1
ICA1096.WPD
IN
THE INDUSTRIAL COURT OF APPEAL OF SWAZILAND
Case
10/96 Thoko Shongwe
V
Allen
Murray
Coram
Sapire, J
P
Dunn,
Matsebula,
J
J
A
For
the Appellant: Mr. S. Motsa
For
the Respondent: Mr. Nsibandze
Judgment
(11/06/1997)
The
Appellant is a domestic worker. Her complaint is that the Respondent
who was her employer, unfairly terminated her employment and
dismissed her from his service on 22nd May 1996. She reported this
"dispute" as she was entitled to do, to the Commissioner of
Labour who, being unable to resolve the matter certified the dispute
as unresolved.
The
appellant then filed an "APPLICATION FOR DETERMINATION OF AN
UNRESOLVED DISPUTE" with the Industrial Court, as the basis of
her institution of proceedings in that court against the Respondent..
The form used for this purpose was that prescribed as " Form B "
under the Rules of the Industrial Court. This, it was contended by
the Respondent, and so argued both in the court a quo and before us,
was inappropriate as the form relates to disputes under Section 57
(1) or 58(1) of the Industrial Relations Act No.l of 1966, (the Act).
The Appellant, the argument is, is not one of the persons entitled in
terms of those sections to report a dispute to the Commissioner:
therefore there was no unresolved dispute to be referred to the
court. This argument was upheld in the court a quo,
2
ICA1096.WPD
and
the Appellant's claim was dismissed. She has taken that decision on
appeal to this court.
The
first point taken by the Respondent is that as the applicant's
representative, one Sipho Motsa is not an admitted practitioner he
has no right to represent the Appellant either in signing her notice
of appeal or in appearing before us. Here section 7 of the Act
governs. The section provides that any party to any proceedings
brought under the Act may be represented by a legal practitioner or
any other person authorised by such party. The term "Court"
in terms of section 2 of the Act includes both the Industrial Court
and the Appeal Court established in terms of the Act Clearly there is
no valid objection to Motsa representing the Respondent.
The
remedies for unfair termination of services are prescribed in section
41 of the Employment Act 1980, (Act No. 5 of 1980).("the
Employment Act)where it is provided that if an employee alleges that
his services have been unfairly terminated, he can file a complaint
with the Labour Commissioner for resolution. If the Commissioner is
successful in achieving a settlement, the agreement is reduced to
writing and the original retained by the Commissioner. If no
settlement is achieved within twenty one days of the complaint being
filed, the complaint is to be treated as an unresolved dispute and "
the Labour Commissioner shall forthwith submit a full report thereon
to the Industrial Court which shall then proceed to deal with the
matter in accordance with the Industrial Relations Act"
The
"Industrial Relations Act" there referred to is of course
the prior Act which was superseded by the Act,. It is however the
provisions of the present act which govern and which are to be
applied..
Part
VIII of the Act deals with "Disputes Procedure". The first
section in this part of the Act is Section 57 which provides that"
a dispute" may only be reported to the Commissioner of Labour by
individuals who or bodies which are included in certain specified
classes of person. The Appellant is not, it is common cause, one of a
class so specified in the section who may report a dispute in terms
thereof.
The
Respondent, in supporting the judgment of the court a quo argued that
the wording of section 57 (1) of the Act by implication repealed the
provisions of the earlier Employment Act and deprived the Appellant
of the remedies afforded her thereunder. In doing so Respondent's
counsel made submissions beyond the issues which we are and the court
a quo was, called upon to decide.
The
point was however raised, and as the court a quo in giving its
"ruling" stated specifically, but without being called upon
to do so, that:
"Section
41 relates to an employee who files his complaint with the
commissioner of Labour who upon failure to secure a settlement files
a report with the Industrial Court For a start the Applicant is not
an employee within the context of section 41. She is expressly
excluded from the
3
ICA1096.WPD
definition
of an employee."
This
mistaken interpretation of the Employment Act even though obiter must
be reconsidered, and corrected, thereby dispelling the impression
created thereby that domestic employees have no protection against
unfair dismissal. The applicant on a proper reading of the Employment
Act is not excluded, expressly or otherwise, from the definition of
an employee, which reads:
"
'Employee' means any person to whom wages are paid or payable under a
contract of employment'
A
domestic worker, such as the Appellant is, meets all the criteria of
the definition, to be included in the term defined.
A
court will not find that a statute or any provision thereof has been
implicitly repealed by later legislation, unless the implication in
inescapable. The intention of the legislature must be clear, and the
intention to repeal must be the only possible interpretation. The
approach of a court in to the inference of repeal of a statute or
some of the provisions thereof is exemplified in
HARRIS
AND OTHERS v MINISTER OF THE INTERIOR AND ANOTHER 1952 (2) SA 428 (A)
The
wording of section 5 of the Act, however confusing it may be in other
respects, makes it clear that the Industrial Court is to have
jurisdiction to hear, determine and grant relief in respect of claims
arising inter alia in terms of the provisions not only of the act
itself, but in terms of other legislation including "an
employment Act". Clearly the terms of the Act and the Employment
Act are to be read, as complementing each other.
Section
41 of the Employment Act reads:
"41
(1) Where an employee alleges that his services have been unfairly
terminated,.............the employee may file a complaint with the
Labour Commissioner, Whereupon the Labour Commissioner, using the
powers accorded him in Part II shall seek to settle the
complaint......,........"
The
section makes no reference to " an undertaking". It is true
as the President of the court a quo observed that in terms of section
2," an undertaking" is defined to exclude domestic work,
this concept is totally irrelevant in determining who is eligible to
lodge a claim under section 41 .There is no basis for
4
ICA1096.WPD
excluding
the Appellant merely because her employment is that of a domestic
worker.
I
have already referred to the further provisions of this section which
are brought into application if the Labour Commissioner is unable to
resolve the dispute, and pointed out that in those circumstances the
Labour Commissioner has to submit a full report to the Industrial
Court which will then proceed to deal with the matter in accordance
with the Industrial Relations Act.
Having
failed to secure a settlement of the complaint, the Commissioner,
issued a certificate under Section 65 (1) of the Act in which he
certified that the complaint that had been "....reported to or
intervened by me on the 3/06/96 under Section 57 (1) or 58 (1) is
hereby certified as an unresolved dispute"
This
certificate is misleading. The Appellant did not herself, as far as
one can tell from the papers, specify that her complaint was made
under any particular section of any particular act. The Labour
Commissioner, who assumed that the complaint was made under the
provisions of 57 (1) of the Act, is responsible for the seemingly
incorrect statement of Appellant's claim The complaint in fact could
only have come to him under the provisions of Section 41 of the
Employment Act.. There is no indication in either statute of any
special procedure for the referral of section 41 complaints to the
Industrial Court. In the absence of any specific provisions to the
contrary, such unresolved disputes can only be dealt with in
accordance with Sections 57 and 58 of the Act. There is no other way
of dealing with matters arising under Section 41 of the Employment
Act provided for. Yet such matters are in terms of Section 41 (3)to
be dealt with "in accordance with the Industrial Relations Act"
The only real basis of the respondent's objection raised in the court
a quo, is that the Appellant's papers do not correctly describe the
statutory provisions under which the claim is made. The provisions of
section 8 of the Act are here apposite and applicable.
Section
8 provides that the Industrial Court may disregard any technical
irregularity which does not or is not likely to result in a
miscarriage of justice. It seems to us that whatever deficiencies
there may be in the Respondent's papers these are capable of
amendment and should not have been allowed to determine the issues.
5
ICA1096.WPD
We
accordingly order that the "ruling" of the court a quo be
set aside, and the matter be remitted to the court a quo for hearing
on the merits. The Respondent may amend her papers as she may be
advised.
S.W.
SAPIRE
B. DUNN J.
M.
MATSEBULA
JUDGE
PRESIDENT
JUDGE OF APPEAL JUDGE OF
APPEAL
