IN THE
INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE
CASE NO.
341/2000
In the matter
between:
SALEBONA
SIMELANE……………...APPLICANT
and
DUMISA SUGAR
CORPORATION….RESPONDENT
CORAM:
NDERI NDUMA: PRESIDENT
JOSIAH YENDE: MEMBER
NICHOLAS MANANA: MEMBER
M/S KANYISILE MSIBI: FOR
APPLICANT
J U D G E M
ENT - 15/12/05
The Applicant
was employed by the Respondent in April 1993. He was in continuous
employment until the 30th April 2000 when he was verbally
dismissed by the Respondent. At the time of dismissal, he worked as a
driver, earning a salary of E1680.00
The alleged
reason for the termination was disobedience of orders of his
employer.
The applicant
denies he defied any orders of the employer or at all. The
termination was summary, without any terminal benefits. The Applicant
reported a dispute to the Commissioner of Labour. Conciliation
efforts failed to resolve the dispute. The application was then filed
in court on 9/01/2001.
The same was
served on the Respondent on 15th/2/01. In terms of the
Return of service it was received by One Musa Simelane a motor
mechanic at the Respondent's office and workshop. Mr. Dumisa Shongwe
the Manager of the Workshop was not present at the Workshop when
service was done. The service was done by Acting Deputy Sheriff for
Lubombo District Mr. Sipho Shabangu.
Inspite of the
service the Respondent did not file any reply to the application nor
did the Directors of the Company or their representative appear
before court.
The Attorneys of
Record for the Applicant Maphalala and Associates appear to have
taken very little effort to have this matter heard and determined
between the year 2001 to date inspite that the matter was not
opposed.
In the meantime
the Respondent company has been liquidated to the prejudice and loss
of the Applicant if he is unable to recover the decretal amount
herein.
No proof of the
liquidation was produced in court, hence our decision to proceed with
the matter.
The onus of
establishing that the applicant was dismissed for a reason permitted
by section 36 of the Employment Act No.5 of 1980 lies with the
Respondent. By its default, the Respondent has failed to discharge
the onus. The further burden of the Respondent was to show that the
dismissal was fair and reasonable in the circumstances of the case.
It has also failed in this regard.
The application
therefore succeeds on the merits.
As regards
compensation, the Applicant worked for the Respondent continuously
for about 7 years. He was unlawfully and unfairly dismissed. He was
an old man born in 1936 and was unable to obtain alternative
employment. He still had one minor child to take care of at the time
the matter was heard.
He has suffered
loss of earnings resulting in hardship. Accordingly, the court awards
him 12 months salary as compensation for the unfair dismissal in the
sum of 1680 x 12 = E20,160
Further the
Respondent is to pay terminal benefits as follows:-
Severance
pay..................... E3,877.30
Additional Allowance
…....1,550.88
Notice
pay...........................
1,680.00
Payment in lieu of Leave
….4,200.00
TOTAL
…...........................E31A68.18
The Respondent is to pay
costs of the suit.
The members agree.
N.NDUMA
JUDGE PRESIDENT -
INDUSTRIAL COURT
