THE INDUSTRIAL COURT OF SWAZILAND
the matter between:
SIBUSISO NKAMBULE APPLICANT
NATIONAL HOUSING BOARD RESPONDENT
NKONYANE: ACTING JUDGE
APPLICANT: J. M. MAVUSO ( JUSTICE MAVUSO & COMPANY)
RESPONDENT: W. MKHATSHWA (MTHEMBU MABUZA ATTORNEYS)
 This is an
application for the determination of an unresolved dispute brought by
the Applicant against the Respondent in terms of the Industrial
Relations Act of 2000.
 The application is
thus accompanied by a Certificate of Unresolved Dispute and is marked
annexure "C" thereof.
 The Applicant's
claim is that he was constructively dismissed by the Respondent. He
is therefore now claiming that the Respondent be ordered to pay him
months notice - E4,150.00
notice - El,509.00
allowance - El,883.60
months maximum compensation - E49,800.00
 The Respondent
denied that it constructively dismissed the Applicant.
 The Applicant
in its particulars of claim stated in paragraph 9 as follows and I
submits that his dismissal was constructive and unfair, in that the
Respondent allowed him to go on study leave, whilst behind his back,
it proceeded to advertise his position, thus effectively dismissing
 In response the
Respondents stated as follows in its Replies in paragraph 9 and I
are denied and the applicant is put to strict proof thereof. In
particular the Respondent denies that it dismissed the applicant. The
applicant made a request for long terms paid study leave without
securing the boards approval abandoned his employment."
 In his evidence
before the court the Applicant stated that he was employed by the
Respondent in 1992 as an Accountant. He said he earned a gross salary
of E4,150.00 per month. He said he was in continuous employment until
 The Applicant's
evidence further revealed that on the 19th
January 1995 he learnt that Government had granted him scholarship to
pursue a Chartered Secretaries and Administrators course at Technikon
Natal in Durban starting on the 30th
January 1995. It was a full time study course running for three
years. On the following day the 20th
January 1995, the Applicant approached the Head of Human Resources
Department for a paid study leave. The Head of Department advised the
Applicant to approach the Managing Director as there was no policy in
the company regulating applications for long term paid study leave.
 The Applicant wrote
a memorandum to the Managing Director via the Chief Accountant's
office. The memorandum is annexure "D" of the Applicant's
application. The Managing Director was on leave at that time. The
Applicant said he was advised by the Chief Accountant to approach the
Managing Director at his residence. The Applicant did so. The
Applicant said he showed the Managing Director the memorandum and
they discussed the issue of the study leave. The Applicant said the
Managing Director verbally approved his application.
 The Managing
Director testified before the court on behalf of the Respondent. He
denied that he approved the application for the study leave. He said
he did not, and could not have done that as he was on leave and also
because there was no policy in place for long term study leave at the
 The Managing
Director ( RW1) told the court that he tried to reason with the
Applicant that his request could not be entertained as there was no
policy at the workplace to back it. RW1 said he made it clear to the
Applicant that he understood the position that he found himself in
and that if he left, he would be taken to have abandoned his
revealed that the Applicant's position was advertised in the Times of
Swaziland on Friday 27th
January 1995. In his evidence in chief the Applicant said he stopped
working on that same date, the 27th
1995. The post was therefore advertised when he was still around. If
therefore he had got a verbal approval from RW1 to proceed on study
leave, it is not clear why he did not immediately take up the issue
and find out why his post was being advertised if he still regarded
himself, as an employee of the Respondent.
 The Applicant said
he did not immediately address the issue of his post being advertised
because he was busy at school. During cross examination, he did not
want to commit himself as to the exact date that he left the country.
He only said he left towards the end of January 1995. It was clear to
the court that the Applicant did not want to commit himself as to the
exact date of his departure because he did not want it to appear that
he was still in the country when his post was advertised and did not
challenge the Respondent's action.
 The Applicant's
conduct of not challenging the Respondent's action immediately points
at one direction, and one direction only, namely that he knew that
the Respondent's Management or Board had not approved his departure.
 From the evidence
presented before the court it was clear to the court that the
Applicant had made up his mind that he was leaving to pursue his
studies. In his memorandum he stated that it was his long standing
desire to further his studies, he said that that was hindered by
Government's negative approach in sponsoring courses offered
the country. The Government having granted him the
scholarship to study outside the country, the Applicant clearly did
not want to miss that opportunity,
 The court will
therefore reject the Applicant's evidence that he got a verbal
approval from RW1 to proceed on long term study leave. The court
accepts RWl's evidence that he did not give any verbal approval to
the Applicant's application for full time study leave. The court
finds that it was highly unlikely that RW1 could have done that as it
was a known fact at the Respondent's undertaking that there was no
policy providing for that kind of leave. It is not clear therefore
why RW1 could put his job on the line by doing something that was
outside the company policies.
From the facts of this
case, it became clear to the court that the Applicant deliberately
left his employment because he wanted to pursue his studies and he
did not want to miss that opportunity. It was also clear from the
evidence that the Applicant clearly appreciated the consequences
RW1 told the court why
they had to quickly advertise the post. He said they needed someone
to fill the Applicant's post soon because it was close to the end of
the financial year and the auditors would be coming.
The question that must
be answered in the light of the evidence before the court is whether
the Applicant was dismissed by the Respondent or not.
The Applicant stated in
his particulars of claim that he was constructively dismissed by the
Respondent as he was allowed to go on study leave, but his post was
advertised behind his back. As already found by the court, the
Applicants did not get the approval to go on study leave. Further,
his post was not advertised behind his back. It was advertised on
the basis that he had elected to leave the respondent's employment
to pursue his studies. When the advert was first run he was still in
the country as he said he stopped working at the Respondent's place
on the 27th
January 1995, the same date that the advertisement appeared in the
It follows therefore
that the Applicant has failed to show that he was dismissed by the
Respondent in circumstances that amounted to constructive dismissal.
The evidence before the
court showed that it was the Applicant who terminated his service to
the Respondent. John Grogan in his book "Workplace Law"(Juta
& Co) &"
Edition (2005) at page 82 states that:
employee and the employer may terminate the contract of employment
by giving the statutory, agreed or reasonable notice. When the
employer effects termination, it is termed 'dismissal'; termination
by the employee is known as
or resignations occurs only when
employers or the
employees, as the case may be, elect to abandon the contract."
 The Applicnat in
this case abandoned the contract because he wanted to pursue his
studies at Technikon Natal in Durban. His employer had not granted
him the permission to go. He therefore took a deliberate act of -
abandoning the contract of employment that existed between him and
 From the facts of
the case, there was no way that the court could find that the
Respondent dismissed the Applicnat.
 The evidence
revealed that the Applicnat left his place of work on very short
notice. The Respondent bore the inconvenience of scouting for a
replacement within a short period. This case therefore is one where
the court will be justified to make an order for costs.
 Taking into
account the totality of the evidence presented before the court, the
court will make the following judgement:
The application is dismissed.
The Applicant is ordered to pay the costs.