IN THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO. 215/2001
In
the matter between:
BHEKI
ZWANE AND SEVEN OTHERS…………………………………………...APPLICANT
and
S.O.
S. CHILDREN'S VILLAGE ASSOCIATION OF SWAZILAND………….RESPONDENT
CORAM:
NDERI
NDUMA:PRESIDENT
JOSIAH
YENDE:MEMBER
NICHOLAS MANANA: MEMBER
FOR APPLICANT:P.
R. DUMSEITH
FOR RESPONDENT:
Z. JELE
JUDGEMENT
- 13/10/05
The
eight Applicants are professional teachers currently working in
different institutions in the country.
At
the time the dispute arose all the eight Applicants were stationed at
the Herman Gmeiner High School, Sidwashini South Mbabane (hereinafter
S.O.S. School).
The
school is owned and run by the S.O.S. Children's Village Association
of Swaziland, a voluntary charitable association duly constituted
with power to sue and be sued, and having its principal place of
business at the school, Sidwashini South Mbabane.
The
Applicants were employed by the Teaching Service Commission of
Swaziland and seconded to the S.O.S School by agreement between the
Swaziland Government and the Respondent. These are Bheki Zwane, Luke
Malindzisa, Emmanuel Odame, Augustine Fiagbor, Sizakele Vilakati,
Lindiwe Christie, Freddie Dladla and Richard Simelane.
Seven
of the Applicants were seconded to S.O.S. as ordinary teachers except
one Mr. Freddie Dladla, who came to S.O.S. as a head of department.
It is common cause that the Teaching Service Commission (hereinafter
T.S.C.) paid head of department allowance (hereinafter H.O.D.
allowance) to the head of departments over and above the basic
salary. The administrators of S.O.S. School were aware of the fact at
the time of the secondment.
By
a written agreement dated the 31st May 1999, the
Respondent appointed the eight Applicants to the positions of head of
departments backdated to the 1st January 1999.
The
Applicants had infact commenced their duties as head of departments
in January, the appointment letter was a mere formality.
In
terms thereof, each of the Applicants was designated a specific
department to head, manage and oversee with specific duties as
communicated verbally by the head teacher and the Director of the
Respondent and later captured in the letter of appointment as
summarized below:
1.
The appointment was to commence beginning of January 1999 with a
monthly allowance of E300.00. Some of the Applicants received E400.00
monthly allowance.
2.
The position was to be reviewed on a yearly basis as is normal in the
S.O.S Appraisal System.
3.
The school expressed great confidence and faith in each of the
appointee's ability to fulfill the new role.
RESPONSIBILITIES
The
head of department was to:
(a)
Lead the department by good example, teaching a broad cross-section
of the courses in the department, liaise constantly with colleagues
and other heads of departments to promote efficiency and cross
curricular activities.
(b)
Keep up to date on all current developments in the subject
especially about all new books, audio visuals and other teaching aids
and encourage colleagues to use them, foster good relations of staff
in the department and that of staff and students.
©
Be the chief administrator of the department and prepare an annual
budget thereof, prepare the syllabus for the subject and update this
regularly as the need arose, supervise teaching plans by the staff
and keep a regular check on these, hold regular departmental meetings
(at least three per term) to discuss academic and student matters and
liaise with the Deputy
Headmaster
on matters pertaining to teachers performance, administrative
requirements and the general status of the department, (d) Conduct
yearly appraisals of members of the department and forward same to
the Head teacher. Furthermore the head of department was to assist
the staff in drawing up personal annual objectives, represent the
department at the school curriculum committee, assist new staff in
settling in and appraise the staff on the unique policy of S.O.S.
Children's Village to enhance the welfare of disadvantaged children.
Finally the heads had to conduct themselves in a professional and
worthy manner especially in their relationship to staff and students.
According
to the headmaster Mr. Wilton Dlamini, all the eight Applicants
commenced their new roles as detailed to them. That all of them
performed reasonably well as head of departments and those of them
who were still at the school at the time of the trial continued to
perform the duties of head of department as stipulated in the letter
of appointment. Several of the Applicants had since left the employ
of the Respondent for various reasons not the subject matter of the
application before court.
Mr.
Wilton Dlamini however informed the court that in the month of June
2000, the Respondent took a decision to terminate the payment of the
head of department allowance to the eight Applicants. This had been
preceded by a suspension of the allowance in December 1999. This
resulted in the dispute the cause of the application before court.
The
Applicants in the particulars of claim state that the termination of
the payment of departmental allowance was a unilateral and unlawful
conduct by the Respondent. That this constituted a repudiation and
breach of the respective contracts of appointment entered into
between the individual Applicants and the Respondent.
That
the Applicants did not accept but resisted the repudiation of the
contracts and demand specific performance thereof.
The
Applicants stated in the particulars of claim and in court that the
Respondent did not revoke the appointments to the departmental head
positions but continued to require them to perform as head of
departments performing the additional duties and requirements set out
in the letters of appointment.
Those
of the Applicants still in the employ of the Respondent continued to
perform such duties. Those who have since left the employ of the
Respondent continued to perform such duties until their respective
dates of departure.
The
headmaster Mr. Wilton Dlamini confirmed this position in his
testimony before court. This is inspite of the blatant denial by the
Respondent of this fact in paragraph 7 of the Respondent's Reply.
Mr.
Wilton Dlamini further in his testimony denied knowledge of the
conduct of any formal appraisal of the head of department
appointments in terms of the letters of appointment prior to the
suspension and subsequent termination of the head of department
allowance. Again this is inspite of the bold assertion in paragraph 6
of the Reply that "the allowances were withdrawn in terms of the
agreement after a formal appraisal had been conducted of all the
Applicants and when it became apparent that there was no remedial
action on the part of the Applicants."
To
the contrary Mr. Wilton Dlamini told the court that all the
Applicants conducted their duties as head of departments to his
satisfaction. He emphasized that those that were still at the school
continued to render quality performance to the school.
The
only drawback according to Mr. Wilton Dlamini arose when some of the
Applicants, not specified to the court submitted their annual reports
later than December 1999, as had been required of them by the
National Director.
Mr.
Dlamini concurred with the Applicants that initially there was a
difficulty in understanding the nature and content of the report
requested from them by the Board of Directors.
That
the teachers sought clarification which was provided to them by the
National Director. That during the last quarter of the year the
Applicants set, supervised and marked examination papers. The
combination of these factors led to a delay in preparing the reports
before December. As a result of the delay, the National Director
withdrew the head of department allowance.
It
became common cause that several of the Applicants presented their
reports, beginning of January 2000. That others sought an extension
of time to polish their documents and were granted extension to March
2000. That all the Applicants did submit their reports by the end of
the extended deadline. That notwithstanding the Board of Directors
decided that due to poor work performance by the Applicants, the
Respondent did not gain value from the extra payment of head of
department allowance and same was withdrawn.
During
cross examination of the Applicants by Mr. Jele for the Respondent,
Mr. Jele repeatedly put to the Applicants that their appointment was
terminated in June 2000 together with the withdrawal of the
allowances. He put to them that Mr. Wilton Dlamini will testify to
this fact. He further put to the Applicants that the termination was
for poor work performance as head of department and Mr. Wilton
Dlamini will testify to this. Furthermore he put to the Applicants
that Mr. Wilton Dlamini will testify that the withdrawal was upon a
formal appraisal in terms of the letter of appointment conducted of
all the Applicants and it was realized that there was no remedial
action on the part of the Applicants.
As
alluded to earlier, when Mr. Wilton Dlamini took the stand, he
adduced evidence contrary to the aforesaid versions by counsel. The
evidence also rubbished the averments contained in paragraphs 5, 6
and 7 of the Respondent's Reply.
Even
more damaging was the contents of paragraph 7.2 of the Reply to the
effect that "the Applicants were unbeknown to the Respondent
already receiving a head of departments allowance from the Ministry
of Education". This was again put to the Applicants by Mr. Jele
stating that the Respondent's evidence will show that some of the
Applicants received double payment of head of department allowance
unbeknown to the Respondent.
The
two witnesses for the Respondent Mr. Wilton Dlamini and Dr. Ntiwane
told the court that only Freddie Dladla was seconded to S.O.S. School
whilst still a head of department. They also stated that this
position was well known to the Respondent and therefore there was no
'suspicion' of double payment of head of department allowance as
alluded to by counsel for the Respondent.
The
Applicants filed in a list of their respective claims in annexure TV
to the application. It was also agreed by counsel for the parties
that in the event the Application was successful, the specific date
of departure in respect of the Applicants that have since left the
Respondent will be confirmed interse for purposes of arrear
payments of the allowances.
During
the evidence of Mr. Wilton Dlamini, it became apparent to the court
that his testimony sharply contradicted the Respondent's pleadings
and what was put to the Applicants by Mr. Jele for the Respondent.
The
court postponed the matter to enable further consultations between
Mr. Jele and the Respondent with a view to a possible curtailment of
the proceedings given the evidence already before the court.
When
the matter was re-set for a call, the Respondents chose to proceed
with the matter to finality and brought testimony of a member of the
Board of Directors of the Respondent Dr. Ntiwane.
Dr.
Ntiwane made a genuine attempt at damage control detailing the
philanthropic mission of the Respondent in Swaziland. He further
defended the Respondent's action from an economic point of view.
He
suffered constraints because the National Director who was involved
directly in the programme the subject of the dispute had since passed
away.
He
stated however that the Applicants were consulted through their
representatives by the Board prior to the stoppage of the allowances.
He however was non committal as to whether the actual appointments of
the Applicants to the positions of head of department were terminated
by the Respondent when the allowances were withdrawn. He told the
court that the decision to terminate the allowances was largely due
to financial reasons rather than being a result of poor work
performance by the respective heads. He emphasized that the work of a
head of department was not beyond the ordinary daily chore of a
teacher hence there was no necessity to pay extra in the
circumstances.
The
witness was unable to produce any documentation relating to the
appraisal of the individual teachers and the alleged failure to make
amends as pleaded by the Respondent.
A
belated attempt to produce Minutes of the Board meeting after the
close of the Respondent's case was refused by the court. This was
because no witness was present to produce the documents and it was
not shown that any new matter that could not or was not in the
knowledge of the Respondents had since been discovered and was
crucial to the determination of the suit.
This
matter was instituted in the year 2001. Pleadings had been closed as
early as August 2001. The matter had been postponed severally and
therefore the respondent had every opportunity to prepare its case.
There was no excuse whatsoever for the attempted introduction of
bulky documentation by counsel from the bar after they had closed
their case. The objection by counsel for the Applicants was then
upheld. The admission of the documentation belatedly would have in
the court's view prejudiced the Applicants' case in a manner not
remediable by costs.
Upon
a careful analysis of the facts of the case, the Applicants on a
balance of probabilities established that the Respondent appointed
each one of them as head of department with effect from January 1999.
They performed their duties in terms of the appointment to the
satisfaction of the Headmaster. They were paid allowances of E300.00
and E400.00 as shown in the annexure to the Application in terms of
the contracts of appointment until same were suspended arbitrary by
the National Director in December 1999.
No
proper consultation and/or evaluation of their performance had been
conducted at the time by the Respondent. The allowances were never
reinstated up to the time the matter came to court.
Some
of the Applicants left the employ of the Respondent. They had served
as head of departments until the date of their respective departure.
Those
that remained continued to perform as head of departments to-date.
The
attempt by the Respondent to rebut the evidence of the Applicants
failed dismally. Glaring discrepancies between the testimony of the
witnesses of the Respondent and the pleadings put paid to the defence
advanced.
Accordingly,
the Application of all the eight Applicants succeed entirely.
The
parties are to compute the specific amounts due to each Applicant and
file the same within two weeks from the date of judgement.
In
terms of Section 13 (1) of the Industrial Relations Act No. 1 of
2000, this is a proper matter where requirements of the law and
fairness demand that the Respondent pay the costs of the Application.
The
award to the Applicants is to be paid with interest at the rate of 9%
per annum a tempore morae to date of payment
The
members agree.
NDERI
NDUMA
JUDGE
PRESIDENT-INDUSTRIAL COURT
