Abner V. Kunene v Parmalat Swaziland (Pty) Ltd. (139/2001) [2003] SZIC 1 (30 January 2003)

The Application is for determination of an unresolved dispute in terms of Section 65 of the Industrial Relations Act No. 1 of 1996 now repealed by Act No.1 of 2000 as amended by Act No. 8 of 2000.

The dispute herein as alleged in the particulars of claim is that the Applicant was on or about the 3^rd October 1999 employed by the Respondent Parmalat Swaziland (Pty) Ltd as a sales representative. In terms of the written agreement of employment the Applicant was placed on probation for a period of three months effective from the 3^rd October 1999.

The Applicant in paragraphs 5 and 6 of the particulars of claim avers that on the 7^th May 2000 he was wrongfully and unfairly dismissed from work. That at the time of the aforesaid dismissal, he was an employee to whom Section 35 of the Employment Act 1980 applied because he worked for at least fourty working hours and had completed his probationary period.

It is not in dispute that the initial three (3) months probationary period was extended for a further three (3) months by consent of the parties due to the ill health of the Applicant during the initial period of probation. The 2^nd period of probation commenced on the 1^st February 2000 and had ended on the 30^th April, 2000.

In its reply to the particulars of claim and in particular to paragraphs 5 and 6 thereof, the Respondent had stated as follows:

4.

The contents of this paragraph are not denied and the Respondent states as follows:

The contents herein are not denied.

The Respondent by a notice dated the 22^nd January 2002 sought to amend the said response to paragraph 5 by the deletion of “not” and the sentence to read as follows:

The contents of this paragraph are denied and the Respondent states as follows:

This amendment was allowed by the court.

Further the Respondent sought to amend its response to paragraph 6 by the deletion of the entire paragraph 5 and the paragraph to read as follows:

“the contents herein are denied and the Respondent avers that the Applicant had not completed his probationary period. Therefore not an employee in terms of whom Section 35 of the employment Act applied.”

This amendment was refused by the court in terms of a written ruling dated 23^rd May 2002.

The effect of such intended amendment was to retract an admission that the Applicant had completed probation when it is not in dispute that he was dismissed on the 7^th May 2000.

This contradicted other admitted facts which clearly showed that as of the 7^th May 2000 when the Applicant was dismissed as a matter of fact he had completed the initial 3 months probation period and a further probationary period of three months which had ended on the 30^th April 2000.

The issues for determination by this court are as follows:

1.

whether from the pleadings and the facts before court, the Applicant was an employee to whom Section 35 of the Employment Act No. 5 of 1980 applied.
2. if the answer to the first question is in the affirmative, whether the Respondent has satisfied the requirements of Section 42 (2) (a) and (b) in dismissing the Applicant.

The Respondent’s case on the two issues as seen in its well formulated written submissions is as follows:

That clause 5.2 of the Applicant’s written Terms and Conditions of Service (exhibit R12) provided as follows:

“Any employee’s appointment shall be confirmed in writing upon having completed satisfactorily his probationary period.”

That the suitability for permanent employment was discussed between himself, his supervisor (not called as a witness), the Managing Director and Human Resource Manager after the supervisor had recommended that the Applicant be confirmed ‘with supervision’. It was stated by the two witnesses for the Respondent, the Managing Director and the Human Resources Manager that the proviso “recommended with supervision” meant that the probation was not completed satisfactorily and therefore the managing director was not obliged to confirm the Applicant into permanent employment. This being the case, the Applicant was not an employee to whom Section 35 (2) of the Employment Act applied since he had not completed his probation satisfactorily.

It was not necessary in the circumstances, the Respondent so argued, to provide a reason for the termination of the Applicant’s services in terms of Section 42 (2) (a) and (b) because, the Applicant had the onus to satisfy the requirements of Section 42 (1) i.e. proving on a balance of probabilities that he was an employee to whom Section 35 of the Act applied, which task, it was submitted for the Respondent, the Applicant had failed to discharge.

Section 35 is headed “Employee’s services not to be unfairly terminated” and the relevant subsection reads as follows:

“35 (1) This section shall not apply to-

(a)

an employee who has not completed the period of probationary employment provided for in Section 32;

Section 32 headed “Probationary Period” reads as follows:

“32 (1) during any period of probationary employment as stipulated either in the form to be given to an employee under Section 22 or in a collective agreement governing his terms and conditions of employment, either party may terminate the contract of employment between them without notice.

32 (2) no probationary period shall, except in the case of employees engaged on supervisory, technical or confidential work be extended beyond three months.

32 (3) In the case of employees engaged on supervisory or technical or confidential work, the probationary period shall be fixed in writing between the employer and employee at the time of engagement.”

It is common cause that the Applicant upon completion of the three (3) months fixed period of probation, he was placed on a further three (3) months probationary period in writing by consent of the parties.

The court will not debate whether or not the nature of his service was supervisory, technical or confidential.

Having accepted the fixed extension of the probationary period, the same came to an end on the 30^th April 2000.

The period of probation was neither extended again nor would it have been lawful to extend it.

It is an indisputable fact that by the 7^th day of May 2000 when the Applicant’s services were terminated, he was no longer on probation having completed the fixed term of his probation.

It is of utmost importance to note that the Employment Act was promulgated to “consolidate the law in relation to employment and to introduce new provisions designed to improve the status of employees in Swaziland (emphasis mine)”

Section 32 and 35 were some of the provisions introduced to improve the status of workers. If there is an ambiguity in the provisions, such should be interpreted in favour of the employee.

Sections 32 as read with Section 35 (1) (a) does not present any such ambiguity. A plain reading of Section 35 (1) (a) clearly shows that it does not cover an employee who has not completed the period of probationary employment. It follows an employee who has completed such probationary employment is covered by the section.

Such probationary period shall in case of every other employment be for a period of not more than three months and in the case of supervisory, technical or confidential employees, shall be for a period fixed in writing between the employee and the employer at the time of employment.

In the case at hand, such period was clearly fixed in writing and the same had expired.

The Act does not impose any other conditions to be satisfied by an employee or employer for Section 35 to be applicable to the particular employee.

The Applicant has clearly discharged the onus placed on him by Section 42 (1) as follows:

“in the presentation of any complaint under this part, the employee shall be required to prove that at the time his services were terminated that he was an employee to whom Section 35 applied.”

For completeness sake, I hasted to add that in terms of Section 31, Part V of the Employment Act “shall apply to every contract of employment made within Swaziland and to be performed wholly within Swaziland.”

Section 32 therefore applied fully to the Applicant’s contract of employment.

Any clause in that contract which purported to include a condition, more unfavourable to the employee to that provided for under Section 32 is null and void in terms of Section 27 of the Act which reads thus:

“No contract of employment shall provide for any employee, any less favourable condition than is required by any law. Any condition in a contract of employment which does not conform with this Act or any other law shall be null and void and the contract shall be interpreted as if for that condition there were substituted the appropriate condition required by law.”

An employee who is under probation may during that period be terminated without notice and for a reason not permitted by Section 36 of the Act. It was only open therefore for the Respondent to determine the services of the Applicant in the manner it did within the fixed period of probation. Any condition which purported to allow such dismissal outside the fixed period was in terms of Section 27 null and void.

Upon completion of the probationary period, the employee must be terminated for a reason permitted by Section 36 and in addition the employer must prove that it was fair and reasonable to terminate the employee’s services in the circumstances of the case.

In the present matter, the employer has failed to prove that the Applicant was dismissed for a reason permitted by Section 36 of the Act. The Respondent has further failed to prove that it was fair and reasonable to terminate his services in the circumstances of the case.

Though the Applicant had served the Respondent for a period slightly above six months, he had worked for the same factory under different ownership in the same capacity for a period of many years. When the Respondent took over the company he was retained to continue serving but was placed under probation as earlier said. He was not a new employee at all to the job but in the words of the Managing Director, privatization of the operation required more onerous targets and discipline than appertained when the same was a government parastatal.

Considering that the immediate supervisor of the Applicant had recommended his retention upon completion of the probation, it was most unreasonable to terminate his services. He was still unemployed at the time of the case. He suffered gross financial difficulties and was unable to support his dependants. Due to his advanced age, he was unable to acquire alternative job.

The records produced clearly showed that the applicant was an able sales person. The financial loss he suffered is immense and cannot be covered by any amount of compensation the court may award him.

Considering all the facts of the case, the court has ruled out reinstatement as an option but will award sixteen (16) months salary as compensation for unlawful dismissal of the Applicant in the sum of E81,000 (Eighty One Thousand Emalangeni).

In addition, a sum of E4,500 is awarded in lieu of one month’s notice.

Total award is E85,500 (Eighty Five Thousand Five Hundred Emalangeni).

The Members Agree.

No order as to costs.

Swaziland: Industrial Court

Abner V. Kunene v Parmalat Swaziland (Pty) Ltd. (139/2001) [2003] SZIC 1 (30 January 2003)