IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO. 78/05
In
the matter between:
ANDREW
McCARTER.....................
APPLICANT
and
HUB
SUPERMARKET (PTY) LTD........RESPONDENT
CORAM
N.
NKONYANE:ACTING JUDGE
DAN
MANGO:MEMBER
GILBERT
NDZINISA:MEMBER
APPLICANT: MR.
P.R. DUNSEITH
FOR
RESPONDENT: ADVOCATE
D. SMITH INSTRUCTED BY
CLOETE
HENWOOD DLAMINI
ASSOCIATED
RULING
30.09.05
The
applicant brought an application for the determination of an
unresolved dispute in terms of Section 85 (2) of the Industrial
Relations Act No. 1 of 2000.
The
applicant in its statement of claim stated that he was summarily
terminated on the 29th
November 2004 on grounds of mismanagement and insubordination. He
further stated that his termination was unfair and unreasonable as
it was contrived and motivated by malice because he exercised his
lawful right to claim his bonus entitlement from the respondent.
The
applicant therefore claims: -
Payment
of terminal benefits,
Payment
of balance of bonus for the years ended 30t
June 2000 to 2003,
Balance
of incentive bonus payable for the financial year ended 30t
June 2004,
Payment
of pro rata bonus for the year ended 30t
June 2005,
Payment
of maximum compensation for unfair dismissal and
Costs.
The
application is opposed by the respondent. The respondent filed a
reply wherein it raised a special plea and also filed a conditional
counter claim.
The
respondent raised a special plea of lack of jurisdiction by this
court to entertain the claims in prayers b) c) and d) as these were
based on specific performance of a commercial contract and/or claims
for damages arising from a breach thereof.
In
the event that the court finds that it has jurisdiction, the
respondent's counterclaim is that the applicant pays back to it a
sum of E267,497.06 being overpayment of the applicant of profit
bonuses during the period 1st
September 1999 until 29th
November 2004.
In
response to the counterclaim by the respondent, the applicant also
raised a point in limine.
The
applicant stated in its papers that the respondent never
reported a dispute pertaining to the alleged overpayment
and that therefore this court was barred from taking cognizance of
such a matter which was not reported as a dispute to the Labour
Commissioner in terms of Part VIII of the Industrial Relations Act
of 2000.
The
court is therefore being called upon to make a ruling whether or not
it has jurisdiction to entertain prayers b) c) and d) of the
applicant's claims, and secondly, whether or not it has jurisdiction
to entertain the respondent's counterclaim.
Both
counsel filed written heads of argument. The court will record its
appreciation as these helped to elucidate and narrow down the
issues.
The
court will address the points of law raised as follows:-
Lack
of jurisdiction to entertain the applicant's claim and
Lack
of jurisdiction to entertain the counterclaim.
1.
Lack
of jurisdiction to entertain prayers b), c|
and d):-
It
was argued on behalf of the respondent that this court has no power
to entertain prayers b) c) and d) of the applicant's claim as these
were claims for specific performance. It was argued that these
prayers were based on specific performance of a commercial contract
and/or claim for damages arising from a breach of the contract. It
was argued that the relief could only be obtainable in a common law
court.
On
behalf of the applicant it was argued to the contrary that this
court does have jurisdiction to entertain all the claims of the
applicant, including prayers b) c) and d). It was argued that the
contract between the parties was not different from any other
contract of employment. It was argued that the bonus part of the
contract was just a term of contract meant to be an incentive and to
cause the applicant to work harder.
It
was conceded on behalf of the respondent that the common law
position that a master cannot be compelled to retain the services of
an employee who had been wrongly dismissed, has since been amended
by statute. It was argued that the position has not, however,
changed with regards to orders for the payment of wages.
With
respect, the court does not agree with counsel's submissions. This
court does have the power to order an employer to make any payment
due to the employee in terms of his or her contract of employment.
This power of the Industrial Court is in terms of Section 16 (9) of
the Industrial Relations Act, No. 1 of 2000 as amended. That section
reads as follows: -
"Compensation
awarded under this Section is in addition to, and not in
substitution for, any severance allowance or
other payment payable to an employee under any law, including any
payment to which an employee is entitled under his or her contract
of
employment
or
an applicable collective agreement" (my emphasis).
In
the present case the application seeks an order for compensation for
unfair dismissal. In terms of this subsection, this court when
making the award for compensation, in the event that he is
successful, the court is empowered to make an order for any other
payment payable to the applicant under any law and any payment to
which he is entitled under his contract of employment with the
respondent.
Section
16 of the Industrial Relations Act, therefore puts the question of
jurisdiction beyond any doubt. It is important to note that that
section is headed "Remedial powers of the court in cases of
dismissal, discipline or other
unlawful disadvantage."
(my emphasis).
The
terms of the contract of employment are not in dispute. If therefore
the applicant was not paid some of the bonuses or was not paid the
correct amount thereof, he was clearly disadvantaged and had the
right in terms of Section 16 (a) of the Industrial Relations Act to
approach this court for a remedy.
The
court was referred by the applicant's counsel to the case of THOMAS
LAWLOR ANDREWS v BAGSHAW HARRIS AND ASSOCIATES (I.C.) CASE NO.
172/99. Although
in that case the issue of jurisdiction did not arise, the court was
referred to it to show that this court had in the past dealt with a
matter involving bonus entitlement. In that case the applicant was
also claiming maximum compensation, terminal benefits and payment of
accrued bonus entitlement.
Furthermore,
in that case, like in the present one, the applicant was contending
that the respondent falsely manipulated the calculations so as to
deprive the applicant of the bonus to which he was entitled.
The
court was also, referred to the case of MGIJIMA
v
EASTERN CAPE APPROPRIATE TECHNOLOGY UNIT AND ANOTHER 2000 (2) SA 291
(TRANSKEI HIGH COURT). In
that case the applicant brought an application for an unfair
dismissal before the High Court. He claimed that the dismissal was
unfair because of an alleged procedural unfairness. He argued that
his Constitutional right to procedural fairness had been violated
and therefore was entitled to bring that labour issue before the
High Court. The question to be decided was whether the High Court or
the Labour Court had jurisdiction to entertain the matter.
Van
ZylJ, at page 302 held as follows:-
"It
is sufficient to state at this stage that labour disputes covered by
the provisions of the Act and for which specific dispute resolution
procedures have been created, which
includes conciliation/arbitration and the Labour Court as an
integral part thereof,
is a 'matter' that is to be determined exclusively by the Labour
Court(my underlining).
On
page 304 the Judge quoted with approval a statement by DIJKHORST
J. IN THE CASE OF INDEPENDENT MUNICIPAL AND ALLIED TRADE UNION v
NORTHERN PRETORIA METROPOLITAN SUBSTRUCTURE AND OTHERS 1999 (2) S.A.
234 (T) at
page 239 that,
"It
was the intention of the Legislature that a specialized set offora
should deal with labour-related matters. To this end it established
an interlinked structure of, inter alia, Trade Unions Employers,
Trade Unions Employers' organization, a variety of Councils, the
Commission for Conciliation, Mediation and Arbitration (CCMA) and
the Labour and Labour Appeal Courts ..."
It
seems clear to the court that, like the creation of the Labour Court
in South Africa, it was also the intention of this country's
legislature that a specialized set of fora should deal with labour
related matters. These fora include the Conciliation, Mediation and
Arbitration Commission (CMAC), the Industrial Court and the
Industrial Court of Appeal.
It
was also argued on behalf of the respondent that the contract
between the parties was commercial in nature and not related to any
dispute or dismissal. It was argued that there was no dispute on the
terms of the contract, but the dispute was on implementation as the
applicant was saying that the respondent misrepresented the figures.
This
argument will be dismissed by the court as it was clearly casuistic.
The applicant's claim, inter alia, is for the payment of balance of
bonus monies. It was open to him to explain to the court how the
underpayment arose, and he said it was due to the respondent's
manipulation of the figures on which the bonus was to be calculated.
That occurred during the subsistence of the employer - employee
relationship between the parties.
From
the foregoing observations, the court will come to the conclusion
that this court does have the jurisdiction to hear the claims in
prayers b), c) and d) of the applicant's application.
2.
Lack
of Jurisdiction to entertain the counterclaim:-
It
was argued on behalf of the applicant that the court does not have
jurisdiction to hear the respondent's counterclaim. Mr. Dunseith
argued that since the issues raised in the counterclaim were not
reported to the Labour commissioner as a dispute, this court was
barred from hearing the counterclaim.
Mr.
Smith argued to the contrary on behalf of the respondent, that this
court has jurisdiction to hear the counterclaim. He submitted that
at common law when a plaintiff submits himself to the jurisdiction
of the court, the court is entitled to deal with all disputes
between the parties. He further argued that the claim for overpaid
profit bonuses was a dispute between the same parties and in respect
of the same subject matter.
The
principles of the common law referred to by Mr. Smith are trite.
They do not however supercede the rules of this court. In terms of
the rules of this court and in particular rule 3 (2) states "the
court may not take cognizance of any dispute which has not been
reported or dealt with in accordance with Part VII of the Act."
Part
VII of the Act has reference to the repealed Industrial Relations
Act No.4 of 1980 dealing with the procedure of bringing an
application to court. The present section is Part VIII of the
Industrial Relations Act No. 1 of 2000. In terms of the provisions
of Part VIII of the Act, a dispute is referred to the Court after it
has been referred to the Labour Commission, transmitted to CMAC for
arbitration and a certificate of unresolved dispute issued.
In
the present case, there was no evidence that the issue of overpaid
profit bonuses was reported to the Labour Commissioner and dealt
with by a CMAC Commissioner and a certificate of unresolved dispute
issued.
The
issues in dispute as they appear from the annexed certificate of
unresolved dispute were:-
UNPAID
INCENTIVE BONUS COMMISSION UP TO 30/06/04
SEVERANCE
ALLOWANCE, NOTICE PAY, ADDITIONAL NOTICE PAY, PRO-RATA BONUS FROM
01/07/04 TO 31/12/04, LEAVE PAY AND 26 MONTHS MAXIMUM COMPENSAITON
FOR UNFAIR DISMISSAL
