Ziyane v A.J. Electrical (Pty) Ltd (216 of 2021) [2022] SZIC 111 (5 January 2022)

# Ziyane v A.J. Electrical (Pty) Ltd (216 of 2021) [2022] SZIC 111 (5 January 2022) [ __](https://api.whatsapp.com/send?text=https://eswatinilii.org/akn/sz/judgment/szic/2022/111/eng@2022-01-05) [ __](https://twitter.com/intent/tweet?text=https://eswatinilii.org/akn/sz/judgment/szic/2022/111/eng@2022-01-05) [ __](https://www.facebook.com/sharer/sharer.php?u=https://eswatinilii.org/akn/sz/judgment/szic/2022/111/eng@2022-01-05) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://eswatinilii.org/akn/sz/judgment/szic/2022/111/eng@2022-01-05) [ __](mailto:?subject=Take a look at this document from EswatiniLII: Ziyane v A.J. Electrical \(Pty\) Ltd \(216 …&body=https://eswatinilii.org/akn/sz/judgment/szic/2022/111/eng@2022-01-05) [ Download DOCX (31.7 KB) ](/akn/sz/judgment/szic/2022/111/eng@2022-01-05/source) Toggle dropdown * [Download PDF](/akn/sz/judgment/szic/2022/111/eng@2022-01-05/source.pdf) Report a problem __ * Share * [ Download DOCX (31.7 KB) ](/akn/sz/judgment/szic/2022/111/eng@2022-01-05/source) * [Download PDF](/akn/sz/judgment/szic/2022/111/eng@2022-01-05/source.pdf) * * * * * Report a problem __ ##### Ziyane v A.J. Electrical (Pty) Ltd (216 of 2021) [2022] SZIC 111 (5 January 2022) Copy citation * __Document detail * __Related documents Citation Ziyane v A.J. Electrical (Pty) Ltd (216 of 2021) [2022] SZIC 111 (5 January 2022) Copy Media Neutral Citation [2022] SZIC 111 Copy Court [Industrial Court of eSwatini](/judgments/SZIC/) Case number 216 of 2021 Judges [Msimango AJ](/judgments/all/?judges=Msimango%20AJ) Judgment date 5 January 2022 Language English Court Roll [Download PDF](/akn/sz/judgment/szic/2022/111/eng@2022-01-05/attachment/ziyane-v-aj-electrical-pty-ltd-2022-szic-111-5-january-2022.pdf) (161.1 KB) Summary Read full summary * * * Skip to document content _**IN THE INDUSTRIAL COURT OF ESWATINI**_ **HELD** **AT MBABANE** Case No.216/2021 # In the matter between: **THAMSANQA ZIYANE** And Applicant 10. **ELECTRICAL** **(PTY)** **LTD** Respondent # **Neutral Citation:** Thamsanqa Ziyane vs. A.J. Electrical (Pty) Ltd (216/2021) [[2021] SZIC 111](/akn/sz/judgment/szic/2021/111) (05 January, 2022) **Coram:****MSIMANGO-ACTING** **JUDGE** _(Sitting_ _with_ _Mr._ _S._ _Mvubu_ _and_ _Ms._ _N._ _Dlamini_ - _Nominated Members of the_ _Court)_ **DATE HEARD: DATE DELIVERED:** 12th November, 2021 05th January, 2022 _SUMMARY:_ _The_ _Applicant_ _alleges_ _that_ _his_ _services_ _were_ _unfairly_ _terminated_ _by_ _the Respondent in that he was not dismissed for misconduct, and that his dismissal was not preceded by a disciplinary hearing. Further that, he was an employee to whom_ _**Section 35(2) of the Employment Act**_ _(as Amended) applied. Hence, his dismissal could only be for a reason provided in_ _**Section 36 of the**_ ___**Act.**_ ### JUDGEMENT 1. The Applicant is Thamsanqa Ziyane, an adult male of Bhunya, in the Manzini Region. 2. The Respondent is A. J. Electrical (Proprietary) Limited, a company registered and incorporated in terms of the company laws of the Kingdom of Eswatini, having its principal place of business at corner of 3rd Street and Tabankulu Streets, Matsapha Industrial Site in the Manzini Region. 3. The Applicant has brought an application before this Honorable Court for determination of an unresolved dispute. 4. The application was duly served on the Respondent on the 3rd July 2021, and was set down for hearing on the 16th August 2021. The Respondent filed and served a Notice ofintention to oppose, but did not file any Reply to the application. 5. On the 28th October 2021, Applicant filed an application as per **Rule** **19** **of the Rules of this Court,** praying that the matter proceeds as an _exparte_ trial, the Respondent having failed to deliver a Reply within the extended period granted by the Court. The application was duly served on Respondent's Attorneys and it was not opposed, as a result the matter proceeded _exparte._ 6. The Applicant testified that he was employed by the Respondent as an electrician on the 16th April 2018 until 12th April 2021, when his services were terminated. He stated that his employment was based on three (3) months fixed term contracts. The contracts were renewed after every three (3) months. 7. The Applicant also testified that he worked continuously without interruption from the date of his employment up to its termination. Furthermore, he was informed in writing by the Respondent just after he had finished work on the 12th April 2021 that his services would be terminated. He clarified that the employer had never informed him prior that his services would be terminated as a result of lack of projects. 8. It was Applicant's testimony that when his services were terminated, he was earning a monthly salary of not less than E2, 500.00 (Two Thousand Five Hundred Emalangeni). He explained that his salary was based on an hourly rate of E13.85 (Thirteen Emalangeni Eighty Five Cents) and that at times he worked overtime. 9. The Applicant argued that he was an employee to whom **Section 35(2) of the** **Employment** **Act** **of** **1980** (as amended) applied. Hence, his dismissal could only be for a reason provided for in **Section 36 of the Act.** Further that, termination on the account of operational requirements is regulated by **Section** **40** **of** **the** **Employment** **Act.** The mere fact that Applicant was not notified of the impending retrenchment against him and that he was not consulted prior to the termination of his services, such conduct is against the dictates of **Section 40 of the** **Act.** 10. In the circumstances the Applicant asserts that his dismissal was procedurally and substantively unfair, and claims payment as follows:- 1. Notice pay in the sum ofE2, 905.73. 2. Additional Notice pay in the sum of El, 072.00. 3. Severance pay in the sum ofE2, 641.00. 4. 12 months compensation in the sum ofE34,868.76. 11. **Section 40 of the Employment Act** provides as follows:- 1. **For the purposes of this Section the term "employee" shall be deemed not to include any** **employee.** 1. **engaged on seasonal** **contract,** 2. **engaged on a fixed contract of six weeks or less and which does not provide for re- engagement at the end of that** **period,** 3. **who is a casual** **employee.** 2. **Where an employer contemplates terminating the contracts of the** **employment** **of** **five** **or** **more** **of** **his** **employees,** **for** **reasons** **of** **redundancy, he shall give not less than one month's notice thereof in writing to the Labour Commissioner and the organisation (if any) with which he is a party to a collective agreement and such notice shall include the following information:-** 1. **the number of employees likely to become** **redundant,** 2. **the occupations and remuneration of the employees affected** , 3. **the reasons for the redundancies, and** 4. **the date when the redundancies are likely to take** **effect,** 5. **the latest financial statements and audited accounts for the undertaking,** 6. **what other options have been looked into to avert or minimize the** **redundancy.** 12. It is significant to point out that a termination on the account of operational requirements is regulated by **Section 40 of the Employment Act.** The mere fact that Applicant was not notified of the impending retrenchment against him and that he was not consulted prior to the termination of his services, such conduct is against the dictates of **Section 40 of the** **Act.** 13. Although Applicant was employed on a three (3) months fixed term contract which was perpetually renewed for three (3) years. In the case of **Nombulelo Matsebula and Another v Standard Bank Swaziland, Industrial Court Case No. 275/2000,** the Court had this to say:- _"Jt is very clear that the monthly contracts were aimed at circumventing the provisions of the Employment Act, by keeping the recruits on trial for about_ _sixteen_ _(16)_ _months_ _continuously and_ _at_ _the_ _same_ _time_ _deny_ _them_ _the protection to become employees to whom_ _**Section 35 of the Employment Act**_ _applied This way, the Respondent was able to keep them under probation for more than six (6) months and by so doing circumvented the provisions of the_ _Act"_ 14. In the case of **Bernard Hough v U.S.A Distillers (Pty) Ltd 20/11** **SZIC,** the Court stated that:- ## "The law requires that for a retrenchment to be valid it must be substantially fair and just towards the employees ciffected This means that a valid bona fide and fair reason must exist for the termination of the employee's services on account of operational reasons ....the employer is entitled to take the preliminary decision to retrench its employees on its own, however, the employer may not finalise that decision before consulting with the employee(s) involved... " 15. The Court stated further that:- ## "Employees to be retrenched need to be afforded a fair opportunity to make meaningful proposal to the decision to terminate them, and implicit in the requirement of a fair opportunity is the duty to give them reasonable notice of the same. Such notice must allow them time and space to absorb the shock brought about by the daunting prospect of losing their Jobs. Retrenchment employees must be cifforded the opportunity to come to terms _with the situation, reflect on it, seek advice and prepare for consultation and_ _only_ _then_ _can_ _a/air_ _process_ _and_ _genuine_ _consultation_ _begin_ _...The_ _duty to_ _engage_ _in_ _a_ _meaningful_ _and_ _genuine_ _consultation_ _process_ _is_ _owed_ _to_ _all employees from the lowest to the executive_ _level."_ * [16] Taking into account the evidence and circumstances of the case together with the failure by the Respondent to refute Applicant's evidence, the Court accordingly makes the following order: 1. The termination of the Applicant's services by the Respondent was both procedurally and substantially unfair. 2. The Respondent is hereby ordered to pay the Applicant as follows:- 1. Notice pay(less 10 days paid) El, 728.48 2. Additional Notice pay (4 days for each year worked) E941.80 3. Severance pay (10 days for each completed year) E2, 354.60 4. 8 Months compensation (for unfair dismissal) E23, 245.84 ### _Total_ _E28_ ___270.72_ 3. There is no order as to costs. [17] The payment aforementioned is to be made within thirty (30) days hereof. The Members agree. ### L.MSIMANGO **ACTING JUDGE OF THE INDUSTRIAL COURT** **For Applicant:** **For** **Respondent:** Mr.M.Motsa (Musa Motsa Attorneys) No Appearance #### __Related documents ▲ To the top >