Author: Two
Company: Lawgistix

IN THE CONCILIATION, MEDIATION AND ARBITRATION COMMISSION (CMAC)

HELD AT SIMUNYE              REFNO: SIM 046/09

In the matter between:

JAMES  NDLOVU                  APPLICANT

AND

VUVULANE IRRIGATION
FARMERS ASSOCIATION           RESPONDENT

CORAM

ARBITRATOR:                    VELAPHI DLAMINI
FOR APPLICANT:                 IN PERSON
FOR RESPONDENT:               NO REPRESENTATION

EX PARTE ARBITRATION AWARD

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DATE OF HEARING           : 8TH MARCH 2010

VENUE                     : CMAC OFFICE, SIMUNYE

PLAZA

1. DETAILS OF HEARING AND REPRESENTATION

1.1  The case was held on the 8^th March 2010 at the Conciliation, Mediation and Arbitration Commission offices (CMAC or Commission) situated at Simunye Plaza, Simunye.

1.2  The Applicant is James Ndlovu, and adult Swazi male of P.O.BOX 176 Vuvulane. He represented himself.

1.3  The  Respondent  is  Vuvulane  Irrigation  Farmers Association  (VIFA),  a  voluntary  association  of P.O.Box 176 Vuvulane. There was no representation on behalf of the association.

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2  BACKGROUND FACTS

2.1  The Applicant reported a dispute for unfair dismissal at the Commission offices at Simunye Plaza on the 2^nd November 2009.

2.2  In his statement, the Applicant averred that he was employed by the Respondent on the 28^th April 2009 as an operator at a gross wage of E 1980.00 per month.

2.3  Ndlovu asserted that on the 14^th October 2009 his manager informed  him that he was told  by the Applicant's collegue Ndlovu stop work for 30 minutes between 4:00 am to 4:30 am that same day because he  was  imbibing   intoxicating   liqour.   Despite explaning to the manager that he did stop work in order to take a rest because he had worked without rest for 18 hours the previous day and denied that he was drunk, the manager went on to dismiss him.

2.4  The applicant stated that he solicited the assistance of one of the board members so that he could lodge an  appeal  against  his  dismissal,  however  these efforts yielded no fruitful results.

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2.5  Ndlovu alleged that no disciplinary inquiry was held prior to the termination of his services. He further maintained that he was not drunk, but was feeling sleepy and  fatigued  and  to  prevent an  industrial accident he had to rest for 30 minutes.

2.6  The  outcome  that  the  applicant  required  at conciliation was the following; notice pay-El 980.00, leave pay-E 396.00, overtime(May 2009)-E629.52, after work overtime (45 hours)-E494.55,off days-El 386.00,    rations-E750.00    and    12    months compensation for unfair dismissal-E23 760.00.

2.7  The dispute  was  conciliated  by the  Commission, however it remained unresolved and a Certificate of Unresolved Dispute no:757/09 was issued. On the 9^th  December  2009,  the  parties  requested  the dispute  to  be  decided  by  arbitration  under the auspices of the Commission. I was appointed on the 12^th January 2010 to determine the matter.

3. VIFA'S NON-REPRESENTATION

3.1  ON  THE  8^th  February  2010,  the  Commission issued out an invitation to the parties to attend

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arbitration at the CMAC offices at Simunye Plaza on the 8^th March 2010 at 10:00 am.

3.2  When the matter was called at 11:07 am there was   no   representation   on   behalf  of  the Respondent. The applicant appeared in person to prosecute his case. It was then incumbent upon the  arbitrator to  peruse  the  record  to  satisfy himself that proper notification of the arbitration was made to the other party.

3.3  According to "CMAC Form20", which is the prove of service- hand delivery, the invitation of the parties which is "CMAC Form9",  was personally served on Thamsanqa Masuku who is secretary to the board of the Respondent, on the 9^th February 2010.

3.4  I am satisfied that the service of the notification upon the Respondent was effected in terms of Rule8(l)(a)(iii) of the CMAC Rules, that is to say it was effected on a person who appeared to be above 16 years of age and apparently in charge of the party's business

See Legal Notice 22 of 2008

3.5  further, I am satisfied that sufficient notice was afforded to the Respondent because the invitation was served on the 9^th February 2010 for a matter

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that was to be heard on the 8^th of March 2010, some 18 CMAC days before the hearing. In terms of Rule 24 the Commission shall give parties at least 14 days notice in writing of an arbitration hearing, unless there is prior consent by the parties of a shorter period.

See Legal Notice 22 of 2008

3.6  Having considered the above factors regarding the notification, I was satisfied that the relevant CMAC Rules were substantially complied with and upon an application  by the applicant to  proceed ex parte, I granted same.

See Rule27(l)(b) of CMAC Rules; Wilton v Gatonby and Another 1994 (4)SA 160 (W).

3.7  Now default of representation by the other party does  not guarantee automatic success for the party in attendance.  I am still duty bound to evaluate  and  examine the  facts  and  evidence tendered  by  the  party  in  attendance,  before determining if a case has been made in support of his claims.

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See Ex Parte Bennett 1978(2)SA 380 (W); Herbstein and Von Wissen, The Civil Practice of the Supreme Court of South Africa (4^th Ed).

4. SUMMARY OF EVIDENCE

4.1  Under oath the Applicant testified and reiterated the statement he made in the report of dispute, which has been well documented above and does not require a repetition.
4.2  However; he elaborated about the circumstances that lead to him feeling fatigued. His evidence was that he was a loader operator, whose job was to load  sugar  cane  into  truck-trailers  or tractor-trailers.

4.3  On the 12^th October 2009 he was on duty and his shift had started at 12:00 noon and ended at 6:00 am the following day. He only rested for 12 hours and was called again to work at 6:00 pm on the same day and until he knocked off on the 14^th October 2009.

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4.4  It was the Applicant's evidence that, because of having worked for 18 hours and only rested for twelve hours and then went back to work for another 12 hours he felt exhausted at 4:00 am and informed the tractor drivers that he was going to take a nap for 30 minutes. At 4:30 am he was back on the job and worked until his shift ended at 6:00 am.

4.5  Whilst off duty and having a siesta, his manager came and woke him up at 10:00 am and ordered him to report at the office to answer an allegation that he was drunk on duty. When the Applicant arrived at the office, the manager notified him that he was dismissed for being found drunk and despite his denial of the accusation, the manager further advised him to wait for his final pay at the end of the month.

4.6  The Applicant stated that during his service the Respondent did not give him off days until they accumulated to 21 days, which he now claimed. Further the Applicant worked overtime which was never paid. Ndlovu is also claiming 6 leave days as well as E750.00 in respect of rations.

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4.7 It was the Applicant's contention that his dismissal without notice or a disciplinary hearing was unfair and as such he was praying for notice pay and 12 months compensation for unfair dismissal.

5. ANALYSIS OF EVIDENCE AND THE LAW

5.1  The Applicant had the onus to prove that he was an  employee  to  whom  Section  35  of  the Employment Act 1980, applied. He averred that he served  continuously  in  the  capacity  of  heavy mechanic operator for six months, from 28^th April 2009 to 31^st October 2009.

5.2  Ndlovu was not employed in a supervisory position and as such his probation could not extend beyond the 28^th July 2009.

See Section 32 (2) of the Employment Act 1980

5.3  Further his evidence was that  he  was earning wages per month and worked more than seventy-two hours per week.
5.4  It  is  my  finding  that  the  Applicant  was  an employee protected by Section 35 of the Act, in

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other words he was entitled to present a complaint for  unfair termination  of  his  services.  He  has discharged his onus. See Section 42 (1) of the Employment Act.

5.5  now an employer is required to prove that the reason for terminating the service of an employee is not permitted by Section 36 of the Employment Act; and that taking into all the circumstances of the  case  it  was  reasonable  to  dismiss  the employee.
See Section 42(2) of the Employment Act

5.6  The Applicant's uncontroverted version is that, he was dismissed for taking a nap for 30 minutes during  his  shift,  it  being  alleged  by  the Respondent that he was drunk on duty. Ndlovu's evidence was that no disciplinary inquiry followed this accusation.

5.7  As  a  result  of  the  Respondent's  default  of representation,   no   explanation   or   lawful justification  was  advanced  by  VIFA  for  the Applicant's dismissal.

5.8  According to the Regulation of Wages(Agricultural Industry)  Order  Notice  2007,  in  particular regulation 5, the normal hours of work for all employees,  except  for  watchman,  stockman,

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irrigators, plant and pump house attendants, shall be fifty-four(54) hours of work spread over a period not exceeding six days in a week.

5.9  The Applicant argued that, on this particular day he worked for 18 hours on his shift only to be given 12 hours break, then in the evening of that same day at 6:00 pm he cloaked in for another 12 hours shift.

5.10 Not only were the hours in excess of the hours of work prescribed by law, it was inconceivable that the Applicant had worked for 18 hours without a break.  The  law  provides that  he  should  have worked 9 hours on this shift.

5.11 It is my finding that the Applicant's dismissal was substantiveiy and procedurally unfair.

See Thulie Nkambule v New Midway Supermarket t/a Intertech (IC case no: 133/05); Themba Tsabedze v Tex-ray Swaziland (Pty) Ltd (IC case no;559/06; Christopher H. Dlamini v Inter Africa Suppliers (SWD) Ltd (IC case no:55/97 and Alpheus Thobela Dlamini v Dalcrue Agricultural Holdings (Pty) Ltd (IC case no:123/05

5.12 I also make a finding that, in the circumstances of the case it was not reasonable for the Respondent to terminate the Applicant's services:

5.12.1 The Applicant had not had enough time to rest  before  his  next  12  hour  shift.  The balance  of  convenience  dictated  that,  if Applicant was fatigued, he should have taken a nap rather than risk an accident that would most likely cause loss of life and damage to property.

5.12.2 The prejudice suffered by the Respondent for the  work  stoppage  of  30  minutes  is outweighed by the potential prejudice of loss of human life and property.

5.13 Further, it is my finding that the Applicant is owed six  leaves  days  for  having  worked  for  6  full months before he was dismissed.

5.14. The Applicant is also entitled to the overtime and off days claimed.

5.15 Regarding the claim for rations for the sum of E750.00, I do not think that a case was made out for such. The Applicant did not state in respect of what month or week this ration was owed. Further he did not state in respect of what food items the amount of E 750.00 was for.

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5.16 Now, the third schedule stipulate the minimum weekly ration scale for obvious reasons, the food item that are listed therein are not costed, only the weights are mentioned.

6. CONCLUSION

6.1  I have found that the Applicant's dismissal was not for a fair reason and that in the circumstances of  the  case,  it  is  not  reasonable  for  the Respondent to terminate his services.

6.2  I have also found that the Applicant qualifies to succeed on his claims for leave, overtime and off days. However; he ought to fail on his claim for the sum of E750.00 in lieu of rations.
6.3  Now, regarding the compensation to be awarded to the Applicant, the following factors have been considered;

(a)	The Applicant had only worked for six months before he was dismissed.
(b)	However the Respondent was insensitive to the Applicant's mental as well as physical wellbeing. On the 14^th October 2009, as the Applicant was taking a siesta the Manager

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ordered him out of bed and instructed him to go to the office.
(c)	The Respondent failed to hold a disciplinary inquiry before terminating his services.
(d)	The Applicant is married with nine children all attending school and has not been employed since his dismissal.
(e)	The Applicant had to spend his savings to ensure that his children continue attending school.

6.4  I  hold  that an  award  of 9  months  wages  as compensation  is  fair and  equitable  in  all  the circumstances of this case.

6.5  The following order is therefore made

7. AWARD

7.1  The Respondent is ordered to pay the Applicant the following:

(a)	Notice pay                 		= E 1 980.00
(b)	Leave (6days)             	 	= E 396.00
(c)	Overtime(May 09 +45hrs)     	= E 1 124.07
(d)	Off days                   		= El 386.00
(e)	9 months wages compensation 	= E 17 820.00

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TOTAL AWARD                =E 22 706-07

7.2  The Respondent is directed to pay the sum of E 22 706.07 at the Commission's offices at Simunye Plaza by the 30^th May, 2010.

7.3  There is no order for costs
DATED AT SIMUNYE ON THIS THE 4^th  DAY OF MAY 2010
VELAPHI DLAMINI

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