IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE
NO. 521/06
N
KAN DO NDWANDWE Applicant
VUKA
SIDWASHINI FARMERS ASSOCIATION Respondent
P.
R. DUNSEITH: PRESIDENT
JOSIAH
YENDE: MEMBER
NICHOLAS
MANANA: MEMBER
S.
D LAM IN I: FOR
APPLICANT
S.
HLOPHE: FOR RESPONDENT
RULING
ON APPLICATION
FOR REFERRAL TO ARBITRATION
8/2/07
1. The
Applicant has applied for this matter to be referred to compulsory
arbitration
in terms of the discretion vested in the President of the Industrial
Court under section 8 (8) of the industrial Relations Act 2000 (as
amended).
2.
The Respondent opposes the application on the following grounds:
The
Applicant claims that he was dismissed, and the dismissal was
automatically unfair. This is a serious allegation involving issues
of unlawful discrimination and exposing the Respondent to penal
damages over and above the normal compensation for unfair
dismissal,
Material
disputes of fact and law arise on the pleadings and these disputes
should be resolved in the formal structures of a court trial.
The
outcome of the trial may turn on decisions of facts. No appeal from
the decisions of the arbitrator lies on questions of fact.
The
Respondent has no control over the selection of the arbitrator. In
terms of section 66 (1) of the Industrial Relations Act, the only
prescribed qualification of a Commissioner is that he is
"competent". The Respondent has no way of ensuring that
the selected arbitrator has the professional qualifications and
experience required for the just decision of this particular
matter.
The
amount claimed is substantial for a farmers association such as the
Respondent.
3. The
Applicant's representative insisted that the issues arising for
trial
are
simple and limited in scope. On a perusal of the pleadings, I do not
agree. Whether the Applicant was a permanent or seasonal employee;
whether he was dismissed; whether the Respondent was influenced by a
letter written by the local Umphakatsi; whether the facts support a
finding of automatically unfair dismissal - these questions are
sufficiently complex to require judicial consideration.
4. On
applying the principles spelled out in the cases of Sydney
Mkhabela
v Maxi Prest Tyres (IC Case No.
29/2005)
and
Zodwa
Gamedze
v Swaziland Hospice at Home (IC Case No. 252/2002) I
am
not satisfied that this is the kind of matter where the Respondent
should be compelled to submit to arbitration against its will.
5. The
application for referral is dismissed. There shall be no order as
to
costs.
P.R.
DUNSEITH
PRESIDENT
OF THE INDUSTRIAL COURT
