Tambankulu: The Industrial Court of Eswatini, with effect from 10 September 2020 ordered the return to employment of about 10 unlawfully retrenched employees of Tambankulu Estates/Tongaat Hullet.
The retrenchment of the employees, it was claimed was as a result of the effects of crises emanating from the outbreak of the Coronavirus pandemic.
The employees employed under Tambankulu Country Club, had their retrenchment reversed by the court after it transpired that their employer failed to apply fair procedural practices in line with Section 40 of the Industrial Act of 2000 (as amended)
The dispute which at the end led to the reinstatement of the already sent home employees emanated from a letter that the company issued on June 2, 2020 to Swaziland Agricultural and Plantations Workers Union (SAPWU) which is the recognised bargaining institution on behalf of workers within the company, reflecting cost cutting initiatives the company had embarked on. The company identified the club as one of its units alleged to be not profitable and needed to close due to Covid-19 outbreak, a catastrophe which has affected the whole world. Indeed the company closed the club, amid on temporary basis. However, worth noting, this time the closure was different because it was due to regulations enacted under the Disaster Management Act by Eswatini Government as a response to the pandemic.
In the very same letter, the company added that it would no longer afford to defer the permanent closure of the club anymore, hence the union was alerted that the club would permanently be closed. It further highlighted that, consultations between the company and representatives of the employees should run from 15-19 June 2020, which, however, didn’t happen.
According to the union, it had expected that a period of notice as prescribed by Section 40 of the IR Act of 1980 would from 1-30 July 2020. Having stated that, the first and only meeting took place on June 29, 2020.
Retrenchment letters were issued during the very same day even before the meeting was convened. SAPWU complained about the fact that the company simultaneously notified them together with the Commissioner of Labour on July 14, 2020 about the already retrenched employees.
It was then that the union decided to seek redress on the matter from the courts, and their prayers were that the court: declare the conduct of the company to consult and/or deal directly with the union members prior to engaging the union unfair and unlawful and undermines the union’s right.
It further prayed that; the notices of redundancies issued by the company dated 2, 29 June and 14 July 2020, invalid and unlawful for contravening Section 40 of the Employment Act 1980 (as amended), amongst other prayers.
The court advised that every employer faced with a necessity to retrench, must consult the employee concerned or the employee representative, further quoting Mazibuko J in paragraph 116 of the Mecco Maseko VS Inyatsi Superfos judgement stated with regard to the importance of consultations prior to retrenchments; “consultation gives the employer an opportunity to explain the reason for the proposed retrenchment. This is the point where the employer will demonstrate with supporting evidence that the suggested retrenchments is bona fide and necessary for the survival of the undertaking.” It was further found that Section 40 (2) makes it mandatory that the latest financial statements and audited accounts of the undertaking must be included in the information to be furnished to the labour commissioner and to the union pertaining to the undertaking that is retrenching the employees.
Industrial court also noted that the Respondent/company in its own letterhead, it is registered as a corporate entity, which is Swaziland Ranches Limited. At the bottom of its letterhead it stated that it trades as Tambankulu estates Limited, to which it has not pleaded that the recreational/country club enjoys a separate corporate personality. It was on that basis that the court deduce that the latest financial statements and audited accounts that the company was supposed to furnish to the union and the Commissioner of labour are the those of Swaziland Ranches Limited not Tambankulu Country Club.