IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 191/2000
In
the matter between:
JOANNA
LOPES APPLICANT
and
LEITES
MOTORS LIMITED RESPONDENT
CORAM:
NDERI
NDUMA: PRESIDENT
JOSIAH
YENDE: MEMBER
NICHOLAS
MANANA: MEMBER
FOR
APPLICANT: S.SIBANDZE
FOR
RESPONDENT: Z. JELE
JUDGEMENT
02/07/02
The
Applicant in this matter was employed by the Respondent Leites
Toyota, Mbabane as a customer relations officer on the 6th February
1995 and was in continuous employ of the respondent until the 10th
February 1999. Though the description of the Respondent was queried
in the Respondent's reply, it was not made an issue during the trial.
It
is common cause that the Applicant's position was declared redundant
and she was informed accordingly on the 10th February, 1999 that she
would be retrenched with effect from the 31st March, 1999.
It
is not in dispute that upon being informed of the Respondent's
decision, the Applicant chose not to serve the notice up to the 31st
March 1999 but opted to leave the employ immediately.
1
The
Applicant was unhappy with the decision of the Applicant for the
alleged reasons that the Respondent did not consult with her
regarding the retrenchment prior to the notification, that the
Respondent did not make efforts to avoid the retrenchment or to
obviate its effects on the Applicant and that the retrenchment was
done in bad faith and same was contrived to justify an unfair
termination with the sole intention of hiring her replacement which
she contends happened.
To
justify her contention of the malafide conduct by the Respondent,
Applicant recounted that at the material time she was at home on sick
leave and while there, the respondent sent a doctor to her with a
request that he obtained a blood sample to test her Aids status. She
added that she was targeted for retrenchment because the Respondent
thought that she had contracted Aids but not for any alleged economic
difficulties.
This
allegation was said by the Respondent to be spurious and figment of
Applicant's imagination as it was not conduct consistent with company
policy and had never happened to any other employee.
It
is common cause the Respondent had conducted a retrenchment exercise
of about eight employees due to the shortage of work in the body
workshop from January 1998, when the Central Transport Administration
(CTA) of Swaziland Government withdrew its work from Respondent's
workshop without any notice. The withdrawn work accounted for 50% of
the monthly labour turnover leading to the redundancy of the
identified positions.
A
statement of accounts between January 1998 and September 1998
reflected a decline of total value of workshop labour sales from
E276,551 in January 1998 to El58,465 in September 1998.
The
Applicant was not in a position to challenge the figures presented by
the Respondent but insisted that she was not identified in the
initial list that was sent to the Commissioner of Labour as one of
the persons targeted for retrenchment and that she was the only
person outside the body workshop department to be retrenched. This
added to her suspicion that she was not identified for retrenchment
for the economic reasons aforesaid, but due to her health conditions.
2
She
further told the court that she was not the last person to be
employed in her department yet employees like Busisiwe Nkambule who
had commenced work in 1998 was not targeted for retrenchment. She was
given a month sick leave from 19th July. Upon expiry of the leave,
she reported back to work but her manager Mr. Marais sent her back
home stating that she was not fit to resume work. It was then that a
doctor was sent to her with a request to obtain a sample for an Aids
test. She was however charged for the Doctor's consultation fee.
Dissatisfied
with the termination, she reported the dispute to the Commissioner of
Labour who was unable to resolve it and a certificate of unresolved
dispute was issued.
She
now seeks maximum compensation for unfair dismissal and notice pay.
She told the court that she was 31 years old and married but had no
children. She found an alternative job after eight months. At the
time of dismissal she was earning E1,900.00 per month.
She
admitted under cross examination that she received two months salary
in lieu of notice, was paid in lieu of leave days owed, additional
notice and severance allowance.
She
conceded that she was aware that the Central Transport Administration
had withdrawn its business from the Respondent leading to a fifty
percent (50%) decline in the turn over of the body shop. She was
agreeable that it was reasonable to reduce the work force in the
circumstances but being the only employee in the customer relations
department she believed that she was unfairly targeted for
retrenchment. She told the court that she was not aware if any one
was employed in the department to replace her contrary to her
contention in paragraph 6.3 of the Particulars of Claim that the
Respondent hired someone else in her position.
The
Respondent called Mr. Alastir Lyle to testify in support of its case.
He was the Managing Director of the Respondent for 23 years and knew
the Applicant. He explained that the Applicant was retrenched in 1998
as a result of a downturn in the bodyshop business after the
government of Swaziland had withdrawn its business from the company.
As
a result there was a need to trim the staff who in the main comprised
mechanics and their assistants.
3
The
labour department was notified of the development and the decision by
management.
Before
a decision was taken, a firm of Auditor styled KPMG was contracted to
study the situation and advise. A report was submitted by the firm,
showing that between January and September 1998, turnover had
declined from E276.551 in January to E158,465 in September.
As
concerns the Applicant's position, though it was not initially marked
for redundancy, it was decided that a customer relations officer was
no longer viable in the circumstances of the Respondent. The matter
was discussed with her by her immediate supervisor Mr. Marais. She
was given notice and was retrenched. She opted not to serve the
notice but was paid two months salary in lieu of notice and terminal
benefits. The witness conceded that he was not privy to the
discussion between Mr. Marais and the Applicant though he had
subsequently received a report from Mr. Marais. Mr. Marais was no
longer working for the Respondent and was not in Swaziland.
He
denied that the Applicant was retrenched due to her sickness and told
the court that that was contrary to company policy. He denied also
that anybody was hired to take her place. Existing staff fitted into
her functions.
Section
42 (2) (a) states that the services of an employee should not be
considered as having been fairly terminated unless the employer
proves that the reason for the termination was one permitted by
Section 36.
Section
36 (j) provides that it shall be fair for an employer to terminate
the services of an employee because the employee is redundant.
Redundant
employee is defined in Section 2 of the same Act to include an
employee whose contract of employment has been terminated because of
'marketing or financial difficulties', 'lack of orders or shortage of
materials' and 'contraction in the volume of business'.
The
Respondent has clearly demonstrated that between the months of
January and September, 1998 its volume of business, especially from
CTA had drastically contracted, necessitating reduction of its staff.
4
For
retrenchment to be valid, it must be substantially fair and just
towards the employees affected. As was stated in South African cases
of Antlantis Diesel Engineers (Pty) Ltd v NUMSA 1994 ILJ 1247 (A)
and: S Forza v Lekato Vet AG Ltd 1994 ILJ 408 (IC) U the employer is
entitled to decide in principle to retrench employees but not to
finalize and execute the decision without consulting the trade union
or employees involved.
The
court is satisfied that the decision to retrench was fairly made and
that upon resuming work from the sick leave, the Applicant was
properly consulted and informed of the decision to retrench her. She
was given adequate notice to prepare to exit the employment but she
had opted to leave immediately. She was however paid two months in
lieu of notice and was paid all the statutory money due to her.
The
court is further satisfied that her position of customer relations
was not vital to the operations of the Respondents due to the
financial difficulties at the time and that it was fair and just in
terms of Section 42 (2) (b) to terminate her services taking all the
circumstances of the case into account, including the reason for the
termination, the position she held and non availability of
alternative positions to be redeployed to.
The
court is satisfied that the decision was not influenced by her sickly
status.
In
the result, the Application must fail in its entirety. There will be
no order as to costs.
The
Members Agree.
NDERI
NDUMA
JUDGE
PRESIDENT - INDUSTRIAL COURT
5
