IN
THE
INDUSTRIAL
COURT
O F
SWAZILAND
CASE
NO. 34/85
In
the matter between:
SIMON
SIHLONGONYANE Applicant
VS
BUILDMORE
(PTY) LTD Respondent
CORAM
J.
A. HASSANALI PRESIDENT
S.
MOTSA FOR THE APPLICANT
P.
DODDS FOR THE RESPONDENT
MESSRS
B. STEPHEN AND A.N. MATSEBULA ASSESSORS
AWARD
DELIVERED
28-08-86
HASSANALI,
J.
In
this matter, the applicant is claiming
from
the
Respondent -
(1) the
payment of E1,200 being S months compensatian for his unfair
dismissal.
(2) the
payment of E201.55 being his wages far the month of April, 1985.
Mr.
Dodds appearing for the Respondent Company raised as a preliminary
objection that the applicant will not be entitled to claim
compensation from the Respondent on the ground that no report on his
unfair dismissal had bean made to the Labour Commissioner as
envisaged under Sec.51(1) of the Industrial Relations Act No.4 of
1980. He stated that the certificate of Unresolved Dispute issued by
the Labour Commissioner did not correctly reflect the dispute that
had been referred to him for investigation. The dispute referred to
him was one related to non payment of the Applicant's April wages and
not to unfair dismissal. Therefore he said,
2
the
remark "Unfair dismissal" in the Certificate of Unresolved
Dispute was uncalled For. Mr. Motsa appearing far the applicant
agreed with Mr. Dodds an this point but said that it uses erroneously
entered by a junior officer in the Labour Department. Nevertheless he
stated that this Court still had the discretion to hear and determine
this matter even though no such report had been made to the Labour
Commissioner.
Sec.
50(1) of the Industrial Relations Act No.4 of 1980 sets out as to who
should report a dispute to the Labour Commissioner.
It
provides
that an employee could do so provided that no organisation is active
in the undertaking concerned in the dispute.
In
Sec. 51(1) of the aforesaid Act it is stated that a report of a
dispute shall be made in writing, signed by the person making the
report and shall specify the following matters -
a) the
parties to the dispute
b) the
addresses of t
each
of the parties.
c) particulars
of all the issues stating precisely their nature and
scope
(underlined
by me)
d) what
steps, if any, have been taken for the settlement of the dispute
either in accordance with the provisions of a joint industrial
Council constitution, a collective agreement regulated under Part VI,
a Works Council or otherwise.
Under
Sec. 54 (4) if the Labour Commissioner is satisfied that no useful
purpose would be served by continuing to conciliate under Sec.
54 (1), (2) and (3), he may certify that
3
that
the dispute is an unresolved dispute persuant to Sac. 50(1).
However
under Sec. 58(2) if the dispute remained unresolved, either party to
such a dispute may make an application or the Labour Commissioner may
refer the matter to the Court far the determination of such dispute.
Therefore
after careful consideration of the aforesaid sections, it is evident
that the Court can only hear and determine a dispute which remains
unresolved after it has been previously referred to the Labour
Commissioner far settlement by means of conciliation. The proof of
such referral should however be supported by a certificate which
should state that the dispute is unresolved and should be signed by
the Labour Commissioner.
In
this application the only dispute that had been referred to the
Labour Commissioner for settlement by conciliation
was
one relating to nan payment of the applicant's wages for April, 1985.
The Applicant's unfair dismissal was at no stage raised as a dispute
with the Labour Commissioner. The compliance with the provisions of
Sec.51(1) in my view is peremptory and as such the dispute re unfair
dismissal cannot be referred to this court until the Labour
Commissioner has investigated into it and issued a certificate of
Unresolved Dispute. It follows therefore that since no such report
was made to the Labour Commissioner, the Court dues not have the
jurisdiction to hear the complaint. Consiquently I uphold the
objection raised by Mr. Dodds and dismiss the applicant's application
on the dispute re unfair dismissal.
4
On
the question of non
payment
of
wages
the
applicant
maintained that despite his complaints to bath Mavuso, the site Clerk
at Nhlangand and to his Head Office in
Mbabane,
he was not paid. One Shongwe, a witness for the Respondent, said that
on envelop was handed over to the applicant by Mavuso, but he did not
know as to what it contained. Since Mavuso was not called to give
evidence in this respect, I cannot place anyreliance on the evidence
of Shongwe. There-fare on the evidence presented I have no other
alternative but to hold that the applicant was not paid his April
wages.
In
the circumstances I order the Respondent to pay the applicant a sum
of E201.55 being his wages for April, 1985. I enter this as an award
of this Court.
My
Assessors agree with my decision.
J.
A. HASSANALI
PRESIDENT
