IN THE INDUSTRIAL COURT OF ESWATINI
HELD AT MBABANE Case No. 186/2017 (B)
In the matter between:
SANDISE HLOPHE Applicant
and
SHISELWENI INTERSTATE KOMBI Respondent
ASSOCIATION
Neutral citation: Sandise Hlophe vs Shiselweni Interstate Kombi
Association [186/2017] [2018] SZIC 73 (13 July 2018)
Coram: Nsibande JP,
(Sitting with N.R. Manana and M.P. Dlamini
Nominated Members of the Court)
Date Heard: 28 June 2018
Date Delivered: 13 July 2018
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RULING
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[1] The Applicant seeks an order directing that the matter be referred to arbitration under the auspices of CMAC as provided for by Section 8 (3) and Section 85 (2) of the Industrial Relations Act of 2000 (as amended).
[2] The support of his application for referral, the Applicant argued that:
2.1 The issues for determination are not complex.
2.2 The amount sought is not substantial being a sum of
E41 992.16
2.3 The Respondent will not suffer any prejudice if the dispute is referred to arbitration.
[3] The Respondent argues that:
3.1 The issues involved were complex in that by its very nature the determination of unfair dismissal disputes is complex.
3.2 The Applicant has raised the issue of substantive and procedural unfairness thus the matter requires legal analysis.
3.3 There are numerous disputes of facts such as whether the Applicant was retrenched or unfairly dismissed.
[4] Taking into account the fact that CMAC arbitrators are now all experienced legal practitioners and holders of the LLB degree (see The attitude of the Industrial Court to Labour Arbitration Referrals – Nathi Gumede) and looking at the issues involved in this dispute (whether the purported retrenchment was procedural and whether Applicant was entitled to any payment on retrenchment) I have no doubt that the Respondent will suffer no prejudice if this matter is referred to arbitration.
[5] Further I notice that the claim is inflated by a claim for underpayments. A claim for underpayments is not complicated in my view. In any event the amount of E41 992.16 is not in my view substantial even for the Respondent.
[6] I therefore order that;
The dispute is referred to arbitration under the auspices of CMAC.
2. There is no order as to costs.
For Applicant: Mr B. Dlamini
(Fakudze Attorneys)
For Respondent: Ms. T. Dlamini
(Dunseith Attorneys)
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