IN THE
INDUSTRIAL COURT OF SWAZILAND
HELD AT
MBABANE
CASE NO.
273/2003
In the matter
between:
CONSTANCE SI ME
LANE…………………APPLICANT
and
SWAZILAND
ELECTRICITY BOARD……RESPONDENT
CORAM:
NDERI NDUMA:
PRESIDENT
JOSIAH YENDE:
MEMBER
NICHOLAS MANANA:
MEMBER
LINDIFA MAMBA:
FOR APPLICANT
MUSA SIBANDZE:
FOR RESPONDENT
J U DG E M ENT
8/12/05
The Applicant
claims the following:
"1.1
Payment of E218J19.80 being arrear salary.
1.2 £6,400 British
Pounds as being 50% sponsorship for training;
1.3 E292,266.40 as maximum
compensation for unfair dismissal; alternatively reinstatement.
Prior to the
making of the closing arguments by Mr. Mamba for the Applicant and
Sibandze for the Respondent, it was disclosed to the Judge in
chambers that at least two of the tapes bearing part of the evidence
in this matter were inaudible.
For clarity it
was agreed by the parties that they were both in a position to make
final submissions on the matter and this was un-affected by the
inaudible tapes. The court made it clear to them that the judge does
not as per practice resort to listening to the tapes in making
judgement. That for this the judge relied entirely on his notes and
the papers filed of record.
The decision as
to whether they would be in a position to reconstruct the record in
the event of an appeal was left to the parties.
BACKGROUND
The history of
this matter is well documented in exhibits Al up to A15 all produced
by the Applicant. The contents of the documents aforesaid are not in
dispute.
This matter
strictly hedges on the determination as to whether an Agreement was
concluded between the Applicant and the Respondent on the following
issues:
1. That the Applicant was
to proceed to the United Kingdom on study leave for a masters Degree
in Business Administration.
2. That the Respondent was
to pay:
2.1 50% of the fees and
other expenses for the training.
2.2 Full monthly salary
during the one year study leave.
3. If there was no such
agreement, whether the Respondent conducted itself in a manner as to
lead the Applicant to a reasonable conclusion that such was the case.
4. If the Respondent had a
reason provided by Section 36 of the Employment Act to dismiss the
Applicant.
5. If it was fair and
reasonable to dismiss the Applicant taking all the circumstances of
the case into account.
The Applicant
held the position of Regional Accountant situate at Shiselweni
Region. She was employed by the Respondent on the 23rd
September 1991. She was dismissed on the 3rd April 2002.
At the time of the dismissal she earned a monthly salary of
E12,151.10 (Twelve Thousand One Hundred and Fifty One Emalangeni Ten
Cents).
The dismissal
was for absenting herself from duty without permission from the
employer for a period of more than three days. Reliance was made by
Mr. Shongwe the Acting Managing Director on the provisions of Section
36 (f) of the Employment Act No. 5 of 1980 to dismiss the Applicant.
See the letter dated 10/1/02.
This letter was
a warning to the Applicant to return to Swaziland from the United
Kingdom where she was based at the time by the end of February 2002,
or else she would be dismissed. As it came to pass, the Applicant who
was in the middle of her studies at the time did not adhere to the
warning and was dismissed in absentia on the 3rd April
2002.
It is apposite
to note that at the time this warning was made to the Applicant by
Mr. Shongwe, she had been away in the United Kingdom on study from
the 20th September 2001 (a period of over 3 months).
No prior
communication to this effect had been made to the Applicant until she
wrote to the Respondent on the 26th November 2001 (see
exhibit A12') upon realization that her salary had been frozen. Mr.
Shongwe took one and half months to respond to the Applicant's
letter.
On the day
before the Applicant left for the United Kingdom (20/09/01), she
wrote to Mr. Shongwe exhibit All informing hirn that she would be
proceeding to the Boston Institute in the UK "for a full time
Masters in Business Administration Programme despite your sudden
withdrawal of the earlier granted 50% share of the funding".
In the letter
she went on to say:
"It is my
understanding that SEB has by virtue of your letters dated 30th
August 2001 and 11th September 2001 stating SEB's refusal
to grant me funding has granted me leave of absence for a period of
one (1) year. Based on this premise, I will resume my normal duties
as Regional Accountant for the Shiselweni Region on my return".
Mr. Shongwe did
not respond to this letter at all and as indicated the Applicant flew
to the United Kingdom the following day.
It is important
then to look at the two letters by Mr. Shongwe referred to in All.
The letter dated
30 August 2001 is written by Mr. Shongwe to the General Manager Human
Resources, Legal Advisor and to the Applicant and is exhibit 7\7'.
.Due to its importance, I will quote it in full:
"STUDYLOAN
- CONSTANCE SIMELANE
An appeal for a
study funding has been received from the above named employee. Kindly
grant her a study loan of E35,000 towards her school fees. She should
sign an acknowledgement of debt form in accordance with the existing
training policy. This amount will be deducted from her salary on
return from her studies if she fails her exams. This kind gesture is
done on the understanding that it will not create a precedent".
The Applicant
went ahead with her plans to travel to the United Kingdom for her
studies. She did not respond to 7\7' aforesaid. According to
uncontested evidence before court, she went ahead and made
arrangements with her supervisor M/s Mkhonta for her replacement
while she was away, handed over and the Respondent transported her
possessions from the company house and office. Indeed, the study
application form was endorsed by M/s. Mkhonta, the supervisor on the
19th February 2001.
In response to
queries raised by Mr. Sikelela P. Qwabe the Training and Development
Coordinator in a letter dated 5th June 2001 regarding:
(i) The need for
the training
(ii)
Replacement whilst Applicant was away.
(iii) And
budgetary constraints during the period. M/s Mkhonta wrote exhibit
'4' dated the 26th July 2001 wherein, she assured Mr.
Qwabe that she would have no problem in releasing the Applicant for
the studies stated in the application form. That she did not envisage
any problem in filling up the vacancy while the applicant
was away
and she recommended that the Respondent would benefit from the
training of the Applicant since the Respondent was in need of better
trained personnel.
Due to the
reluctance of Mr. Qwabe to sanction the study leave, the Applicant
appealed to the Chairman of the Board of Directors in exhibit V\5'
dated the 31st July 2001.
In response to
the letter to the Board, the Acting Managing Director Mr. Shongwe
wrote to the Applicant noting the appeal to the Board and requesting
the Applicant to follow established grievance procedure in place at
the undertaking. On the 30th August 2001, Mr. Shongwe
however granted the Applicant's wish of 50% funding but specifically
E35,000 (Thirty five Thousand Emalangeni) towards the school fees.
On the 10th
September 2001 the Applicant and Mr. Shongwe had a meeting at his
office where the issue of the scholarship was discussed. The contents
of the meeting are revealed in a letter dated the 11th
September 2001 produced as exhibit 7\9' written by the Applicant to
Mr. Shongwe as follows:
"FUNDING
FOR STUDIES
Following the
conversation which took place between myself and the Acting Managing
Director on Monday 10 September, at Mbabane, I received the news with
great disappointment at the decision by the SEB Management that the
50% study loan which had been offered earlier on is again being
referred back to the Board of Directors for re-approval. Seeing that
I am already left with 4 days to go, referring this issue back to the
Board to me seems to frustrate my efforts till I am left with no
other option but to abandon the move. Under the circumstances I
therefore appeal once again for funding, at least a loan to cover my
tuition fee and an air-fare whilst the Board looks into the issue.
Meanwhile, I shall make ways to improvise till the whole issue is
sorted out
Your
consideration in this regard will be highly appreciated".
On the same day
Mr. Shongwe wrote to the Applicant exhibit 'A8' purporting to recant
the grant of the scholarship contained in his earlier letter of the
30th August 2001. The retraction was on the basis that he
had misunderstood the issue of the fees. The letter reads as follows:
"STUDYLOAN
REQUEST
Reference is
made to my letter to General Manager Human Resources on the above
date 30th August 2001 copied to yourself.
I wish to advise
that there was a gross misunderstanding on the fees requested on your
part which has been explained at length to you by the General Manager
Human Resources and myself.
Accordingly I
wish to withdraw the offer expressed in my letter because of the high
fee involved."
The following
day, the 12th September 2001, the husband of the Applicant
faxed through from the United Kingdom, the Guarantee for the payment
of the 50% tuition fees. The guarantee purports to be for E70,000
representing 50% of the total college fees. This meant that the full
cost of the training was E140,000.
According to Mr.
Manana, the Human Resources Manager in his testimony before court,
the guarantee provided by the Applicant's husband was unacceptable
because they could only accept a guarantee from a reliable
institution or the government. The Respondent however did not write
to the Applicant to that effect until she left for the United Kingdom
on the 21st September 2001. The Respondent did not provide
the airfare but had arranged for her replacement at Shiselweni, the
handing over and for the transport of her items from the company
premises.
It is the
Applicant's case that up to the time she left Swaziland, the only
issue that remained to be resolved was with respect to the extent of
contribution towards the fees by the Respondent. It was understood by
both parties that she was going on study leave to the United Kingdom
and to join her husband there. That even in the final correspondence
by Mr. Shongwe dated 11th September 2001 referred to
earlier (A8) the issue of going was not queried at all. The Acting
Managing Director had only requested her to provide a guarantee for
the 50% sponsorship. At this time, he had understood the full
requirement for the programme, if indeed he had not grasped the same
earlier.
He was aware by
then that the trip was imminent. The Applicant had already moved to
Mbabane, had already been replaced at work, and the Respondent had
already moved her property out of the company premises. He was aware
that her spouse was in the United Kingdom. He however did not come
out clearly and in writing on the issue of the imminent departure.
Even upon
receipt of the last letter by the Applicant dated 20th
September 2001 wherein she indicated that she was leaving for the
studies on the understanding that she had been granted in the least,
leave of absence for a period of one year, he did not respond.
Mr. Jeremiah
Jerry Manana testified for the Respondent. He was the General Manager
Human Resources at the time. He had since retired from the employ of
the Respondent.
He told the
court that the Applicant had discussed the issue of the scholarship
with him upon which he advised her to fill in the appropriate form.
Thereafter the matter was deliberated upon and it was found to be
impracticable to offer the Applicant the scholarship.
According to him
the scholarship was rejected mainly due to lack of finances. It was
considered that the primary motivation by the Applicant to go to the
United Kingdom was to join her husband. The study was a secondary
matter. This was not budgeted for hence the rejection. There was no
immediate need to train the Regional Accountant. He admitted however
that the Regional manager and the Divisional Head recommended that
the Applicant undertakes the study. He however stated that their
approval was just the beginning of the process and the matter was
still to be approved by the Human Resources Department that he
headed. He insisted that there was in place, a training committee at
the department that looked into the issue contrary to the evidence by
the Applicant to the effect that at the time the Training committee
was not in place.
The witness
explained that the matter was dealt with by the Acting Managing
Director and the Board without his knowledge and involvement. He
added that this may be where the Applicant got the assumption that
her departure had been sanctioned. He said that the Applicant had
assumed that she had been granted leave of absence but this was not
actually the case. He added that, Looking at the letter dated the
30th August 2001, she may have been entitled to such
assumption but the letter was subsequently withdrawn by Mr. Shongwe.
When he was
reminded that Mr. Shongwe only purported to withdraw the grant of
E35,000 but not the leave of absence, he was a bit evasive stating
that the matter had been closed though the letter did not say so.
Mr. Manana added
that he only got to know that the Applicant had left for her studies
while she was already in the United Kingdom.
When asked
whether he had considered the guarantee for 50% scholarship provided
by the husband of the Applicant in response to the letter of the 30th
August 2001, he explained that the same was not addressed to
him. He however stated that the guarantee was supposed to come from
Government. He was however not able to show the court the basis of
the requirement.
Mr. Manana said
that he did not receive any complaint from M/s Mkhonta, the
supervisor of the Applicant to the effect that she had absconded. He
wrote to the applicant on the 5th February 2002, five
months after she had left regarding her absence. This was in response
to the Applicant's query dated the 26th November 2001 on
her frozen salary. Mr. Manana explained to the Applicant in the
letter that he had not received a copy of the Applicant's letter
dated the 20th September 2001 regarding her departure. He
said also the Acting Managing Director to whom the letter was written
had not informed him of the Applicant's absence. It was for this
reason that he had stopped payment of her salary because he did not
know where she was. He asked the Applicant to consider returning to
Swaziland and curtail her studies as requested by Mr. Shongwe by a
letter dated the 10th January 2002 referred to earlier. By
this time the Applicant was half way through the course with only six
months remaining to complete the same. The effect of the two letters
was to advise the Applicant that the assumption that the Board by the
Acting Managing Director's Memorandum of 30th August 2001
authorized her to go on study leave was false and unfounded. That was
the reason her salary was stopped with effect from November 2001.
She was
threatened with dismissal for absenting herself from work for more
than (3) days without a justifiable reason in terms of Section 36 (f)
of the
Employment Act.
This was after five (5) months of absence and no communication
whatsoever from the Respondent until she wrote the query.
The million
dollar question is whether the Respondent in the circumstances had a
justifiable reason to terminate the salary, and the employment of the
Applicant and if the sanction she was meted was warranted by her
conduct. The other vexed question is why the Respondent did not wait
for the Applicant to complete her studies and then upon return
subject her to a disciplinary hearing in terms of the code in place
at the undertaking.
The Applicant
has still not received her Master's Degree Certificate inspite that
she had successfully completed the course. The college withheld the
certificate because she had not fully paid the tuition fees.
Upon her return,
she appealed the dismissal to the Acting Managing Director Mr.
Shongwe. She appeared before the Board of Directors. They dismissed
the appeal and upheld the termination.
She was employed
by SASCO in may 2004 and earns a much less salary of E8,800 per month
as compared to the E12,151.10 she earned three (3) years prior at the
Respondent's employ.
She has been
traumatized, suffered joblessness and financial embarrassment. Her
endeavour to better herself proved to be her ruin.
The Applicant
maintains that she was treated unfairly and in a discriminatory
manner because the Respondent continuously offered scholarships to
its staff. While they were on study leave they got paid their
salaries. Instead she lost her job, her salary and has not to-date
obtained her Degree certificate
Considering the
documentary evidence, and the oral testimony of the Applicant and
that of Mr. Manana, was there an agreement between the Applicant and
the Respondent for her to proceed on a one year study leave in the
United Kingdom to undertake a Master's Degree in Business
Administration?
If there was
such agreement, did it include a payment of 50% of the costs of the
study?
The answer to
the two questions will come out of a determination as to whether
there was an offer and an acceptance by the parties so as to
establish if there was a meeting of the minds to entitle the
Applicant not only to demand specific performance but to use the
agreement as a sword in the claim for unfair dismissal.
The following
issues appear to be factually borne out of the evidence before court;
That the
Applicant made an application to the Respondent for a scholarship to
study Masters of Business Administration Degree at the Bolton
Business School in the United Kingdom.
The course was
to take one year and therefore requested leave of absence for the
period. The tuition fees stated in the application form was £6400.
The application
was supported by her section head and immediate supervisor M/s Zodwa
Mkhonta.
The application
was not immediately approved but Mr. Sikelela Qwabe, the Training and
Development Coordinator raised three issues as pre-conditions for the
approval of the application. These were whether there was a need for
the training; who would carry out the duties of the Applicant in her
absence, and the availability of finance to cover E64,000 required
for the tuition and extra costs of accommodation, meals, traveling
and clothing. The officer indicated that the training need analysis
was in progress at the time and that the Customer Services Division
had to answer the issue of replacement. With regard to the issue of
finance, Mr. Qwabe indicated that means to source funding else where
may be looked into. This was on the 5th June 2001.
The Applicant on
the 7th June 2001 replied to Mr. Qwabe stating that she
understood the Respondent had financial constraints and thus she
would be happy to be met half way (50%) on the total amount required
which was only E64,000 - E70.000. She indicated that she was in the
process of arranging for the other 50% through personal loans or from
other sources outside SEB. She also indicated that her immediate
supervisor was happy to release her and had no difficulties finding
her replacement. The supervisor was also satisfied that the MBA would
add value to her performance upon return.
This position
was indeed confirmed by the supervisor M/s Mkhonta in her letter to
Mr. Qwabe dated the 26th July 2001. No further response
came from Mr. Qwabe.
Meanwhile the
Applicant referred the matter to the Board for further consideration
as time was running out. On the 16th August 2001, the
Acting Managing Director indicated that the Board had discussed the
issue and advised the Applicant to follow the correct grievance
procedures in addressing the issue. Immediately thereafter, however,
and specifically on the 30th August 2001 the Acting
Managing Director, stated that an appeal for a study funding had been
received from the Applicant. He directed the General Manager Human
Resources and the Legal Advisor to grant the Applicant E35,000
towards her school fees. That she was to sign an acknowledgement of
debt upon the fund being disbursed and that the same would only
become payable if she did not complete the course successfully.
As at this
point, a clear offer of E35,000 was made to the Applicant towards the
business school expenses.
The E35,000 was
understood to be, the 50% of the amount requested by the Applicant of
E70.000. The Respondent through the Acting Managing Director had
accepted the request of the Applicant to pay 50% of her tuition
expenses. She had undertaken to find sponsorship for the balance. Her
husband in that regard provided a guarantee to the Respondent that he
would meet 50% of those expenses and he was already based in the
United Kingdom, a fact that was known to the Respondent through M/s
Mkhonta, Mr. Manana and Mr. Shongwe.
All that the
Applicant had to do was to accept the offer made by Mr. Shongwe.
From the
un-controverted evidence, the Applicant upon receipt of the letter
dated 30th August 2001 went full speed to conclude the
preparations for her departure. She prepared for the hand over to a
person already appointed by the Respondent to take over her position
during her absence.
She was provided
with transport to move her assets from the company house and office.
She relocated to Mbabane to ease the arrangements of her travel. All
this was unquestioned by the Respondent from the evidence before
court.
The Applicant by
her conduct had clearly accepted the offer of E35,000 tuition fees.
The only condition attached to this payment was that it would be
repayable if she failed her programme. It is indisputable that she
successfully completed her course.
On the basis of
the evidence before court there was clearly in place an agreement
that the Applicant was to go for a study leave to the United Kingdom
for a period of one year. That the tuition fees quoted by the
Applicant was between E64,000 and E70.000 and that the Respondent
would pay half of that in the sum of E35,000. The Applicant had
undertaken to meet the rest of the expenses.
Although it is
indicated that company policy with regard to training of staff
included a package of air travel, accommodation, meals and other
expenses, this was not offered to the Applicant. To the contrary it
would appear that the Applicant was prepared to meet all these
expenses, because her husband was already studying in the United
Kingdom. This was indeed an added incentive for her study plans but
not the sole reason as Mr. Manana would like the court to believe.
We are fortified
in the belief that not the entire package was offered to the
Applicant from a reading of Mr. Shongwe's letter of the 8th
August 2001 wherein he states in the last sentence of the letter as
follows:
"This kind
gesture is done on the understanding that it will not create any
precedent".
The Acting
Managing Director appears to have taken into consideration all the
special circumstances of this case as presented by the Applicant in
her appeal in making the offer as contained in the letter.
The court finds,
that a contract was concluded between the parties. There was a clear
meeting of the minds on what it entailed. It was only on this basis
that the Applicant purchased her air ticket and proceeded to the
United Kingdom to commence the studies.
Could the
Respondent revoke the contract unilaterally once it had been
concluded?
The concept of
an agreement by consent or true agreement or a meeting of the minds,
or a coincidence of the will, or consensus ad idem (these phrases
being inter changeable) is more of a philosophical than a legal
concept. See R. H. Christie, The Law of Contract 4th
Edition at p.24.
"Although
the minds of the parties must come together courts of law can only
judge from external facts whether this has or has not occurred. In
practice, therefore, it is the manifestation of their wills and not
the unexpressed will which is of importance. This is the only
practical way in which courts of law can determine the terms of a
contract. Per WesselsJA.
In the context
of this case, to determine if the minds of the Applicant and the
Respondent had met upon the Applicant's receipt of the letter dated
30th August 2001, we have to look at the external
manifestation of their wills in their conduct and expression as
contained in the documentation before us. The Applicant had asked for
a one year study leave, she had cited a tuition fees of up to E70,000
and had requested to be met half way by the Respondent. The
Respondent went ahead and offered E35,000 to her. Relying on this
offer she left for the United Kingdom with the hope of returning to
her work after one year of study. She knew that this money would be
paid to her whilst she was at school and the same would be non
refundable provided she passed her exams and obtained her degree.
The Respondent
could not renege on this contract unilaterally. All the post contract
conditions presented to the Applicant after the conclusion of the
Agreement were futile and could not nullify a contract that had
lawfully been concluded and acted upon. A party wishing to renege on
such an agreement would do so on its own peril. Unfortunately that is
the position the Respondent finds itself in.
The Respondent
went further, relying on its unlawful breach of the agreement to
commit further unlawful and unfair acts against its employee, the
Applicant.
In this unlawful
expedition, the Respondent stopped the salary of the applicant. It is
not in dispute that all employees of the Respondent who went on study
leave were entitled to a full salary for the period. This went to
their upkeep. The Respondent based its decision solely on the reason
that it had not sanctioned the scholarship of the Applicant. In this
it was clearly wrong. A lawful scholarship contract had been
concluded between it and the Applicant.
In Wasmult v
Jacobs 1987 3 SA 629 (SWA) 633D lew J: said
"It is
fundamental to the nature of any offer that it should be certain and
definite in terms. It must be firm, that is, made with the intention
that when it is accepted it will bind the offeror".
Such was the
present case. The offer of E35,000 scholarship was accepted by the
Applicant and she proceeded on a one year leave of absence in terms
of the application aforesaid.
It is the
court's considered view that all the relevant facts were in
possession and in the mind of Mr. Shongwe when he wrote the letter of
the 30th August 2001. He had the animus contrahendi and
the basis of this had been provided in the Applicant's appeal for a
scholarship and leave of absence.
Such an offer
could only come to an end if not accepted by effluxion of time, if
any was fixed for acceptance by the offeror in making his offer. In
this case the date of commencement of the study was known to the
Respondent and the offer could only have come to an end if the
Applicant had failed to proceed with the study leave.
The Applicant
did not make any counter offer but continued in earnest to prepare
for her trip. She only responded to the un-called for and unlawful
retraction of the offer by Mr. Shongwe. Such retraction was of no
force and effect because there was no time limit placed within which
it could be accepted and the Respondent was fully aware and took part
in the Applicant's preparation for the trip. The offer had been
immediately accepted. The scenario is fully presented by the
Applicant in her letter to Mr. Shongwe dated 11th
September 2001 and marked exhibit VA9' as follows: (The
court reiterates its contents)
"FUNDING
FOR STUDIES
Following the
conversation which took place between myself and the Acting Managing
Director on Monday 10th September 2001 at Mbabane, I
received the news with great disappointment at the decision taken by
the SEB management that that 50% study loan which had been offered
earlier on, is again being referred back to the Board of Directors
for re-approval. Seeing that I am already left with 4 days to go,
referring this issue back to the Board to me seems a continued means
to frustrate my efforts till I am left with no other option but to
abandon the move.
Under the
circumstances, I therefore appeal once again for funding at least a
loan to cover my tuition fee and an air fare whilst the Board looks
into the issue. Meanwhile, I shall make ways to improvise till the
whole issue is sorted out. Your consideration in this regard will be
highly appreciated".
Apparently, Mr.
Shongwe had verbally informed the Applicant of the repudiation of the
agreement to proceed to the United Kingdom on the 10th
September 2001. He followed it with the letter marked 7\8' wherein he
purported to recall and retract the offer of the 30th
August 2001. He stated that he had grossly misunderstood the amount
of the fees requested. That the issue had now been clarified by the
General manager Human Resources hence the decision to withdraw the
offer expressed in his letter of the 30th August 2001.
As of the date,
the Applicant had only four (4) days left to take her trip. She had
handed over her position, moved out of the company premises and was
only waiting to fly out. It was too late for the respondent to cancel
the agreement at this hour. It could not do so lawfully. The offer
had long been accepted and it could not unilaterally withdraw it.
Such liberty had long been compromised.
All the actions
of the Applicant pointed at affirming the agreement in place and non
whatsoever can be construed as a repudiation of the same.
The Respondent
was in breach. It was bound to pay the E35,000 offered towards
tuition, it was bound to allow the Applicant to complete her MBA
programme at Bolton University in the United Kingdom; it was bound to
continue paying her full salary for one year until her return; it was
bound to accept her back to her position or better upon her return.
Instead in a
flagrant abuse of its obligation and the law, it stopped payment of
the salary as from 30th November 2001. The Respondent
proceeded to unlawfully terminate the employment of the Applicant on
the 23rd April 2002 in terms of Section 36 (f) of the Employment Act
No. 5 of 1980 in that the Applicant had absented herself from work
for more than 3 working days without a lawful justification. The
respondent persists in such justification for the termination. The
court has found, based on the facts of the case, and the legal
position herein before postulated that the Respondent has failed to
prove on a balance of probabilities or at all that it dismissed the
Applicant for a reason provided by Section 36 of the Act. The
dismissal was both unfair and unreasonable in the circumstances of
this case. The respondent has thus failed the test placed on it by
Section 42 (2) (a) and (b) of the Act.
REMEDY
The Applicant
claims reinstatement to her position and in the alternative maximum
compensation for unfair dismissal.
In terms of
Section 16 (1), reinstatement is the primary remedy provided by the
Industrial Relations Act No. 1 of 2000. Such reinstatement is to be
with effect from a date not earlier than the date of dismissal. The
evidence before the court is that the Applicant successfully
completed her MBA programme. The Respondent is in terms of this
judgement bound to pay E35,000 towards the tuition fees.
In return the
Applicant was to give service with added value to the Respondent. Mo
circumstances satisfactory enough have been placed before court to
show the impracticability of reinstating the Applicant. The Applicant
had not committed any misconduct. She is now employed by a different
employer paying her much less than she previously earned. The court
directs that the Respondent reinstates the Applicant forthwith. Such
reinstatement is with effect from the 3rd April 2002. The
arrear salary payable will be less the monthly salary of E8,800
received by the Applicant from May 2004 to the date of judgement.
In terms of
prayer (a), the Respondent is directed to pay an arrear salary of
E218,719.80 (Two Hundred and Eighteen, Seven Hundred and Nineteen
Emalangeni Eighty Cents) that accrued from the date of stoppage of
the salary to the date of the dismissal.
Further, in
terms of prayer (b) the Respondent is to pay E35,000 (Thirty Five
Thousand Emalangeni) being the tuition fees in terms of the
Agreement.
The Respondent
is to pay the costs of the application in the circumstances of the
case.
The members
Agree.
NDERI NDUMA
JUDGE
PRESIDENT-INDUSTRIAL COURT
