IN THE INDUSTRIAL COURT OF ESWATINI
RULING
Case No. 223/2019
In the matter between:
SIMANGELE SHABANGU Applicant
And
SIPHILILE MATERNAL AND CHILD HEALTH Respondent
Neutral citation: Simangele Shabangu v Siphilile Maternal and Child Health [223/2019] [2020] SZIC 45 (30 April 2020)
Coram: S. NSIBANDE J.P.
(Sitting with N.R. Manana and M.P. Dlamini
Nominated Members of the Court)
Date Heard: 15 October 2019
Date Delivered: 30 April 2020
RULING
[1] The Applicant, a former employee of the Respondent, has applied to the President for the referral of her application for the determination of an unresolved dispute to the Conciliation Mediation and Arbitration Commission (CMAC) for arbitration.
[2] The Applicant claims that the termination of her employment was both procedurally and substantively unfair because she did not commit any disciplinary offence that warranted her to be disciplined or dismissed; she was denied the right to representation and after she requested a postponement, the Respondent continued to hold the hearing in her absence; and that she was not given the opportunity to be heard because her disciplinary hearing was held in her absence. She therefore claims terminal benefits in the sum of E9068.00 and 12 months salary as compensation for unfair dismissal in the sum of E30 360.00. Her total claim amounts to E39428.00 (thirty-nine Thousand four hundred and twenty-eight Emalangeni).
[3] The Respondent in its reply, denies that Applicant was unfairly dismissed. It avers that Applicant was charged with four instances of misconduct and invited to a disciplinary hearing; that she caused the hearing to be postponed a number of times and that when the chairman refused a further postponement, Applicant chose to walk out of the hearing abandoning the rights granted to her. It avers that the allegations against her were proved on a balance of probabilities and therefore her dismissal was both procedurally and substantively fair and justified.
[4] The application for referral is based on the following;
4.1 the amount is not complex;
4.2 the amount claimed is not substantial;
4.3 the Respondent will suffer no prejudice if the matter is referred to arbitration; and
4.4 the matter can be determined more speedily through arbitration.
[5] The Respondent did not file any papers opposing the application nor did it appear before Court when the matter was called on 15th October 2019. There was no explanation for the non-appearance whereas the Court was satisfied that the application was properly served on the Respondent through its attorneys of record. Nevertheless it is the duty of the President to weigh the benefits of CMAC arbitration against the more formal judicial determination of the Industrial Court. (Sydney Mkhabela v Maxi-Prest Tyres IC Case No. 29/2005).
[6] On the facts of the present matter it appears from the annexures to the Respondent’s Reply that various disputes of facts on the merits of the charges the Applicant faced will arise. In particular the accusation of insolence and that of placing the organisation into disrepute appear to me, to be mired with a number of potential disputes of fact that are somewhat complex. I consider that a finding of fact on these issues could prejudice the Respondent in that it would not be able to appeal against the findings of the arbitrator.
[7] It is my view that in the circumstances of this case it would be unfair and prejudicial to force a party that has not specifically consented to arbitration in the face of potential complex disputes of fact.
[8] In the circumstances the application for referral is dismissed. I make no order with regard to costs.
S. NSIBANDE
PRESIDENT OF THE INDUSTRIAL COURT
For Applicant: Mr E.B. Dlamini (Ephraim Bongani Dlamini
Labour Law Consultant)
For Respondent: Mr B.C. Dlamini Attorneys (not before Court)
