THE INDUSTRIAL COURT OF SWAZILAND
AT MBABANE CASE NO. 148/98
the matter between:
BY JOEL DLAMINI (Curator) APPLICANT
CARRIERS (PTY) LIMITED RESPONDENT
APPLICANT: P. R. DUNSEITH
RESPONDENT: Z. JELE
Applicant Joseph Dlamini now deceased and substituted by Joel Dlamini
in his capacity as curator of Applicant's estate was employed by the
Respondent as a contracts controller on the 14th April, 1972.
remained in continuous employment until the 1st February, 1997 when
he alleges his services were terminated on grounds of ill health.
Applicant brought the Application for unresolved dispute in terms of
Section 65 of the repealed Industrial Relations Act1 challenging the
termination on grounds of illness on the basis that the doctor's
certificate annexed to the Application indicated that the illness was
No. 1 of 1996
Commissioner of Labour was unable to resolve the dispute reported to
him in terms of Section 57 of the Act 2 and he issued a certificate
of unresolved dispute.
Applicant claims payment for the five (5) years outstanding before he
was due to retire in the sum of E196,740; 25 days salary in lieu of
leave in the sum of E3,725; maximum compensation for unfair dismissal
and pension from the Pension Fund.
was conceded by Mr. Dunseith for the Applicant that the claim for 5
years salary was untenable and so was the claim for pension as the
Pension Fund was managed by a different legal personna from the
following matters are common cause :
particulars of Applicant's employment are not in dispute. That the
Applicant was ill and was subjected to doctor's examination at the
work place and by an external doctor in Nelspruit.
the Applicant was paid a retrenchment package in the sum of E46/771
after he opted for it in preference to other options suggested to him
by the Pension Fund Administrator Mrs, Lorraine Bendall. He too
received terminal benefits.
the medical officer at the Simunye clinic Dr. B.Z. Radebe had
recommended early retirement on health grounds for the Applicant due
to the frequent visitation by the Applicant to the clinic for
hypertensive and diabetic condition.
the medical officer referred him to a Dr N. J. Visagie in Nelspruit
for a specialist opinion whereupon the Nelspruit doctor while
suggesting that the Applicant's condition was controllable,
recommended that he be placed on early retirement on the 16th
September, 1996 subsequent to which the Simunye medical officer Dr.
B.Z. Radebe recommended the early retirement on the 15th October,
is also common knowledge that the Respondent took up the issue of
early retirement on health grounds with the employee's pension fund
in South Africa whereupon the Pension fund doctors declined to grant
early retirement package which would have meant a continued 70%
salary pay to the Applicant until the date of his retirement but
instead offered alternative options contained in a letter dated 9th
December, 1997 subsequent to which the Applicant opted for a
retrenchment package as of the 31st January, 1997.
is in dispute is the circumstances which led to :
recommendation for retirement on health grounds by Dr. Radebe.
the Applicant voluntarily opted to remain at home while the
application for the retirement on health grounds was being pursued
with the employees' pension fund.
the Respondent asked him to stay at home; and
upon refusal by the Pension Fund to accept retirement of the
Applicant on health grounds he asked the Respondent to take him back
to work or infact the Respondent asked him to return to work but he
declined and opted for the retrenchment package.
versions by the Applicant and the Respondent on the issues in dispute
is mutually destructive.
the 17th October, 1996 Mr. Rocky Smith, Human Resources Manager wrote
a memorandum to the Applicant referring to a discussion they had on
the 10th October, 1996 with the intention to confirm the following :
the Applicant will proceed on sick leave as from 14th October, 1996
to 10th November, 1996 with full pay.
during the period, the Applicant will assist in completion of
documentation for "possible" ill health retirement.
on the 11th November, 1996 the Applicant was to report to work for
discussion on future arrangements of payments whilst awaiting the
outcome from the Pension Fund.
Applicant was invited to contact the Respondent if he had any other
Applicant did not respond to this memorandum.
memorandum followed the recommendation by Dr. B. Z. Radebe on the
15th October, 1996 recommending that Applicant be placed on
retirement on health grounds.
Applicant's Application to retire on health grounds was rejected by
the Pension Fund and Mr. Rocky Smith told the court that he informed
the Applicant accordingly and told him he could come back to work as
a transport controller but the Applicant declined stating that he was
frequently in hospital at Simunye.
Smith requested a meeting with respondent's management to discuss the
issue subsequent to which he wrote a letter to the management which
we did not have advantage to see. The letter was written on the 28th
November, 1996 and was responded to on the 1st December, 1996 by Mrs.
Lorraine Bendall, Pensions Administrator of the Respondent
stipulating the various options available to the Applicant. This was
produced as exhibit 'A2".
options were then discussed with the Applicant and he opted for
retrenchment as at 31st January, 1997 with a lump sum payment of
addition, the Applicant was paid terminal benefits in terms of the
Employment Act and he received a cheque in excess of E100,000.
Smith insisted that the offer of re-employment was made to the
Applicant in the presence of his union representative Mr. Cyprian
Dlamini but he opted for retrenchment option.
to the meetings, Mr. Smith wrote a memorandum dated 27th February,
1997 to the Applicant in which he referred to two meetings held on
the 24th and 26th February, 1997 with the Applicant.
Applicant had in terms of the Memorandum expressed unhappiness with
the unfair treatment from the company and considered that he had been
Smith told the court that the Applicant was unhappy with the Pension
Fund's rejection of his application for retrenchment on grounds of
ill health which would have entitled him to better benefits than the
retrenchment option he had taken. The Applicant according to Smith,
declined to return to work, nonetheless.
memorandum produced as "A3" appears to be a summarized
record of what transpired in the discussions between the Applicant
and the Respondent on the 24th and 26th February, 1997.
Applicant denies the allegations by Mr. Smith that he had been
requested to return to his work but had declined. He insisted that
Mr. Rocky Smith told him that his position had been occupied by
someone else and he could therefore not return to work.
told the court that as soon as he learnt that the Pension Fund had
rejected his application to be retired on grounds of ill health, he
had expressed his wish to Mr. Smith to return to work to no avail.
Applicant therefore states that he was unfairly dismissed by the
Respondent. Mr. Smith denied vehemently that he dismissed the
Applicant stating that exhibit 'A3" was self explanatory and he
had given it to the Applicant immediately after the discussions.
Smith added that once the Medical Board of Pensions Fund had ruled
that the Applicant's condition was controllable it was open for the
Respondent to take the Applicant back. He opted for the retrenchment
package but was not retrenched prior to his taking this option.
Applicant did not put any of the objections now alleged by him in
writing at all, he however reported the matter to the Commissioner of
Labour, several months after the alleged termination.
Applicant has the onus to prove that his employment was terminated by
the Respondent. Once that onus has been discharged it is for the
show that the dismissal was fair and in accordance with Section 36 of
the Employment Act.
Applicant said that it was not his intention to retire but the
process was initiated by the Respondent. He explained that he did not
know the contents of Dr. Radebe's letter.
was submitted by Mr. Dunseith for the Applicant that the Applicant's
version of events was detailed, consistent, and had a ring of truth
about it. That he was unshaken under cross examination, and his
version was more probable than that of the Respondent.
Dunseith admitted that DW2, Cyprian Dlamini's testimony was not
satisfactory since he had little memory of what had transpired. He
could not remember the sequence of events. This he said should not
fault the Applicant's case as the events happened a long time ago and
as Mr, Smith had told the court about twenty meetings took place on
testimony, Mr. Dunseith said confirmed Applicant's case in material
respects that he wanted to return to work but the Respondent insisted
that his place had been filled up.
Applicant was a contracts controller between 1972 and 1997. He had
only five (5) years to retirement age. He was a senior man and the
court does not understand why if he had wanted to return to work
after his application for retirement on the basis of ill health was
rejected, he did not put his request in writing especially if Mr.
Smith had declined to take him back and was desirous to take the
matter up with the union and the Commissioner of Labour.
Applicant did not object in writing to the assertions contained in
exhibit 'A3" written to him by Mr. Smith alleging that he had
requested not to return to his position after his disability claim
was rejected by the Pension Fund.
is inconceivable that Mr. Smith would have written the Memo 'A3"
on the 27th February, 1997 after refusing to take the Applicant back
because he had already filled up his position.
Smith did not strike the court as a dishonest person, his explanation
as to what happened was sensible, reasonable and probably true.
Smith's position was fortified by exhibits A1, A2 and A3 produced by
the Applicant himself. The version told by the Applicant was
inconsistent with exhibit "A3" which he did not respond to
in writing at all.
underlying reasons for the Respondent wanting to get rid of the
Applicant was advanced by the Applicant. He had a good work record
save for his constant visitations to hospital which did not impair
his ability to work.
court cannot read anything to the allegation by the Applicant that he
had not initiated the retirement process himself. This appears to
have been initiated by Dr. Radebe in his memorandum of the 15th
October, 1996. There is no reason to doubt that the doctor's
recommendation was done in good faith. The court cannot put much
reliance on Cyprian Dlamini's testimony, as the same was inconsistent
in material respects.
the result, the Applicant has failed to prove that he was dismissed
by the Respondent.
Application fails in its entirety.
will be no order as to costs.
PRESIDENT - INDUSTRIAL COURT