IN THE INDUSTRIAL COURT OF
HELD AT MBABANE
In the matter between:
CASE NO. 261/03
PAPER MILLS LIMITED….RESPONDENT
THE APPLICANT MR. N. MTHETHWA:
THE RESPONDENT MR. M. SIB AND ZE:
& SIBANDZE ATTORNEYS
This is an application for
the determination of an unresolved dispute between the parties. It
was brought before the court in terms of Section 85(2) of the
Industrial Relations Act No. 1 of 2000 as amended.
The applicant is a former
employee of the respondent company. He claims that he was unfairly
dismissed by the company on 30th May 2005 when his
position was declared redundant and he was retrenched.
The respondent argued to the
contrary that the applicant was not unfairly dismissed, but his
position was declared redundant and consequently terminated his
In his application the
applicant stated that he was employed by the respondent on the 8th
April 1992. He said he was in continuous employment until 30th
May 2003 when his position was declared redundant.
The applicant says that his
service was unlawfully terminated because of the following reasons
and I quote verbatim:-
"6.1. The Company never
consulted with the applicant union representative.
6.2. The company never consulted with
6.3. The company did not apply fair and
reasonable criteria in selecting applicant for retrenchment;
6.4. The company did not consider the
applicant's personal circumstances in particular that the applicant
is disabled due to a work accident;
6.5. The company did not consider or
discuss with the applicant ways and means to avoid his retrenchment;
6.6. The company retrenched the
applicant in bad faith, because he was disabled not because he was
6.7. The company never gave proper
notice of the redundancies in terms of the Employment Act 1980 (as
6.8. The retrenchments were effected
contrary to an order of the Industrial court."
The applicant is claiming
maximum compensation in the sum of E18,645:12. In his evidence under
oath the applicant told the court that whilst under the employ of the
respondent, he got injured during a soccer match on 12th
October 1996. His doctor made a finding that he suffered a 20%
disability. He said his physiotherapist recommended that he should
not stand for more than two hours. He said the company did not
however follow that recommendation.
The applicant said the
company took care of him at first but it stopped doing so later. He
said the company only paid him for eight months and then stopped
paying him his salary. During cross-examination he told the court
that his foreman told him that he was going to be terminated. He did
not deny that the company did consult with the employees'
representative during the retrenchment process.
On behalf of the respondent,
RW1 Robert Makhanya testified before the court. He told the court
that he used to work for the respondent as a Human Resources Manager
and Industrial Relations officer. He said he left the respondent
company in 2003. He said he was presently self-employed. He said the
applicant was one of the hundred and seven employees earmarked for
retrenchment. He said the cause of the redundancy was that the
respondent was unable to meet its overheads. He said a notice in
terms of Section 40 of the Employment Act was written to the
Commissioner of Labour. He said audited financial statements were
attached and that meetings were held between the respondent and the
workers' representatives. Makhanya also told the court that there
were also consultations with individual employees. He further told
the court that the applicant was offered a transfer to the
Laboratory, but he declined the offer. Makhanya also said the last in
first out (Lifo) principle was used.
During cross-examination it
was put to Makhanya that the Lifo system was not used as there was an
employee who joined the company after the applicant, but he was not
retrenched. Makhanya was unable to deny that. It was further put to
him that the applicant was retrenched just because he was then
disabled. That was denied by Makhanya.
From the evidence presented
before the court, it became clear that the applicant's main
contention was that he was unfairly retrenched just because he had
sustained the injury at work and therefore the company did not want
him there anymore.
That contention was however
not supported by the evidence before court. The evidence showed that
on the day that the applicant was injured an injury on duty (IOD)
form was filled and he was taken to hospital. The evidence also
showed that whilst still recovering the company ambulance would fetch
him home and take him to hospital. The evidence showed that the
company continued to pay him his full salary.
The court will reject the
applicant's evidence that the company at some point stopped to pay
him his salary. If that was correct, it is strange^ that he did not
claim arrear salaries up to the date of his dismissal.
The evidence that audited
financial statements were attached to the notice of the retrenchment
was not denied. Further, the evidence of consultation between the
respondent and the workers representative was not disputed.
In terms of the law the
burden of proof that an employee was fairly terminated is on the
employer. The employee need only to prove that at the time his
service was terminated, he was an employee to whom Section 35
applied. (See Section 42 of the Employment Act No.5 of 1980).
In the light of the
undisputed evidence before the court that the respondent company was
unable to meet its overheads, and that a notice in terms of Section
40 of the Employment Act was made, and the evidence of four
consultation meetings between the employer and the workers
representative, the court will come to the conclusion that the
respondent has proved that the termination was one permitted by
Section 36 of the Employment Act.
The respondent's witness was
unable however to dispute the evidence that the (Lifo) system was not
faithfully applied. The applicant told the court that there was an
employee by the name of Mxolisi Zwane, employment No. 3901, who was
still working yet he joined the company after the applicant. The
evidence showed that the applicant's employment number was 3156. The
evidence showed that the employment numbers were made sequentially
depending on one's date of employment.
It is clear therefore that
although the company lawfully engaged in the retrenchment process, it
did not however follow a fair procedure in the selection process of
those to be retrenched.
The court will therefore come
to the conclusion that the termination of the applicant's service was
The applicant told the court
that he is unemployed since his termination in 2003. He said he was
trying to find alternative employment but he is unsuccessful. He said
he was earning El,553:76per month. He is married and has three
children. One is in Form 1. The second is doing standard 4 and the
last one is ten months old. He is the sole breadwinner and is only
thirty-three years old. Taking into account all these factors the
court will make an order that the respondent pays the applicant an
amount equal to six months' wages as compensation for the unfair
The court will accordingly
make an order that the respondent pays the applicant an amount of
El,553:76 x 6) = E9,322:56.
The members are in agreement.
COURT ACTING JUDGE