IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE
CASE
NO. 591/06
In
the matter between:
CYPRIAN
MABUZA
….............................................................................APPLICANT
And
CARITAS
SWAZILAND
…...................................................................RESPONDENT
CORAM:
NKOSINATHINKONYANE
:
JUDGE
DAN
MANGO :
MEMBER
GILBERT
NDZINISA :
MEMBER
FOR
APPLICANT :
S. MAMBA
FOR
RESPONDENT: P.
MAGAGULA
RULING
ON POINT OF LAW 30.10.07
[1
] The
applicant has brought a Notice of application for an order;
"1.
Directing the respondents to pay to the applicant the sum of E310
156.00 being in respect of arrear salary due to the applicant
calculated from September 1999 to January 2006 and which is attached
to the position of National Director.
2.
Interest thereupon at the rate of 9% per annum taking into account
the yearly cost of living adjustments and inflation rate.
3.
Costs.
4.
Further and or alternative relief."
[2]
The application is opposed by the respondent and an Answering
Affidavit has been duly filed on its behalf. The applicant has also
filed a Replying Affidavit.
[3]
In its Answering Affidavit the respondent has raised a point of law
to the effect that the applicant is not entitled to pursue the matter
as it is time barred having arisen on 13th
September
2001 which is more than eighteen months taking into account that the
dispute was only reported in 2006.
[4]
The brief facts of this application are that the applicant was in
September 1999 appointed National Director of the respondent. He held
this position until 31st
January
2006 when he was dismissed. When the applicant was appointed the
National Director he was already in the employ of the respondent and
was serving as the C-ordinator of the Refugee Section. On 13
September 2001 the applicant wrote a letter to the respondent asking
to be paid an allowance for the job that he was doing for the
respondent in his capacity as the National Director. The applicant
only got a written response in 2006 by letter dated 20th
January
where he was told that the use of the respondent's motor vehicle was
compensation for the work that he was doing as the National Director.
The applicant did not like this and he reported a dispute.
[5]
At CMAC the respondent raised the issue of the matter being time
barred. The applicant denied that the matter was time barred. The
Commissioner then issued a certificate of unresolved dispute.
[6]
On behalf of the respondent it was also argued that since this point
was raised before the Commissioner at CMAC, the Commissioner was, in
terms of Section 81 (2)(b) of the Industrial Relations Act, 2000 (as
amended), supposed to conduct a fact finding exercise and make a
ruling on the matter. The respondent's attorney submitted therefore
that the application should be dismissed and the matter referred back
to the Commissioner to make a ruling.
[7]
We do not agree with the respondent's counsel. A Commissioner in the
process of conciliation only has a duty to manage the process and is
not an arbitrator or a judge. During conciliation the Commissioner's
duty is to help the parties to reach an agreement on a particular
issue and not to make a ruling. If the parties do not agree, the
Commissioner must simply issue a certificate of unresolved dispute.
[8]
The question for the court to decide is whether the dispute was
reported within eighteen months since the issue giving rise to the
dispute first arose. Section 76(2) of Industrial Relations Act states
that:-
"A
dispute
may not be reported to the Commission if more than eighteen (18)
months has elapsed since
the issue giving
rise to the dispute arose." (my
emphasis).
[9]
The operative phrase of this section is "since
the issue giving rise to the dispute arose." The
issue giving rise to the present application is the non-payment of an
allowance or salary to the applicant for the period that he performed
the duties of National Director of the respondent from September
1999.
[10]
During the month-end of September or October 1999, the applicant must
have realised that he was not being financially compensated for his
duties in the new position. He did not however raise an issue about
that until 13th
September
2001 when he wrote annexure "A" being the letter by which
he asked for an allowance for the extra work that he was doing in his
capacity as the National director.
[11]
The applicant got a written response by a letter dated 20 January
2006 advising him that his allowance or compensation was the fact
that he was enjoying the use of the respondent's motor vehicle for
personal needs.
[12]
It was argued on behalf of the applicant that before the applicant
got the letter dated 20 January 2006, there was no dispute yet, but
only a grievance. It was argued on behalf of the applicant that the
dispute arose on 20th
January
2006 when the applicant got the information that the respondent was
not prepared to financially compensate him for the duties of being
the National Director.
[13]
There is no definition of a grievance in both the Industrial
Relations Act and the Employment Act. There is however a definition
of a dispute in both Acts. In both Acts a dispute is described as
including a grievance as follows;
""dispute"
includes a grievance...."
Ordinarily
the word grievance means'a real or fancied cause for complaint."-
See
the Concise Oxford Dictionary 9th
edition.
The
applicant's attorney's argument therefore that the court should view
or consider the words grievance and dispute separately cannot be
accepted in the light of the definition in the two Acts which state
that a dispute includes a grievance.
[14]
In
this case however the applicant argued that the delay in reporting
the dispute was caused by the respondent's conduct. He said after
raising the issue with the respondent by the letter dated 13 th
September
2001, the respondent through Bishop Ncamiso Ndlovu kept on promising
him that the issue would be addressed and asked him to be patient.
The applicant said that he had no reason not to believe the Bishop. I
do not think that it would be just for the court to fault the
applicant for taking the employer at his word. It is the policy of
the law to encourage people to solve their problems amicably and not
to rush to court. I do not think that the applicant should be
punished for first engaging his employer on the issue before going to
CMAC to report a dispute. It will therefore be unfair on the part of
the applicant if the court were to throw out this application on the
technical ground that the dispute was reported outside of the
eighteen months period, when the cause of the delay was the employer.
For this reason, the court will dismiss the point of law raised.
There
is no order as to costs.
The members agree.
NKOSINATHI
NKONYANE
JUDGE -
INDUSTRIAL COURT
