IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 348/2001
In
the matter between:
LUCKY
GIFTUS MAHLALELA APPLICANT
and
UMBRELLA
MANAGEMENT SERVICES
CO
(PTY) LTD RESPONDENT
CORAM:
NDERINDUMA: PRESIDENT
JOSIAH
YENDE: MEMBER
NICHOLAS
MANANA: MEMBER
FOR
APPLICANT: M. SIBANDZE
FOR
RESPONDNET: Z. JELE
JUDGEMENT
30/05/02
The
Applicant seeks by way of an urgent Notice of Motion an order in the
following terms:
1. Respondent
be ordered to pay Applicant's arrear salaries in the amount of
E63,000.
2. Respondent
be ordered to pay Applicant's December salary in the amount of
E15,000.
3. Further
and/or alternative relief.
4. Costs
on the scale as between attorney and own client.
The
application is founded on the Affidavit of Lucky Giftus Mahlalela.
Upon close of pleadings, the parties by consent applied that the
matter be
1
referred
to oral evidence. The matter was referred consequently to oral
evidence whereupon the Applicant testified and a Mr. Lesotho D.Kock
testified for the Respondent.
The
thrust of the Applicant's case is that he was employed by the
Respondent in terms of a contract annexed to the Application marked
'LMI'.
The
terms of the contract were that he was appointed to the position of a
General Consultant with effect from 1st June, 2001 and was placed on
a three months probation period subsequent to which he was to be
permanently employed. His performance was to be reviewed at least
once a month during probation. He was to report to the Umbrella
Management Services Company, Swaziland Executive Director, Dr. Mamba
and was to be paid a monthly allowance of E15,000 (all inclusive), A
curious clause states that "you shall be responsible for any
income tax deductions".
In
respect of hours of work, the contract reads "All staff will
work a flexible daily programme which has been set up to be mutually
convenient for both staff and customers. In addition you are required
to remain available at short notice at all times". The working
hours were then stated to be 8a.m. to 4.30p.m. He was also to be
"required to perform other duties" from time to time.
The
Applicant was then requested to " confirm your acceptance of the
above position and terms of employment".
The
letter of appointment was signed by Dr. B.B. Mamba, the Swaziland
Executive Director.
The
Applicant accepted the terms of contract in the letter 'LM1' and
started work in earnest From the first month, June 2001, the
Applicant wasn't paid in full, he was paid in bits and pieces as
reflected in paragraph 9 of the Founding Affidavit. He tried to
settle the issue of non payment amicably but was eventually forced to
seek the assistance of the court when it became clear that the
Respondent was not ready to honour its part of the bargain in full or
at all.
2
On
the 19th October, 2001 the respondent wrote a letter marked 'LM2'
purporting to re-employ the Applicant on new terms, stating that his
earlier employment had lapsed upon unsatisfactory completion of
probation at the end of August.
The
Applicant denies that his services were ever terminated and states
that from June, 2001 up to mid November, he continued to work inspite
of the difficulties he was experiencing with the hope that he would
eventually be paid. That he never accepted the revised terms of his
employment but instead chose to resign in January, 2002 after it
became clear that the Respondent was acting in bad faith or would
infact not honour its contractual obligations.
On
the contrary, Dr. Mamba who deposed to the Answering Affidavit denies
that the Respondent ever took up the Applicant as an employee but
merely engaged him through a consultancy management service
incorporated by the Applicant himself. The letter of appointment
"LM1" however tells a completely different story. The
Applicant was employed as a consultant in his personal capacity and
was to be paid a monthly remuneration, as opposed to a fee, per work
done, that is associated with consultancy services.
The
contract stated that the Applicant's performance was to be reviewed
on a monthly basis and that during the probationary period,
termination of contract would be on two weeks notice.
No
such notice was ever given the Applicant to terminate his employment
up to the time the letter dated 19th October, 2001 was written
purporting to re-employ him. The contract does not also indicate that
the Applicant was to file any reports nor does it state that payment
of the allowance was dependent on production of any such report.
At
the end of August, the Managing Director Mr. Chababa came to
Swaziland to review the performance of the Applicant. He did not
communicate in writing the result of his appraisal but what has
clearly come out of the evidence from both parties is that the
Applicant between August and November did various work for the
Respondent and was continuously at the Respondent's office at
Manzini. Chababa's allegation in the affidavit that he advised
Applicant that his services had been terminated is neither supported
by oral nor documentary evidence.
3
Indeed
to the contrary, Mr. D Kock admits attending business meetings with
the Applicant in November and in October, he met Applicant in Arnot
South Africa, and gave him R30.000 for running the Manzini office.
In
terms of the employment Act No. 5 of 1980, once the probation period
has expired, it is immaterial whether there is a written confirmation
of continued employment or not. If the employee continues to work for
the employer, he becomes a permanent employee to whom Section 35 of
the Act applied.
Termination
for failure to satisfactorily meet the employers expectation must be
done within the probation period and not after. Once the probationary
period expires, termination must be in terms of Section 36 as read
with Section 42 of the Act.
Neither
Dr. Mamba nor Chababa came to give oral evidence but instead Mr.
D.Kock who had very scanty knowledge of the going ons in Swaziland
especially between the Applicant and Dr. Mamba gave evidence which
materially contradicts that of Dr. Mamba in the Founding Affidavit
and is also at cross purpose with the contract of employment.
The
document 'LM1' speaks with sufficient clarity and read as a whole,
discloses a contract of employment between the Applicant and the
Respondent contrary to the assertions of Dr. Mamba and Mr. D. Kock
that he was merely hired as a consultant.
Upon
considering the oral evidence of the Applicant and that of Mr.
D.Kock, the court is satisfied that the Applicant worked for the
Respondent, as a General Consultant from the 1st June, 2001 to mid
November at a monthly allowance of E15,000.
That
the Respondent has fully paid the Applicant for the months of June,
July and August but he was not paid the monthly allowance for
September, October and November.
The
Applicant was unable to attend work partly in November and during
December due to lack of funds to operate as a result of non payment
of his salary by the Respondent. He however continued to tender his
service until he opted to resign at the beginning of January, 2002.
4
The
Applicant in the circumstances should be paid a monthly allowance up
to the month of December 2001 as he is deemed to have remained in the
employ of the Respondent until the time of his resignation.
The
Applicant will thus receive a monthly allowance for the months of
September, October, November and December at the contractual rate of
E15,000.
In
the result, the Respondent is to pay E60.000 to the Applicant.
As
a mark of disapproval of the malafide conduct of the Respondent as an
employer, and in delaying the prosecution of this matter, the court
orders that it also pays the costs of this Application.
Since
the Respondent did not remit PAYE taxation to the Commissioner for
Taxes for the months of June, July and August, 2001, the Commissioner
is notified of this judgement to act as she deems fit.
The
Members Agree.
NDERI
NDUMA
JUDGE
PRESIDENT - INDUSTRIAL COURT
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