Nkambule v Swaziland National Housing Board (134 of 2001) [2006] SZICA 4 (9 March 2006)

[1] This is an application for the determination of an unresolved dispute brought by the Applicant against the Respondent in terms of the Industrial Relations Act of 2000.

[2] The application is thus accompanied by a Certificate of Unresolved Dispute and is marked annexure "C" thereof.

[3] The Applicant's claim is that he was constructively dismissed by the Respondent. He is therefore now claiming that the Respondent be ordered to pay him the following:

(a) One months notice - E4,150.00

(b) Additional notice - El,509.00
© Severance allowance - El,883.60
(d) 12 months maximum compensation - E49,800.00

TOTAL E57.342.69

[4] The Respondent denied that it constructively dismissed the Applicant.

[5] The Applicant in its particulars of claim stated in paragraph 9 as follows and I quote verbatim:

"Applicant submits that his dismissal was constructive and unfair, in that the Respondent allowed him to go on study leave, whilst behind his back, it proceeded to advertise his position, thus effectively dismissing him."

[6] In response the Respondents stated as follows in its Replies in paragraph 9 and I quote verbatim:-

"Contents hereof are denied and the applicant is put to strict proof thereof. In particular the Respondent denies that it dismissed the applicant. The applicant made a request for long terms paid study leave without securing the boards approval abandoned his employment."

[7] In his evidence before the court the Applicant stated that he was employed by the Respondent in 1992 as an Accountant. He said he earned a gross salary of E4,150.00 per month. He said he was in continuous employment until the 27^th March 1995.

[8] The Applicant's evidence further revealed that on the 19^th January 1995 he learnt that Government had granted him scholarship to pursue a Chartered Secretaries and Administrators course at Technikon Natal in Durban starting on the 30^th January 1995. It was a full time study course running for three years. On the following day the 20^th January 1995, the Applicant approached the Head of Human Resources Department for a paid study leave. The Head of Department advised the Applicant to approach the Managing Director as there was no policy in the company regulating applications for long term paid study leave.

[9] The Applicant wrote a memorandum to the Managing Director via the Chief Accountant's office. The memorandum is annexure "D" of the Applicant's application. The Managing Director was on leave at that time. The Applicant said he was advised by the Chief Accountant to approach the Managing Director at his residence. The Applicant did so. The Applicant said he showed the Managing Director the memorandum and they discussed the issue of the study leave. The Applicant said the Managing Director verbally approved his application.

[10] The Managing Director testified before the court on behalf of the Respondent. He denied that he approved the application for the study leave. He said he did not, and could not have done that as he was on leave and also because there was no policy in place for long term study leave at the Respondent's undertaking.

[11] The Managing Director ( RW1) told the court that he tried to reason with the Applicant that his request could not be entertained as there was no policy at the workplace to back it. RW1 said he made it clear to the Applicant that he understood the position that he found himself in and that if he left, he would be taken to have abandoned his employment.

[12]The evidence revealed that the Applicant's position was advertised in the Times of Swaziland on Friday 27^th January 1995. In his evidence in chief the Applicant said he stopped working on that same date, the 27^th January 1995. The post was therefore advertised when he was still around. If therefore he had got a verbal approval from RW1 to proceed on study leave, it is not clear why he did not immediately take up the issue and find out why his post was being advertised if he still regarded himself, as an employee of the Respondent.

[13] The Applicant said he did not immediately address the issue of his post being advertised because he was busy at school. During cross examination, he did not want to commit himself as to the exact date that he left the country. He only said he left towards the end of January 1995. It was clear to the court that the Applicant did not want to commit himself as to the exact date of his departure because he did not want it to appear that he was still in the country when his post was advertised and did not challenge the Respondent's action.

[14] The Applicant's conduct of not challenging the Respondent's action immediately points at one direction, and one direction only, namely that he knew that the Respondent's Management or Board had not approved his departure.

[15] From the evidence presented before the court it was clear to the court that the Applicant had made up his mind that he was leaving to pursue his studies. In his memorandum he stated that it was his long standing desire to further his studies, he said that that was hindered by Government's negative approach in sponsoring courses offered outside
the country. The Government having granted him the scholarship to study outside the country, the Applicant clearly did not want to miss that opportunity,

[16] The court will therefore reject the Applicant's evidence that he got a verbal approval from RW1 to proceed on long term study leave. The court accepts RWl's evidence that he did not give any verbal approval to the Applicant's application for full time study leave. The court finds that it was highly unlikely that RW1 could have done that as it was a known fact at the Respondent's undertaking that there was no policy providing for that kind of leave. It is not clear therefore why RW1 could put his job on the line by doing something that was outside the company policies.