Times Of Swaziland: 188 LABOURERS LOSE E10.3M CLAIM AGAINST KING’S OFFICE

188 LABOURERS LOSE E10.3M CLAIM AGAINST KING’S OFFICE
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Andile Nsibandze on 05/06/2024 09:03:00


MBABANE – At least 188 labourers, who were engaged on fixed term contracts for
the construction of Mandvulo Grand Hall at Lozitha, have lost their claim of
unfair dismissal and underpayments against the King’s Office at the Industrial
Court.
The former employees had claimed over E10 million against the King’s Office,
for the alleged underpayment and unfair dismissal. The labourers were
represented by Manzini based Attorney S. B. Motsa, while the King’s Office was
represented by Derrick Jele of Robinson Bertram. The exact amount they were
claiming is E10 317 764. The Industrial Court has dismissed the labourers’
claim and held that they were not dismissed, but their term of engagement had
come to an end. The court also held that the labourers could not claim for
underpayments as they could equate themselves to permanent employees of the
King’s Office.
Aggrieved
The statement of claim as originally framed by the aggrieved labourers alleged
that their dismissal was both procedurally and substantively unfair. Regarding
the issue of substantive unfairness, the labourers averred that there was manual
and semi-skilled work that was still available at the construction site when
their services were terminated on September 30, 2011. The King’s Office in
defence, alleged that the only work that was available at the time was for
skilled personnel in roofing and the decoration of the grand hall, which was
performed by independent contractors, who came with their workers.
The former workers had sued the King’s Office around July 2012, but due to the
matter having been heard by Judge Mazibuko, who was elevated to the Industrial
Court of Appeal, had to start afresh before a new judge. At the time of the
judgment, already six of the former employees, who had initiated the legal
proceedings, had died. This was an unfortunate eventuality which was noted by
the presiding judge.
Throughout the proceedings, the King’s Office remained adamant that the
labourers were not dismissed, but their term of engagement had come to to end.
This has to be understood to be referring to the coming to fruition of the two
contingency conditions within their written contracts, which is the completion
of the project. The labourers were only awarded one-month notice each, which the
court felt was due to them as the King’s Office gave them the required notice.
The average agreed monthly salaries for the labourers at the time was around E1
500 for each labourer. The judgment that was issued by Judge Manene Thwala,
sitting with nominated members of the Industrial Court, somewhat constituted a
defeat for the former workers, who strongly believed they had to be compensated
more than that.
Contractor
The former workers mentioned that at the beginning of the project, they were
working under an independent contractor. However, they claimed that this was
modified around December 23, 2009 when the management of the contractor, Inotim
Construction, convened a meeting where they (labourers) were informed that they
were to be transferred to the King’s Office, insinuating that they were now to
be employed on a permanent basis by the entity. The King’s Office refuted that
the labourers were permanent employees. The Industrial Court on the evidence,
found that the labourers were not permanent employees.
So, this meant that their pay packages could not be the same as those workers
employed by the King’s Office on a permanent basis. However, trouble started
when the workers received payslips, whose contents did not reflect the
impression that had been planted in their minds. This caused the former workers
to believe that some of their monies were being wrongfully withheld by the
employer. This was deduced from the testimony of one of the witnesses, who was
referred to as AW1, who told the court that the issuance of different payslips
caused discomfort to the applicants, because it depicted them as belonging to
the permanent staff of the King’s Office.
The witness further told the court that the workers then resolved in a meeting
to form a structure whose first task was to approach the King’s Office
management in order to seek clarity about the pay disparity issue. It was the
witness’s testimony that during the cause of the negotiation process, they got
a surprise action from their employer, who served them with notices of
termination of their employment. He said this was despite that there was manual
work which was still pending at the construction site. The dispute was
apparently taken up with relevant structures recognised by the country’s
labour laws, where they sought to be awarded for underpayment, including 12
months’ compensation.
Given this background, it was the court’s finding that the relationship
between the former labourers and the King’s Office was only to the extent of
the completion of the conference hall. He said quite a considerable amount of
time was spent trying to get the witness to clarify the question of the
purported re-engagement of some of the former employees, whose services had been
terminated on September 30, 2011. “RW1’s answers to this were not
impressive,” noted the judge.
Ruling
Before issuing his ruling, the presiding judge noted that the claim of
procedural unfairness would have only succeeded if there still remained some
work, which had to be conducted by the workers at the time of the termination of
their contracts. In his ruling, the court presiding officer declared that the
King’s Office was not entitled to pay the labourers what they were demanding
as underpayment, because their claim was determined to be misplaced as the
applicants had used a pay scale of permanent employees of the King’s Office
when making their calculations. “This was misguided and nothing more need be
said about it,” the judge concluded. While noting this, the judge was of the
opinion though that the King’s Office was still liable to pay the labourers’
their 30 days statutory period notice when their fixed-term contracts were
terminated.