In their founding affidavits, the Applicants allege that they were
each employed by the Ministry of Health & Social Welfare in the
Swaziland Government for the period 4th
2007 to 4th
2008 on terms recorded in written contracts of employment.
In terms of their contracts, the Applicants were employed as
regional contraceptive logistics management officers, earning an
annual remuneration of E84.000-00, payable monthly on or before the
of each month.
The Applicants allege that they duly commenced their employment and
discharged their employment obligations in terms of their respective
contracts of employment. Nevertheless the Government failed or
neglected to pay their salaries for the period March - August 2007.
The arrears due and owing to each Applicant amount to E42.000-00.
The Applicants allege that they have not breached their employment
contracts and there is no lawful reason for the non-payment of their
salaries over a period of six months.
The Applicants attach copies of the employment contracts to their
affidavits. The contracts contain the terms alleged by the
Applicants. Each contract is signed by the Principal Secretary in
the Ministry of Health and Social Welfare on behalf of the
Government as employer. On the face of the contracts, the Government
was liable to pay the sum of E42.000.00 to each Applicant in respect
of agreed remuneration for services rendered during the period March
- August 2007.
The Respondents appeared in court through Crown Counsel to oppose
the application. The Respondents rely solely upon a point of law,
and they have not filed any answering affidavits placing in issue
the factual averments made by the Applicants.
The point of law raised by the Respondents may be simply stated as
court may not take cognizance of the Applicant's claim because it
has not been reported or dealt with in terms of the procedures
provided in Part V111 of the Industrial Relations Act 2000 (as
Part V111 of the Act deals inter
the procedure for reporting a dispute to the Conciliation, Mediation
and Arbitration Commission for conciliation, the resolution of
disputes through conciliation, and the referral of unresolved
disputes to the court for determination.
Rule 3 (2) of the Industrial Court Rules, 1984 provides:
court may not take cognizance of any dispute which has not been
reported or dealt with in accordance with Part [V111] of the
[Industrial Relations] Act.
It is common cause that the Applicants have not reported a dispute
to the Commission, nor have their present claims been the subject of
conciliation before the Commission, nor has the Commission issued a
certificate of unresolved dispute. Furthermore, the Applicants have
not requested the court to waive compliance with Rule 3 (2) on
grounds of urgency or for some other sufficient reason.
At first blush, the Respondent's legal point appears to have some
merit. However the Applicants' counsel counters the legal point by
submitting that there is no dispute with regard to the Applicants'
claims, and there is accordingly no legal necessity to submit the
claims to conciliation before approaching the court.
terms of Rule 3 (2), the court may not take cognizance of any
dispute which has not been reported to or dealt with by the
Commission, but the rule does not preclude the court from enforcing
payment of debt which is wholly undisputed.
word "dispute" in its ordinary meaning connotes
controversy or disagreement - see The Concise Oxford Dictionary (9
Ed). The interpretation section of the Industrial Relations Act 2000
(as amended) provides that " 'dispute'
includes a grievance, a grievance over a practice, and means any
dispute over the -
entitlement of any person or group of persons to any benefit under
an existing collective agreement, joint negotiation Council
agreements or Works Council agreement;
existence or non-existence of a collective agreement or Works
Council agreement and Joint Negotiation Council agreement;
disciplinary action, dismissal, employment, suspension from
employment or re-engagement or reinstatement of any person or group
recognition or non-recognition of an organization seeking to
represent employees in the determination of their terms and
conditions of employment;
application or the interpretation of any law relating to employment;
and conditions of employment of any employee or the physical
conditions under which such employee may be required to work."
The Respondents neither deny nor dispute their liability to pay the
arrear salaries accrued to the Applicants in terms of their
contracts of employment. There is no dispute as to the Applicants'
terms and conditions of employment, their entitlement to be paid
their monthly remuneration for the period March - August 2007, or
the amount claimed by each Applicant. There is no controversy or
dispute, whether one applies the dictionary meaning of the word or
the specialized meaning prescribed by the Act, as to the entitlement
of the Applicants to be paid their arrear salaries.
On the papers, the Respondents are failing or neglecting to pay an
undisputed debt. No purpose can be served by insisting that such a
debt should first be subjected to conciliation procedures, when all
that is required is payment. Rule 3 (2) of the Industrial Court
Rules was never intended to prevent a party from corning directly to
court to enforce payment of an undisputed debt.
do however sound a warning in case the above statement be construed
as an invitation to bypass the dispute resolution procedures
prescribed by Chapter V111 of the Act merely because an Applicant
believes his/her claim to be indisputable.
there is a bona fide and genuine dispute, the provisions of Rule 3
(2) must apply
The point in limine is dismissed. An order is granted in terms of
prayers (a) and (b) of the notice of application. There is no order
as to costs.
PETER R. DUNSETH
OF THE INDUSTRIAL COURT