IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 70/98
In
the matter between:
NGAZANE
VILANE & 2 OTHERS
and
THE
SWAZILAND GOVERNMENT. 1st RESPONDENT
THE
ATTORNEY GENERAL. 2ND RESPONDENT
CORAM
NDERI
NDUMA: PRESIDENT
JOSIAH
YENDE: MEMBER
NICHOLAS
MANANA: MEMBER
FOR
APPLICANT: SIPHO MOTSA
FOR
RESPONDENT: ZANDILE MATSE
JUDGEMENT
ON SLEEPOUT ALLOWANCE CLAIMS
5/2/2002
The
three applicants lodged a notice of motion seeking inter alia an
interim order in the following terms:
1. Directing
the Principal Secretary and/or Under Secretary (Administration) both
of the Ministry of Public Works and Transport on behalf of the 1st
Respondent to:
1.2. pay
the Applicants their sleeping allowances on or before the first day
of May. 2001 and continue to pay such sleep out allowances claimed in
terms of a Court order dated the 30th May, 2000.
1
The
order of the 30th May 2000 reads as follows:
1. After
hearing the representatives of the parties and by consent thereof: IT
IS ORDERED THAT A FURTHER ORDER IS GRANTED IN THE FOLLOWING TERMS;
That
the 1st Respondent pays the Applicants a sleep-out allowance each
time they sleep away from their duty stations.
The
Applicants, subsequent to this order and while they performed
carpentry work at Ngwenya and Lamgabhi within Mbabane area, submitted
claims for sleep-out allowance. Payment was declined hence the
application before court.
The
Respondent in opposition to the claims sought leave to lead oral
evidence of one Raymond Mkhululi Mamba, the Chief Buildings Engineer
and that of Mandla Shoti Zulu, the Clerk of Works, Building
Department stationed at Mbabane.
The
totality of their evidence was that the Applicants' claims were
invalid because they did not work outside their duty stations on the
days in respect of which the sleep-out allowance was made hence the
same were rejected by the Respondent.
Mr.
Mamba submitted a map of Swaziland and explained to the court that
for the purposes of the Buildings Department, the country was divided
into five Sectors, namely; Mbabane, Piggs Peak, Manzini, Nhlangano
and Siteki.
That
each sector had a depot where the Clerk of Works was based and where
building materials and employee records were kept.
That
each sector was considered a duty station for the workers employed to
work on various sites in the particular sector .
That
the Applicants were provided with tent-accommodation daily and
transport fortnightly at the various sites and therefore were not
eligible for any sleep-out allowance while they worked in any site
within a sector.
2
That
usually the Applicants were based on one site until the project was
complete and would with their consent be moved to another site either
within the sector or elsewhere.
It
was explained to the Applicants that they would only be entitled to
claim sleep-out allowance if they were assigned duties outside their
designated sector.
Mr.
Mamba added that at times the Artisans were transfered with their
consent to another Sector if there was no construction work in their
sector and would be provided with tent accommodation in the new duty
station and would then not be eligible for sleep-out allowance.
The
evidence was corroborated by the Clerk of Works.
The
Applicants however insist that their duty station is the depot and
that they were entitled to a sleep out allowance while stationed at
various sites within the Sector. They argued that the tents
accommodation was not suitable for family habitation and therefore
they were forced to buy food for themselves in the tents and at the
sametime buy subsistence provisions for their families at their
respective homes.
It
is apparent that the Artisans have no duty to perform at the depot
but only report there for administrative purposes and to receive
their salaries at the end of the month.
The
applicants have worked for many years for the Respondent as
carpenters and have never been paid sleep out allowance while they
were stationed in their sector of employment. That this practice had
become a custom of the Department until this claim was lodged is
quite clear.
Whereas
the court was not given the proper genesis of the sectorial
demarcations I am satisfied that the Applicants for a long time were
aware that they were employed to work in a sector and not at a depot.
That they knew they were entitled to sleep out allowance whenever
they worked outside the sector. Their current claim is in respect of
days spent within the sector.
3
According
to General Order A410, which is a guideline for the administration of
subsistence allowances to employees while on official duties in
Swaziland, an employee is entitled to the various subsistence
allowances, including sleep out allowance if he is absent from his
duty station engaged on official duties.
The
question that arises is whether a sector as described by the
Respondent can be construed to be a duty station for the purposes of
payment of subsistence allowances.
A
station is a place or building where a person or thing stands or is
placed especially, habitually or for a definite purpose according to
the Concise Oxford Dictionary 9th Edition.
A
duty station therefore, is that place or building where a person is
habitually placed, for the purpose of working.
According
to the evidence before us, the Applicants are not stationed in a
building but are placed on various sites within a designated sector.
That the nature of their work in the category of maintenance of
houses dictates that they move from one site to another usually after
a specific project is complete. They are accommodated at the site
during the tenure of the project.
It
is the court's considered view that it would be impracticable to pay
out sleep out allowances in the circumstances of the Applicants due
to the nature of their work. That the division of the work station
into sectors, is reasonable and economically feasible on the part of
the Respondent. Determining the matter otherwise would mean that the
Applicants would perpetually be entitled to sleep out allowance since
they are fully on out door work.
It
is essential, however that terms and conditions of service of the
workers involved in the building construction be stipulated to them
in writing before they are employed and that the remuneration payable
to them take consideration of the outdoor nature of their work to
avoid dissatisfaction expressed by the Applicants.
4
Having
said that, the claims by the Applicants have no merit and same are
dismissed with no order as to costs.
The
members agree.
NDERI
NDUMA
JUDGE
PRESIDENT - INDUSTRIAL COURT
5
