IN THE INDUSTRIAL COURT OF ESWATINI
RULING
Case No. 126/2019
In the matter between:
ISAIH SIFUNDZA Applicant
And
GUARD ALERT SECURITY SERVICES Respondent
Neutral citation: Isaiah Sifundza v Guard Alert Security Services [2020] SZIC 44 (30 April 2020)
Coram: S. NSIBANDE J.P.
(Sitting with N.R. Manana and M.P. Dlamini
Nominated Members of the Court)
Date Heard:30 October 2019
Date Delivered:30 April 2020
RULING
[1]The Applicant applied to the Industrial Court for the determination of an unresolved dispute between himself and the Respondent arising from what he alleges was his suspension without pay from August 2017 to November 2018. He claims payment of his arrear salary for 16 months running from August 2017 to November 2018 in the sum of E35 104.00.
[2] The Respondent appeared when the matter was first called on 10th October 2019 and the parties applied to have the matter postponed to 30th October 2019. It did not appear on 30th October nor was there any explanation for the non-appearance. The Applicant moved his application. The Applicant’s submissions were that the matter be referred to arbitration because;
2.1 the arbitration process would be quicker due to the backlog of cases in the Industrial Court;
2.2 there are no “numerous disputes of fact in the matter”;
2.3 the amount claimed is not substantial;
2.4 the issues for determination are not complex; and
2.5 there will be no prejudice to either party if the matter is referred to arbitration.
[3] Despite the absence of the Respondent, the President is enjoined to consider whether the application has merit and if the matter is one that it should be referred to arbitration. In considering this matter I have read the full pleadings with regard to the application for the determination of unresolved dispute.
[4] The Respondent in its replies alleges that the Applicant abandoned his employment, that he refused to be transferred to Manzini saying he had not found accommodation there. On the contrary the Applicant claims to have been sent home in August 2017 after he had found accommodation but was told by his superiors to return home. He states he was never posted thereafter.
[5] Considering the pleadings it appears to me there may be some disputes of fact that arise from the matter regarding issues surrounding accommodation and whether the Applicant was in fact told to go home in August 2017. In my view these disputes of fact would not be complex and that the skill level of arbitrators at CMAC no longer being in question, the matter could be properly heard at arbitration. This is more so because the amount claimed is also not substantial. (See Nathi Gumede (4th July 2012) in his article – “The attitude of the Industrial Court on Labour Arbitration Referrals.”
[6] I come to the conclusion that this present dispute is one deserving to be referred to arbitration. I therefore make the following order;
(a) The unresolved dispute between the parties is referred to arbitration under the auspices of the Conciliation Mediation and Arbitration Commission.
(b) Each party to pay its own costs.
S. NSIBANDE
PRESIDENT OF THE INDUSTRIAL COURT
For Applicant:Mr. Velaphi Magagula (Labour Law Consultant)
For Respondent:Mr. H.M. Dube (Labour Law Consultant)
