THE INDUSTRIAL COURT OF SWAZILAND
the matter between
R. DUNSEITH: PRESIDENT
APPLICANT: N. G. DLAMINI
RESPONDENT: S. HLOPHE
Applicants have applied to court for determination of an unresolved
dispute. In their particulars of claim, they allege that on 25th
2001, whilst they were in the employ of the Respondent, they were
temporarily laid-off and told to return to work on 29 October 2001.
2001 they were told that they would be called once there was work to
be done. To date, they have never been recalled and their terminal
benefits have never been paid over to them.
The Applicants are claiming reinstatement to their employment
alternatively payment of statutory terminal benefits and
compensation for unfair dismissal.
The Respondent in its reply admits that it laid-off the Applicants,
due to scarcity of work and having no money to pay their wages. The
Respondent also admits that it has not recalled the Applicants to
date because there is still no work available for them.
The Respondent alleges in its reply that the Applicants were
employees "as and when work was available" i.e. seasonal
The Respondent also avers that the 5th
was duly paid his terminal benefits.
Finally, the Respondent alleges that "the
Applicants do not fall within the provisions of section 40 of the
Employment Act 1980 in that they are four in number as the 5th
was paid his terminal benefits."
It is common cause on the pleadings that the Applicants were
laid-off by the Respondent and told that they would be recalled once
work was available, but they have never been recalled.
On the pleadings, the issues in dispute that arise for determination
are the following:
were the Applicants seasonal workers;
did the Respondent's indefinite lay off of the Applicants and
subsequent failure to recall them to work constitute an unfair
was the Respondent obliged to comply with the provisions of section
40 of the Employment Act 1980 in respect of a retrenchment of the
was the 5th
paid his terminal benefits; and
are the Applicants entitled to payment of their claims and, if so,
to what extent.
At the commencement of the trial, the attorney for the Applicants
conceded that the 5th
had been paid his statutory benefits.
Winile Khanyisile Dlamini testified that she was employed by the
Respondent on the 1st
1997, as a secretary. On 25th
2001 she received a letter from the Respondent in Siswati, the
contents of which may be translated as follows:
of reduction of work
are kindly asked to stop coming to work because of reduction of work
and when the situation returns to normal you will be notified.
Please leave your telephone number or residential address. We hope
you will be cooperative during this hard time we are facing."
The 1 Applicant says that 13 other employees received the same
letter. All 14 laid-off employees approached the Labour Department
for advice. The Labour Officer called the Respondent to advise that
an indefinite lay-off was not acceptable and a date should be fixed
when the laid-off workers could return to work.
The laid-off workers were subsequently given written notification by
the Respondent to "please come and check on 19/11/2001."
2001 there was still no work available, and they were told to come
back on 29 November 2001. On 29 November 2001 they were again turned
away because no work was available, but they were not given any date
on which to return. Since then the Applicants have never been called
back to work.
said that they returned to the Labour Office on 29 November 2001
after being turned away by the Respondent, and they reported to the
Labour Officer Ms. Stukie Mamba. Ms. Mamba telephoned the
Respondent's director but they had a misunderstanding and Ms. Mamba
then prepared a report of dispute on behalf of the Applicants and
forwarded it to the Conciliation, Mediation and Arbitration
Commission. The dispute could not be resolved and a certificate of
unresolved dispute was duly issued by the Commission.
Winile Dlamini said that she was unemployed until April 2004 when
she found another job. She has never been paid her statutory
Under cross examination, it was put to the 1st
that some of the laid-off workers were recalled to work in July
2002, but she said she was not aware of that. She also confirmed
that she has continued to occupy her company accommodation at Bhunya
since she was laid-off. She received notice from the Respondent on
31 January 2002 to vacate by the end of February 2002, but her
attorney advised her to remain in occupation until she is paid her
terminal benefits. The notice to vacate states that on failure to
vacate before the end of February 2002 the rent will be deducted
from the 1st
Barnabas Mthango Mavuso testified that he was employed as a
bricklayer in June 1997. He was one of the workers laid-off on 25th
2001. He substantially confirmed the sequence of events as narrated
by the 1st
He also received a letter requiring him to vacate his company
accommodation by the end of February 2002. He did vacate the flat,
notwithstanding that he has never been paid his terminal benefits.
He is about 80 years of age, and he does not seek an order for
reinstatement as he is too old. He has never been employed since he
Under cross-examination, the 2nd
confirmed that he wrote a letter to the Respondent on the 17 January
2002 in Siswati. A translation of the contents of the letter reads
apply to leave the company Bunye Bemaswati. The money I contributed
was put to him that by this letter he resigned his employment on 17
January 2002. He responded that he was merely withdrawing as a
member of the company. He had been given the option to acquire
shares for E5 000.00, and he had contributed E2000,00. He did not
intend by this letter to resign from his employment since he
regarded himself as already dismissed. His intention was to receive
he had made towards the purchase of shares because he
no longer wished to take up the shares and he needed the money.
Makhosonkhe Makhanya testified that he was employed in June 1998 as a
general assistant. He was laid-off on 25 October 2001. He regarded
his lay-off as a dismissal because no date was set for him to return
to work. He substantially confirmed the sequence of events narrated
by the 1st
He has never been employed since he was laid-off.
In cross examination it was put to him that he was never dismissed by
the Respondent, but instead he failed to wait for work to become
available. He insisted that he was dismissed by the letter dated 25
Sam Mgabhi testified that he was employed as an assistant bricklayer
on 15 July 1997. He was stopped from working on 25 October 2001.
Although this Applicant was rather confused as to dates and the
sequence of events, he did state that he went back to the Respondent
2001 to find out if work was available. He considered himself
dismissed when no work was available and no date was given when he
might return to work. He has been unemployed since he was laid-off.
Under cross-examination, the 4th
agreed that the Applicants reported a dispute in a form signed by
Winile Dlamini on 12th
2001. He agreed that according to such report he had already been
dismissed by the 12th
Themba Lennie Mtsetfwa testified that he was employed in June 1997 as
a fence constructor. He was laid-off on 25th
2001. He substantially confirmed the sequence of events described by
Winile Dlamini. He said that after the dispute was reported to CMAC,
he received payment of his statutory terminal benefits comprising
notice pay and severance allowance. He is now claiming his leave pay
and maximum compensation for unfair dismissal. He has never been
re-employed since he was laid-off.
Under cross-examination, the 5th
confirmed that the dispute was reported to the Commissioner of Labour
2001 ex facie the report of dispute. Asked why he reported a case of
unfair dismissal when the letter of 25th
2001 refers to a temporary stoppage of work, he said that there were
two reasons. Firstly, the Respondent employed casuals to do the
Applicant's work after the layoff. Secondly, the lay-off letter
did not give any date to return to work. The 5th
said he asked for payment of his terminal benefits in January 2002
because he considered that he had been dismissed.
The Applicants also called Stukie Patricia Motsa-Mamba to testify on
their behalf. Ms Mamba is a Senior Labour Officer. She was approached
by the Applicants for advice after they received Respondent's letter
dated 25 October 2001. She telephoned the Respondent and spoke to its
director Mr. Mncina. He confirmed that the Applicants had been
laid-off due to shortage of work. Ms. Mamba told Mr. Mncina that
workers must be laid-off until a specific date. On her advice, the
Respondent thereafter told the laid-off workers to return to work on
Ms. Mamba informed the laid-off employees that a lay off should
generally not exceed 14 days in terms of the law. After 14 days, the
employer was obliged to either restore the employees to work or
retrench them. She advised the laid-off workers to wait until the 14
day period had elapsed.
advice given by Ms. Mamba was wrong. Regulation 13 of the Regulation
of Wages (Building & Construction Industry) Order, 2000 (issued
under section 11 of the Wages Act, 1964) provides:
(1) Where an employer is unable to provide work for any employee due
unavailability of working materials; or
temporary cessation of work;
employer may, subject to that employer giving the employee not less
than twenty four hours notice, lay-off the employee without pay for a
maximum period of thirty working days in the circumstances mentioned
in sub-regulations (a) and (b).
At the expiry of thirty working days the employer shall either
provide work for the employee, or terminate his employment under the
provisions of the Employment Act."
Mamba testified that the employees returned to the Labour Office
12 November 2001. She advised them to fill in a report of dispute
form. Before she formally acknowledged receipt of the report, she
checked the relevant wages regulation order and discovered her error,
namely that the maximum lay-off period was 30 days, not 14. She then
advised the Applicants to delay reporting the dispute until the 30
days period had expired.
Ms. Mamba said that on 28 November 2001 the Applicants returned to
the Labour Office and informed her that they had been to their
workplace and there was still no work for them and the employer had
sent them away without giving them a date to return. She called the
Respondent's other director Guy Dladla, who disconnected his
cellphone. Ms Mamba then assisted the Applicants to complete and file
a fresh report of dispute. She gave the Applicants a copy of the
report to serve on the Respondent, and she transmitted the report to
CMAC on the following day.
Under cross examination, Ms. Mamba was shown the actual report of
dispute form, her acknowledgement of receipt of the form, the
transmission to CMAC form which she completed and signed, and the
CMAC acknowledgment of receipt of the dispute. Confronted with
discrepancies between her evidence and the contents of the forms
themselves, Ms. Mamba departed from her evidence in chief in a number
of material respects. Without detailing the various contradictions in
her evidence, it suffices to say that her credibility was
considerably shaken. She was compelled to admit that she acknowledged
receipt of the report of dispute on 12 November 2001, not 28 November
2001 as she earlier stated; also, that she discovered her error
concerning the maximum lay-off period after
acknowledged receipt of the report, not before as earlier stated.
Ms Mamba could not explain why the same report of dispute delivered
to her on 12th
2001 was transmitted to CMAC on 28th
2001 when, according to her earlier evidence, she had assisted the
Applicants on 28th
2001 to make a fresh report of dispute. She could not say what became
of the alleged second report, and why there was no record of its
The Respondent's director Joseph Mncina testified on its behalf. He
explained that the Respondent is a building maintenance company which
was formed by the retrenched workers of Usuthu Pulp Company. The
Respondent is dependent on Usuthu Pulp Company for all its contracts
of work. In 2001 Usuthu Pulp Company informed the Respondent that it
would only be given limited emergency construction work, and it
should urgently reduce its costs. The Respondent was obliged to
lay-off 14 of its employees to reduce costs.
Mncina substantially confirmed the Applicant's version of events
after the letter of lay-off was delivered on 25th
2001. He confirmed that the Respondent demanded that the Applicants
vacate their company accommodation. He said the 1st
refused to vacate and are still occupying the flats allocated to
them during their employment.
Mncina confirmed receipt of the letter from 2nd
2002. He understood the letter to mean that the 2nd
was resigning from the Respondent's employ.
said "some days" after the lay-off the Respondent
contacted the 3rd
to take them to Manzini for a job, but they refused saying that the
matter was now with the Labour office. This allegation was however
never put to 3rd
when they were cross examined.
Mncina said that the Respondent recalled six of the laid-off workers
back to work in February 2002. He said the recalled workers were
those who remained in their company accommodation arid gave the
Respondent their contact details.
cross-examination, Mr. Mncina was asked why 1 and 2 Applicants were
not recalled to work, since they continued to stay in their company
houses. He replied that the employees who were recalled were those
who never reported a dispute to the Labour Officer again the
Respondent. He added that "you cannot feed dogs who do not hunt
for you but for the neighbours." He described the Applicants as
"enemies" of the Respondent because they had reported a
Respondent also called Jacob Bongani Motsa. He said that he was laid
off from his employment with the Respondent in 2001, and eventually
he and a few others were recalled to work in February 2002. He could
not say what criteria the Respondent used in choosing the workers who
considering all the evidence adduced by the parties, the court finds
the following facts to be proved:
The Applicants were employees of the Respondent to whom section 35 of
the Employment Act 1980 applied. No evidence was led to show that the
Applicants were seasonal workers i.e. employed "as and when work
The Respondent was unable to provide work for the Applicants due to
temporary cessation of contractual work from Usuthu Pulp Company;
The Applicants were laid-off indefinitely on 25th
2001. After the intervention of the Labour office, the Applicants
were told to return on 19th
2001. On this date no work was available and they were told to check
again on 29th
2001. On 29tn
2001 they were turned away again without any return date being given.
The Applicants reported a dispute to the Labour Commissioner on the
2001. The dispute was not however transmitted to CMAC until 28th
The report of dispute alleged that the Applicants had been dismissed
from work on 25th
2001, and that the lay-off was a disguised retrenchment;
The Respondent recalled other laid-off workers to work in February
2002 but deliberately omitted to recall the Applicants after they had
reported the dispute;
The Respondent gave the Applicants notice in January 2002 to vacate
their company accommodation;
demanded and was paid his terminal benefits in February 2002.
The Respondent was entitled to lay-off the Applicants without pay for
a maximum period of thirty working days. At the expiry of this
period, the Respondent was obliged to either provide work for the
Applicants or terminate their employment under the provisions of the
The normal working week in the building and construction industry is
from Monday to Friday consisting of 45 hours. "Working days"
do not include Saturdays, Sundays and public holidays. The thirty
working days maximum lay-off period commenced on 26 October 2001 and
ended on 6th
Before this lay-off period had been completed, the Applicants
reported a dispute to the Labour Commissioner and caused such dispute
to be transmitted to CMAC. The Applicants claimed that they had been
dismissed. They regarded their services as having been terminated.
They claimed reinstatement alternatively payment of terminal benefits
and compensation for unfair dismissal. Misguided or ill-advised as
the premature reporting of the dispute may have been, in our view it
constituted a repudiation of the Applicant's employment relationship
with the Respondent, at least after the dispute had been transmitted
to and received by CMAC on or about 29th
The Applicants' counsel argued that the Respondent committed an
unfair labour practice by selectively re-calling those employees who
had not reported a dispute. We consider that the Respondent was not
obliged to re-call the Applicants because they had already repudiated
the employment relationship.
The Respondent's demand in January 2002 that the Applicants vacate
their company accommodation is consistent with the Applicants having
themselves brought the employment relationship to an end,.
decision to obtain repayment of the deposit he paid towards purchase
of shares in the Respondent is also consistent with a person who no
longer considers himself an employee of the Respondent. Likewise with
request that he be paid his terminal benefits.
It is most unfortunate for the Applicants that they reacted
negatively to their lay-off and were not prepared to cooperate with
the Respondent, as requested in the lay-off notice. Had they been
more patient, they may have been recalled to work, or at least been
properly retrenched with payment of benefits.
Although it is preferable for an employer to stipulate from the
beginning the precise period of lay-off, failure to do so does not
imply that the laid-off workers have been dismissed. It is implicit
from the building regulation that the lay-off may not endure beyond
the applicable maximum period.
It should be noted that this judgement deals solely with a lay-off
permitted by the relevant wage regulation order for the building and
construction industry. Different considerations may apply to a
lay-off not permitted by a similar regulation.
The Applicants were not dismissed by the Respondent, they were
lawfully laid off. The Applicants repudiated their employment, and
the Respondent tacitly accepted the termination of the relationship.
In the premises, the Applicants claim for reinstatement alternatively
compensation for unfair dismissal has no merit.
The Respondent has tendered payment of the Applicants' statutory
terminal benefits. This tender is generous in the light of the
decision we have reached on the merits of the Applicants' case. It is
also fair since the Respondent confirms that it would have been
obliged to retrench the Applicants, if they had not jumped the gun,
because even today no work is available for them.
The Applicants are also entitled to their leave pay.
We enter judgement, on the basis of the Respondent's tender and
liability for leave pay, for payment as follows:
(leave pay only)
will be no order as to costs.
54. There will be no order as
PETER R. DUNSEITH:
PRESIDENT OF THE