IN THE
INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE
CASE NO.
287/2002
In the matter
between:
NKOSINATHIDLAMINI………………………………APPLICANT
and
TIGER SECURITY
(PTY) LIMITED ……………........RESPONDENT
CORAM:
NDERINDUMA:
PRESIDENT
JOSIAH YENDE:
MEMBER
NICHOLAS MANANA:
MEMBER
V. DLAMINI:
FOR APPLICANT
Z. JELE:
FOR RESPONDENT
JUDGEMENT -
04/04/05
This is an
application for the determination of an unresolved dispute in terms
of Section 85 (2) of the Industrial Relations Act of 2000,
hereinafter (the Act)
The Applicant in
the particulars of claim seeks re-instatement to the employ of the
Respondent from which he alleges he was terminated on the 4th
June 2002. He further alleges that he was employed on the 8th
August 2000 as a security guard and had worked continuously until the
termination.
In the
alternative he seeks maximum compensation for unfair dismissal and
payment of notice pay, additional notice pay, severance allowance. A
claim for overtime was abandoned in midstream.
The Applicant
states that he was unlawfully and unfairly dismissed for sleeping on
duty. That he was denied a hearing prior to the dismissal. No appeal
hearing was held. The dismissal was therefore substantively and
procedurally unfair.
The Applicant
reported a dispute to the Commissioner of Labour in terms of Section
76 (1) of the Act. The dispute was referred to the Conciliation,
Mediation and Arbitration Commission (CMAC). The dispute was not
resolved hence the application before court.
At the time of
dismissal, the Applicant earned E709.00 (Seven Hundred and Nine
Emalangeni) per month plus overtime allowance.
In his testimony
before the court, the Applicant said that the terms of his employment
were not put on paper. He was employed verbally by one Clement
Dlamini.
That Clement
promised him permanent employment. He worked as a watchman at the
company premises and at the residences of the company's managers. He
worked 12 hours a day and worked continuously for 22 months.
He said that he
was alleged to have slept on duty when infact he had been at the
toilet on the 2nd June 2002. He was on night shift at the
Breweries premises at the material time. He went out of the perimeter
fence to relief himself because he had a running stomach.
He was
confronted by Induna - Zwane who claimed that he was not at his duty
station, and he was then transferred to the Managing Director's home
at Malkerns. His attempt to explain that he was at the toilet was in
vain.
The following
morning he was told by One Mr. Ndzimandze, Shift Manager, that his
services were terminated because he was asleep while on duty.
He was not
formally charged nor did he appear before a disciplinary tribunal
prior to the dismissal. He approached Clement Dlamini to discuss the
matter but Clement upheld the dismissal. The Applicant was paid for
days worked only.
He said he was
25 years old, was married but had no children.
The Applicant
called one Vusi P. Dlamini in support of his case. He was a security
guard employed by the Respondent on the 1st April, 1997.
He no longer worked for the Respondent. He said that the Applicant
was employed by the Respondent on or about July 2000 and was with him
for about 4 months before he left the employ of the Respondent. He
did not know whether the Applicant was a temporary employee or a
permanent one. His testimony was not helpful to the Applicant's case.
RESPONDENT'S
CASE
In its reply the
Respondent avers that the Applicant was employed for a fixed term and
that his employment had lapsed on effluxion of time.
The Respondent
denies that the Applicant was employed continuously from the 8th
August 2000 to the 4th June 2002 as alleged by the
Applicant.
The Applicant
was according to the Respondent not an employee protected by Section
35 (2) of the Employment Act No. 5 of 1980.
Clement Dlamini
testified as RW1 for the Respondent. He was presently the Loss
Control Manager for Swaziland Breweries. Previously he was the
Managing Director of the Respondent.
The Respondent
was a small enterprise employing about fifteen employees who served
the Breweries as security guards. The company expanded with time and
offered services to other companies. The company retained a pool of
temporary employees who it deployed as and when work became
available.
The Applicant
was one such employee recruited from time to time on a temporary
basis.
The company
would give such recruits first priority whenever a permanent vacancy
arose.-
The witness
produced exhibit Bl and B2, a sample contract for permanent employees
and exhibit B3, a sample contract for casual employees. Indeed this
was a temporary contract for the Applicant between the 26th
November 2001 and 23rd December 2001.
He also produced
cheque request vouchers for payment of the Applicant's monthly salary
whenever he was engaged as a casual security guard.
On the 30th
May 2002, the Applicant wrote a letter to the Respondent applying for
employment as a permanent security guard. This was produced as
exhibit 'B15'.
Clement Dlamini
told the court that as at the time the Applicant was in the pool of
personnel from whom the company recruited casual guards from time to
time.
The Applicant's
application was however not successful.
The operation of
the Respondent eventually was disbanded.
Clement denied
that the Applicant was ever employed by the Respondent on permanent
and pensionable basis. He further denied that the Applicant was
disciplined for sleeping on duty. His employment simply terminated by
effluxion of time.
He was therefore
not entitled to any compensation or payment of terminal benefits. He
could also not be reinstated because the operations of the respondent
folded.
Section 35 (1)
(d) of the Employment Act recognizes an employee who is engaged for a
fixed term and whose term of engagement has expired does not have
recourse to Section 35 (2) of the Act.
See Thando S.
Dlamini vs Swaziland Liquor Distributors - Industrial Court of
Swaziland Case No. 240/2002.
In the matter of
Sarah Ndwandwe vs The Principal Secretary of the Ministry of Works
& Construction Court of Appeal Case No. 6/1997; the Swaziland
Court of Appeal held that there is nothing in the Employment Act or
in any other law which makes it illegal for a person to be employed
on a temporary basis in order for a specific job to be undertaken.
Such employment
must however be for a specific period, otherwise, if not, upon expiry
of the statutory permissible period in which an employee may be kept
on probation, the employment becomes permanent and subject to
protection by Section 35 (2) of the Act.
From the papers
filed of record, and the evidence adduced before court, the Applicant
was employed for a fixed term from time to time, and did not work
continuously for more than three (3) months without a break.
He has failed to
prove that he was an employee entitled to protection under Section 35
(2) of the Employment Act.
The provisions
of Section 36 and 42 (2) (a) and (b) did not apply to him.
The application
fails in its entirety.
No order as to
costs.
The members
agree.
NDERI NDUMA
JUDGE
PRESIDENT- INDUSTRIAL COURT
