Times Of Swaziland: MBONGWA WINS SALARY CASE, GOVT MUST PAY ABOUT E154 000

MBONGWA WINS SALARY CASE, GOVT MUST PAY ABOUT E154 000
================================================================================
Kwanele Dlamini on 09/05/2023 08:59:00


MBABANE – Government is expected to pay SNAT President Mbongwa Dlamini about
E154 000 after his salary was withheld in October 2022.
The Moyeni High School Mathamatics and Science teacher, who earns about E22 000
per month, last received his salary in September 2022. The amount of E154 000
was arrived at based on calculations made by this publication after the
Industrial Court set aside government’s decision to withhold Mbongwa’s
salary from October 2022 and other subsequent months.
The court issued no order as to costs. The order was issued by Judge Lungile
Msimango yesterday. The judge said Mbongwa was not given an opportunity to be
heard before the decision to withhold his salary was taken. It has been seven
months since he last received his salary. Government accused Mbongwa of
absenting himself from work for 109 days without permission from his immediate
supervisor. The Swaziland National Union of Teachers (SNAT) president said he
was expected to attend activities on behalf of the association and other
activities of the general membership, which included attending federation
meetings, among others.
Salary
After his salary was withheld, Mbongwa took the matter to the Industrial Court.
He wanted government to pay him for the months of October and November 2022, and
any further months for which he had not been paid. He also sought an order
declaring that the Ministry of Education and Training, accountant general,
Teaching Service Commission’s (TSC) conduct of withholding and not paying his
salary was illegal and violated the employment contract between the parties.
Mbongwa further prayed that his intended disciplinary process be interdicted and
stayed pending the outcome of these proceedings before court. During the hearing
of the matter, Mbongwa argued that he always received his monthly salary through
First National Bank (FNB) on the 21st of every month. However, he said on
October 21, 2022, without lawful justification or reason, government, who had
paid the salary as expected, reversed the payment.
He submitted that subsequent to the reversal of the salary, he went to the bank
to make enquiries and he was informed that it had been paid, but was thereafter
reversed by the Ministry of Education and Training. Mbongwa told the court that
he then visited the Ministry of Education and Training, where he was referred to
his immediate supervisor, the Head teacher of Moyeni Secondary School, who in
turn, referred him back to the offices of the Manzini regional education officer
(REO). The SNAT president contended that he was made to run from pillar to post
and he resorted to engaging his attorneys, who addressed a letter dated October
27, 2022, to the ministry. He was enquiring about the reason for his salary not
being paid and demanded that it be restored immediately.
According to Mbongwa, on November 2, 2022, he eventually received a written
response from the ministry dated October 31, 2022, explaining why his salary had
been frozen and/or reversed. In the letter, the ministry stated that his salary
was stopped in accordance with Regulation 14 (1) of the Teaching Service
Regulations 1983, following his prolonged absence from work by a total number of
109 days, without his immediate supervisor’s permission nor a certificate
signed by a medical practitioner certifying that he was unfit for work on those
occasions.
Activities
Mbongwa argued that as a member of the executive of SNAT, he was expected to
attend to activities on behalf of the union and others. He said on all such
occasions, he reported to his workstation, attended his work and where he had to
be released for the day, he was released by the head teacher after reporting to
the head of department, who was satisfied that the appropriate arrangements had
been made for lessons on the said dates. He told the court that the invoking of
Regulation 14 was not automatic to such an extent that government could apply it
unilaterally. He argued further that due process had to be carried out for same
to be applicable, as provided for in terms of the rules of natural justice and
the Constitution, which was the right to a fair hearing. Mbongwa was represented
by Lucky Howe of Howe and Masuku Attorneys.
Government argued to the contrary that the head teacher of Moyeni High School,
as Mbongwa’s immediate supervisor, did not release him for trade union
business. Principal Crown Counsel Ndabenhle Dlamini said both the head teacher
and head of department denied the alleged working arrangements. “Furthermore,
even if the applicant (Mbongwa) attended trade union business, such attendance
still required permission in terms of the recognition agreement between the
Government of Swaziland (Eswatini) and the Swaziland National Association of
Teachers, which was entered into by the parties in March 1992,” said
Ndabenhle. He told the court that TSC Regulation 14 expressly provided for
forfeiture of any wages paid for a period of absence spanning 48 hours. “Such
forfeiture being automatic, the applicant can only have the salary restored upon
proof of the head teacher’s permission or submission of a medical certificate
of ill-health, of which applicant has furnished neither.
“The alleged violation of applicant’s right to a fair hearing is frivolous
and vexatious, as the fact in issue in this matter is the applicant’s absence
from duty without leave, and he does not deny the absence, thus TSC Regulation14
automatically kicks in. Furthermore, the withholding of applicant’s salary is
not actuated by malice but is a natural consequence of applicant’s refusal to
render services to his employer in terms of his employment contract. The
decision not to pay the salary for no work done is lawful,” Ndlabenhle argued.
Judge Msimango said the essence of Mbongwa’s bone of contention was that he
had been denied his procedural right by not being given an opportunity to make
representations prior to the withholding of his salary. “As a consequence, the
principle of audi alteram partem (right to be heard) comes into play. This
principle is grounded on the notion of natural justice or procedural fairness,
namely, that a person may not be condemned before he/she is given the
opportunity to be heard on the issue under consideration,” said Judge
Msimango. The judge said, from the proceedings before court, it was clear that
Mbongwa was not invited to make representations before his salary was withheld
at the instance of the Ministry of Education and Training.
Exclusion
“The respondents (government) unilaterally invoked Regulation 14 of the TSC
Regulations at the exclusion of the applicant’s side of the story. The
cardinal rule is that a decision must be informed by all the parties who shall
be directly and substantially affected by it. “So paramount is the audi
alteram partem as a principle of natural justice that a litigant, who, with good
course shown lament such right must be given redress in a court of law,
therefore, adherence to the principle is vital,” said the judge. Judge
Msimango stated in the judgment that, following that Mbongwa was not invited to
a hearing in so far as the stoppage of his salary was concerned, the court was
of the view that he was denied his right to be heard.