IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO. 182/05
In
the matter between:
JOHN
B. DLAMINI………………….1st
APPLICANT
SIFISO
MASEKO
……………………2nd
APPLICANT
and
THE
MALL SUPER SPAR …………RESPONDENT
CORAM
N.
NKONYANE : ACTING JUDGE
DAN
MANGO: MEMBER
GILBERT
NDZINISA: MEMBER
FOR
APPLICANTS: MR. M. GINA
FOR
RESPONDENT: MR. J. HENWOOD
RULING
20.06.05
The
applicants are both employees of the respondent.
They
brought this application to court on an urgent basis and are seeking
an order in the following terms :-
"
1. Dispensing with the usual forms and procedures and time limits
relating to the institution of proceedings and allowing this matter
to be heard as a matter of urgency, and further wanting the usual
requirements of the Rules of the court regarding notice and service
of application in view of the urgency.
2.
That the respondent be
ordered to re-instate the applicants to their initial job positions,
pending the reviewal of the Labour Commissioner's opinion on their
changed terms and conditions of their employment by the Labour
Commissioner or the Industrial Court as the case may be.
3.
That the respondent be
ordered to pay all benefits that would have accrued in the employment
of the applicants had they not been denied to work which was in
compliance with the Commissioner of Labour's opinion.
4.
That
the respondent be further ordered to withdraw any suspension and
pending disciplinary actions against applicants which emanates from
their compliance with the Labour Commissioner's opinion.
5.
Interdicting and
restraining the respondents from any further actions preventing the
applicants from exercising their duties as cashiers.
6.
Declaring the conduct of
respondent towards the applicant as amounting to an abuse of power.
7.
That
all prayers above operate with immediate interim effect pending the
return date to be appointed by the Honourable court.
8.
That cost is awarded
against the respondent in the event that this application is opposed.
9.
Granting further and or alternative relief."
The
application is supported by the founding affidavit deposed to by John
Bongani Dlamini and the confirmatory affidavit by Sifiso Maseko.
The
respondent filed an answering affidavit and the applicants
replicated.
Although
the matter came before the court on 06.06.05 it was finally argued on
13.06.05.
The
applicants' evidence was that they were transferred from their
positions of cashiers to be shop assistants. They were not happy
about the transfers and they sought the opinion of the Labour
Commissioner on the matter in terms of section 26 of the Employment
Act No.5 of 1980.
The
Labour Commissioner responded and his opinion was that the transfers
were unfair and unlawful.
The
applicants therefore resisted the transfers on the basis of the
Labour Commissioner's opinion that the transfers were unfair and
unlawful.
The
1st applicant in paragraph 14 of the founding affidavit
said on 31.05.2005 he was indefinitely suspended pending the outcome
of a review of the Labour Commissioner's opinion.
In
paragraph 18 it is stated that the matter is urgent because the
respondent intends to initiate a disciplinary hearing against the 2nd
applicant on 08.06.2005.
On
behalf of the respondent it was argued that in terms of the job
descriptions of the applicants, the management had the right to
redeploy the workers from time to time as the business may dictate.
It
was argued that the applicants were being temporarily redeployed to
the bakery department, as there was a shortage.
The
court was also told that one of the applicants, the 1st
applicant was becoming unruly and that his behaviour was detrimental
to the respondent's business.
From
the papers filed in court and from the arguments by the
representatives of the parties it became clear to the court that the
issues involved are very simple and should have been dealt with at
shop floor level.
The
matter, which is central to this application, that is, the lawfulness
or otherwise of the transfers, is presently before the Labour
Commissioner as the respondent applied for a review of the opinion.
Furthermore,
there was a dispute as to whether the movement of the 1st
applicant from the till to the bakery department was a transfer
or a redeployment. The court will be unable therefore to make a
ruling whether the suspension was lawful or not because the issue of
the matter of the movement was also referred to the Labour
Commissioner in the application for review.
It
follows that the court will not be in a position to make a ruling as
asked by applicants' representative, as to what would happen in the
meantime whilst the respondent has applied for a review. If the court
does so, it will mean that it has decided that the applicants were
transferred, whereas the questionwhether their removal was a transfer
or not is pending before the Labour Commissioner.
Good
sense dictates however that the applicants should take the orders of
the employer, more so because in terms of their job descriptions, the
employer has a right to ask them to help in other departments from
time to time as per the requirements of the business.
If
there are shop stewards at the respondent's workplace, the court
would urge them to be seen to be functioning. We reiterate that this
was a matter of simple misunderstanding between the social partners,
which should not have ended in court.
It
seems that the matter was prematurely brought to court by the
applicants whilst it was still pending in the office of the Labour
Commissioner. It is also worth noting that the applicants were aware
that the respondent had applied for the review of the opinion.
This
court will not interfere with the lawful duties of the Labour
Commissioner in terms of the Employment Act.
The
application is accordingly dismissed with no order as to costs.
The
members agree.
N. NKONYANE
ACTING JUDGE -
INDUSTRIAL COURT
