IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO.921/88
In
the matter between:
NGWANE
BREWERY (PTY) LTD. APPLICANT
vs
SIMON
MATSABATSA 1st
RESPONDENT
PRESIDENT
OF THE INDUSTRIAL COURT 2ND
RESPONDENT
CORAM:
DUNN
A.C.J.
FOR
APPLICANT: MR.
FLYNN
JUDGMENT
(23.3. 1989)
DUNN
A.C.J.
This
is an application to review and set aside an award of the Industrial
Court delivered on the 3rd November 1988.
The
1st respondent was employed by the applicant as a driver/ salesman
during the period 22nd September 1982 to 26th June 1986. The 1st
respondent was, in the course of his duties, called upon to work
overtime. The extent of the overtime worked by the 1st respondent was
recorded on daily route sheets which were completed and filed with
the applicant. Upon termination of his services the 1st respondent
received and signed for certain terminal benefits which were
calculated by the applicant. It is common cause that the "Separation
Advice Notice" which reflected the 1st respondent's benefits and
which was signed by him and the applicant's Manager did not reflect
any payment for overtime.
On
the 29th December 1986, the 1st respondent filed a report with the
Labour Commissioner in terms of Section 50 as read with Section 51 of
the Industrial Relations Act 1980, in which he demanded payment for
2
overtime
from the applicant. The report did not specify what amount was
claimed and the dates on which it accrued. The Labour Commissioner
was unable to resolve the dispute regarding the failure to pay
overtime and he issued a certificate of an unresolved dispute in
terms of Section 58 of the Act.
The
Commissioner set out at paragraph 4 the reasons why in his opinion
settlement had not been reached between the parties. One of these
reasons was that the 1st respondent was unable to prove the extent of
the overtime he had worked. The 1st respondent then applied to the
Industrial Court for an order directing the applicant to furnish the
route sheets that had been completed between the 22nd September 1982
and June 1986 in order to enable him to calculate the overtime.
When
the application was called in the Industrial Court several
preliminary points were raised on behalf of the present applicant (as
respondent). The President of that Court dealt with and dismissed
each of the points in a ruling which was handed down on the 3rd
November 1988. The present application pertains to that ruling. The
application turns on the question as to precisely what the
"unresolved dispute" between the applicant and the 1st
respondent was. It was argued in the Industrial Court on behalf of
the applicant that the report made by the 1st respondent to the
Commissioner related specifically to non-payment of overtime during
the months of January, February and March 1983 whereas the
application to the Industrial Court related to documents covering the
period 22nd September 1982 to June 1986. The President ruled as
follows on this point:-
I
am of the view that the applicant is entitled to apply to Court at
any stage for Route Sheets for any period in order to check whether
his overtime had been correctly calculated and paid. In the
circumstances I overrule the objection.
3
The
applicant was directed by the president to file the relevant Route
Sheets on or before the 5th December 1988.
The
following is set out in the affidavit of David John Hunt in support
of this application:-
9.
The "route sheets" demanded by the Second Respondent are
presumably route reports routinely completed by the Applicant's
employees in respect of every trip made by the Applicant's vehicles.
The task ordered by the Industrial Court would be extremely difficult
if not impossible to accomplish as I estimate there are more than
10.000 route reports for the period in question which will have to be
sorted out. It will be an enormous task to extract route reports
which may relate to the Second Respondent as they are not in any
particular order and there will be many reports missing or out of
order.
10.
I
am advised and submit that the award of the Industrial Court should
be reviewed and set aside
on the following grounds;
10.1
The Industrial Court took cognisance of a dispute which had not been
reported or dealt with in accordance
with the Industrial Relations Act No.4 of 1980.
10.2
The
Industrial Court is not empowered to order the production of
documents which are not relevant
to a dispute before it.
10.3
The Industrial Court is not entitled to order the production of
documents when there is no proper
dispute before it purely to enable the Applicant before the
Industrial Court to make a case
against a Respondent.
4
The
report filed by the 1st Respondent with the Labour Commissioner reads
as follows:-
My
normal working was 48 hours for which I was paid per week. My usual
starting time was 05.00 a.m. until the end of my sales route. These
routes usually finished from 10.00 p.m. to about 1.00 a.m.
There
my demand is overtime worked.
The
nature of the dispute was set out in the Commissioner's certificate
as "failure to pay overtime" and as earlier pointed out
conciliation could not be achieved because the 1st respondent was not
in a position to state precisely what the extent of the overtime he
had worked was. This was as a direct result of the fact that the
first respondent was not in possession of the route sheets in which
the overtime was recorded. The argument advanced on behalf of the
applicant in support of the contention that the report to the
Commissioner was specifically for failure to pay overtime for the
months of January, February and March 1983 was based on a document
which the applicant stated was an annexure to the 1st respondent's
report. The document is headed "Simon S. Matsabatsa" (the
1st respondent) and contains 3 columns headed Date, Time and Number.
Under the first column various dates in the months of January,
February and March 1983 are set out.
The
document is not referred to in the 1st respondent's report nor is it
marked as an annexure thereto.
The
document is not signed despite provision for a signature under the
endorsement "signed by." Section 51(1) of the Act provides
that a report to the Commissioner shall be made in writing and be
signed by the person making the report.
5
The
document which the applicant states was attached to the report is not
signed and is not mentioned in the report. This document was in my
view properly disregarded when the nature of the dispute was
characterised by the Commissioner. The dispute related to the failure
to pay overtime over the entire period of the 1st respondent's
employment with the applicant and not simply to the 3 months referred
to by the applicant. I find that the dispute was properly before the
Industrial Court and that that Court had jurisdiction to decide the
1st respondent's application. That answers the first ground under
which the applicant seeks to have the award of the Industrial Court
set aside. The second and third grounds can be dealt with together.
The documents required by the 1st respondent are directly relevant to
the dispute between the applicant and the 1st respondent. The extent
of the overtime for which the 1st respondent seeks payment can only
be calculated from the entries on the route sheets. Section 6(2) of
the Act provides:-
For
the purpose of considering any matter before it, the Court may
require any person to:-
(a)
furnish in writing or otherwise, such particulars as the Court may
require in relation to any matter
before it;
(b)
attend before it;
(c)
give evidence on oath or affirmation;
(d)
produce any relevant document.
(my
underlining) I have found that the dispute was properly before the
Industrial Court. The Court was clearly empowered in the
circumstances to order the production of the documents in question.
6
The
application to review and set aside the award/accordingly refused.
The time within which the applicant was to produce the relevant
documents has since expired. It will be necessary for the Industrial
Court to fix a new date. This aspect of the matter is referred back
to the Industrial Court for an order,taking into account such
representations as the parties may wish to make , regarding the date
on or before which production of the documents is to be made.
B.
DUNN
ACTING
CHIEF JUSTICE
