Gray told the Court that she is married to the owner of the Respondent Company. She told the Court that she was usually at home most of the time, and not at the factory floor. She said she recalled only one instance when the Applicant came to borrow money from her husband, Mr. William Gray. She said her husband was unable to assist the Applicant on that day. She said upon her husband’s refusal there was an altercation that ensued. She said that was the only time that she saw the two having an argument.
- During cross examination RW1 confirmed that the Applicant did come to Mr. William Gray to demand some money.
- RW2, William Gray told the Court that the Applicant started to work for him when he was still at school. He said the Applicant rendered services during the school holidays in order to earn money to pay school fees. He said after he completed school, he started to work on full time basis. RW2 said the Applicant was good at his job. RW2 denied that he verbally abused the Applicant. He said the Applicant would disappear from work and upon return claim that he was in hospital. He said the Applicant’s illness was unknown to him and it remained a mystery up to the present day and that the Applicant failed to produce medical certificates.
“When the conduct of an employer towards an employee is proved by that employee to have been such that the employee can no longer reasonably be expected to continue in his employment and accordingly leaves his employment, whether with or without notice, then the services of the employee shall be deemed to have been unfairly terminated by his employer.”
By employing the words “is proved by that employee” this section of the law shifts the burden of proof to the employee to prove on a balance of probabilities that the conduct of the employer was such that he could no longer reasonably be expected to continue in his employment.
“The test for whether the employer has rendered the prospects of continuation of the employment relationship intolerable, is objective-ie the existence of a constructive dismissal cannot be determined from the state of mind of the employee alone.”
30. Secondly, after the Applicant resigned in January 2008, he came back on Monday and resumed his duties.This conduct by the Applicant was not consistent with his claim of oppressive or intolerable working conditions at the Respondent’s establishment.The Applicant said he returned to his workplace because he wanted to finish a certain task that he had started.The evidence revealed however that the Applicant continued to work for about two years as he again resigned in December 2009.
33. The Court will accept the evidence that the Applicant was an impulsive person and became confrontational after RW2 refused to grant him loans on two occasions and when he failed to accede to the Applicant’s request for a salary raise after the Applicant obtained a Grade 2 trade certificate. The evidence that the Applicant was the highest paid employee was not denied. There was no evidence that the Applicant was being paid a salary that was below the minimum stipulated in the Wages Regulation for that industry.
34. The Applicant’s claim is premised upon constructive dismissal. The onus was on the Applicant to establish that there was constructive dismissal. (See: Halgreen V Natal Building Society (1986) 7 ILJ 769 (IC).
35. Looking at the evidence as a whole and also taking into account all the circumstances of the case, the Court is unable to come to the conclusion that the Applicant was able to establish that there was constructive dismissal in this case. The Court will accordingly make the following order;
- The Applicant’s application is dismissed.
- There is no order as to costs.
36. The members agree.
JUDGE OF THE INDUSTRIAL COURT OF ESWATINI
For Applicant:Mr. M.M. Dlamini
(Attorney at Robinson Bertram)
For Respondent:Mr. S. Dlamini
(Attorney at Musa M. Sibandze Attorneys)