Monday Dlamini Vs Industrial Development Company of Swaziland (102/2020) [2020] SZIC 159 [24 November 2020]
The applicant is a former groundsman of the respondent, who was first employed on the 1st of January 1991 and occupied the position until he reached retirement at 60 in February 2018. The applicant instituted this application in terms of rule 14 of the Rules of the Court where he wants the respondent to pay him severance allowance which he computed to be E75 194.60. The applicant also seeks a costs order against the respondent. The applicants wants the Court to determine whether the respondent is liable to pay him severance following the termination of his employment by virtue of retirement. His argument is that the retirement age is set by the employer unilaterally so when he retires, he retires at the instance of the employer and this warrants the payment of severance package.
The respondent raised a point of law that the Court has no jurisdiction to hear the matter because the respondent stopped paying severance packages to retired employees on the 2nd of June 2015. This means that when the applicant retired, he knew that he would not be receiving severance. Also, according to the respondent, the dispute arose on the 2nd of June 2015 when the applicant got a copy of the memo that severance will no longer be paid. The respondent argues that if the applicant was aggrieved at this, he should have reported a dispute within 18 months from the 2nd of June 2015. The applicant reported the dispute on the 24th of April 2019, which is more than three years since the dispute arose. The respondent was raising the point that the applicant is improperly before the Court.
In response, the applicant stated that the respondent raised this point of law in the wrong forum. The respondent should have raised this at the Conciliation Mediation & Arbitration Commission (CMAC) during the conciliation process. It was the applicant’s argument that the Court has no jurisdiction to decide on issues that were not conciliated upon. The applicant contends that the point of law was not raised until after the certificate of an unresolved dispute was issued, which has also not been challenged by the respondent. The applicant does not agree with the dates stated by the respondent, according to the applicant, the respondent took a final position on the matter on the 5th of April 2020. This is the date according to the applicant when the dispute first arose.
Analysis of Arguments
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The Court had the task of determining which of the two dates contended by the parties should be considered.
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The Court noted that the respondent first gave notice to the applicant that he would be retiring on the 15th of February 2018, through a letter signed by the Chief Executive Officer.
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The respondent through the memo of 2 June 2015 was correcting a practice it had been doing all along and was now guided by both case law and sections 34 & 36 of the Employment Act of 1980.
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The respondent sent a letter to the applicant through his union SUFIAW stating reasons why he would not be receiving his severance.
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The applicant then decided to escalate the issue to CMAC and this is the date the Court will consider as the day the dispute arose.
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Considering the date when the memo was issued and the day the applicant filed the report at CMAC, it’s the Court’s view that the applicant was not out of time.
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According to the Court, the respondent should have raised the issue of time frame at CMAC, and the Certificate of Unresolved Dispute doesn’t show that they attempted to raise this issue.
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The respondent should have raised the legal objection at CMAC.
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It was the Court’s finding that when the report was lodged by the applicant, it was still within time.
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The Court failed to find credence that it does not have jurisdiction to hear and determine the current application.
Judgement
The Court decided that:
(1) The point of law is dismissed.
(2) There is no order as to costs.
Dec 31 2020 1:36PM