IN
THE INDUSTRIAL COURT OF APPEAL OF SWAZILAND
TIMOTHY
MAKHATHU
Appellant
Vs
J.D.
GROUP OF COMPANIES t/a SCORE FURNISHERS
Respondent
Civ.
Appeal No. 37/2001
Coram SAPIRE,
JP
MATSEBULA,
JA
MAPHALALA,
JA
For
Appellant A. SHABANGU
For
Respondent P. FLYNN
JUDGMENT
(22/04/2002)
The
appellant was the successful plaintiff or claimant in the Industrial
Court. In that Court after citing the parties the appellant stated
that in or about 1st August 1988 he and the respondent entered into
an oral agreement of employment in terms of which the applicant was
the employee and the respondent was the employer. His employment was
in the capacity of Branch Manager for the respondent's Nhlangano
shop. His monthly salary was E4 077.75 payable on or before the end
of each month. During the subsistence of the agreement the
applicant's normal working hours exceeded 40 hours each week. He
completed his probationary period in 1993. He was engaged for a fixed
term and his term of engagement has since expired. It is undisputed
that the applicant was at all material and relevant times an employee
to whom the Employment Act of 1980 applied.
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The
appellant stated in his particulars that on or about the beginning of
March 1993 the respondent represented by General Manager one Chris
Viljoen stopped the applicant from reporting for work until he was
informed of the outcome of investigations into alleged financial
irregularities that had allegedly been brought to the respondent's
attention. The appellant further states that following the suspension
from work by the respondent, the appellant has waited anxiously to be
told of the outcome of the investigations and to be allowed to resume
his duties as manager of the respondent's Nhlangano branch. The
appellant was not paid during this whole period after the suspension.
He claims that he has neither been given notification of his
dismissal nor dealt with in accordance with the disciplinary code and
procedures at the respondent's shops. Paragraph 10 of the particulars
of claim is of crucial importance. It reads:-
"In
the premises the applicant avers that the conduct of the respondent
towards him is not only repudiatory of the employment agreement but
amounts to unfair termination in terms of section 37 of the
employment Act, 1980. "
The
applicant made a complaint and having received a certificate of
unresolved dispute instituted action in the court a quo. His claim
was for:-
1. Payment
of the applicant's wages from April, 1993 to date of judgment and
reinstatement to his job with all benefits. Alternatively,
2.1 An
order declaring the employment agreement terminated with effect from
date of judgment
2.2 An
order directing the respondent to pay to the applicant unpaid salary
due to applicant from April, 1993 to date of judgment.
2.3 Payment
of one month's salary in lieu of notice.
2.4 Payment
of additional notice pay in terms of Section 33 (1) © of the
employment Act 1980 calculated at the rate of an
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equivalent
of four days salary prorata for each completed year of service
excluding the first twelve months.
2.5 Payment
of severance allowance in terms of section 34 of the employment Act,
1980 calculated at the rate of an equivalent of ten (10) days prorata
salary for each completed year of the subsistence of the employment
agreement excluding the first year.
2.6 Payment
of an equivalent of twenty four months salary by the respondent to
the applicant as statutory compensation totalling to E97 866.00
(ninety seven thousand eight hundred sixty six emalangeni).
2.7 Payment
of an equivalent of twelve months salary as special award in the
event the respondent is unable to reinstate the applicant such amount
totalling E48 933.00 (forty eight thousand nine hundred and thirty
three emalangeni).
The
court a quo after considering all the circumstances which were heard
in evidence awarded him six months compensation for unfair dismissal
in the sum of E24,466.50, one month's notice pay in the sum of E4
077.75, additional notice and severance allowance to be calculated in
terms of the Employment Act and presented to court for approval,
within 14 days from the date of judgment. The basis of the appeal
against this judgment by the successful applicant is that the court a
quo erred in law in holding that the agreement of employment between
the appellant and the respondent terminated on the date of the
suspension which was March, 1993. In the judgment it is states:-
"The
court finds in the circumstances that the agreement of employment was
terminated on the date of such suspension which was in March, 1993. "
This
was quite a proper finding to make in view of the allegations in the
particulars of claim. The appellant himself stated that the conduct
in March 1993 amounted to a
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constructive
dismissal. This was the basis of the claim and this was the basis on
which the award was made.
It
is strange that he should now claim additional salary after the date
of termination. The basis of the appellant's claim in this court is
based on Section 37 of the Employment Act, which reads:-
"TERMINATION
OF SER VICES DUE TO EMPLOYER'S CONDUCT.
37. 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, with or without notice, then the services of the employee
shall be deemed to have been unfairly terminated by the employer. "
The
point made by Mr. Shabangu who appeared for the appellant is based on
the words "when the conduct of an employer towards an employee
is proved by that employee........." From this Mr. Shabangu
wishes to argue that the unfair dismissal only takes place after the
matter has been proved and the court has given judgment. This is
clearly an untenable proposition. The unfair dismissal takes place
immediately the conduct of the employer makes it impossible for the
employee to continue work. In the present case that happened when he
was suspended without pay. The fact that he waited until several
years later to place a claim for the unfair dismissal does not
detract one bit from the fact that the unfair dismissal took place at
the time of the suspension. It is also clear that the award made is
inconsistent with a continuation of the contract after 1993 and the
award made is aimed at fully compensating the appellant for not being
in employment for the time that he was suspended.
The
appellant was in fact faced with an election at the time and he
cannot claim both termination benefits and arrear salary for the
period after the termination. The facts in this case are to be
distinguished fro those in Themba Mdluli and others, Jabulani Dlamini
and 67 others v Emaswati Coal (Proprietary) Ltd. Appeal 18/96
Swaziland
5
Court
of Appeal. The point of difference is that in the case cited it was
found that the employer had never terminated the employee's services.
In this case the Appellant's case is that there was a constructive
dismissal.
In
the circumstances the appeal will be dismissed.
SAPIRE,
JP
MATSEBULA,
JA
MAPHALALA,
JA
