INDUSTRIAL COURT OF APPEAL OF SWAZILAND

JUDGMENT

HELD AT MBABANE CASE NO. 17/2017

In the matter between:

NEDBANK SWAZILAND LTD APPELLANT

And

SYLVIA WILLIAMSON 1st RESPONDENT

SUFIAW 2nd RESPONDENT

Neutral Citation: Nedbank Swaziland Ltd v Sylvia Williamson and SUFIAW

(17/2017 [2018] SZHC 02 (03/2018)
Coram: J. Maphanga AJA, J. Magagula AJA, J. Tshabalala AJA
Date Heard: 09/04/2018

Date Delivered: 03/05/2018

Summary Labour Law; Labour law- employee charged with gross

negligence- internal disciplinary proceedings
conducted resulting in a finding of guilt and
recommendation of dismissal; tribunal’s decision
subsequently overturned by Chairman of a
disciplinary appeal on the sanction; appeal
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 tribunal determining final written warning
appropriate sanction; employer disregarding
Appeal determination and dismissing employee;
dismissal challenged on the basis that it constitutes
a contractual breach in terms of a provision of a
code of conduct incorporated in a collective
agreement; whether such constituting a justiciable
remedy outside the determination of disputes in
terms of Part VIII of the Industrial Relations Act;
Application for an interdict and setting aside of
letter dismissal constituting an impermissible
review application; Industrial Court lacking
jurisdiction to entertain review of dismissal
decision by employer.

JUDGMENTS

[1] This is an appeal which the Appellant (the bank) has brought against a
ruling of the Industrial Court of the 5 th October 2017 in terms of which the
court a quo dismissed a point in limine taken by the Appellant in an
application brought by the 1st Respondent for the setting aside of a letter of
dismissal issued by the Appellant directed at her. To place the matter in a
factual context a sketch of the background is called for herein.

[2] At all material time leading to the 1st Respondent’s dismissal, the Appellant
had been her employer. On the 4th April 2017 the bank constituted a
disciplinary tribunal to hear and determine a charge of gross negligence
preferred against the 1st Respondent. The tribunal was headed and by an
independent (external) chairperson. In the outcome the tribunal made an

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 adverse finding against the 1st Respondent in terms of which it found her
guilty of the alleged misconduct and recommended her dismissal to her
employer.

[3] Aggrieved by the finding and the sanction the 1 st Respondent exercised her
options in terms of the prevalent disciplinary code regulating conduct of
disciplinary proceedings of staff at the institution. For purposes of
determining the Appeal the bank again appointed an external chairperson to
conduct the hearing of the appeal and render his determination. In its
conclusion the appeals tribunal confirmed the findings of the disciplinary
tribunal on the merits but varied the recommended sanction by substituting it
with what it considered an appropriate one in its view. In the event it is
common cause that it determined and issued the sanction to be a final
written warning.

[4] It is again common cause that the bank upon receiving the findings of the
Appeals tribunal was dissatisfied with the outcome. The bank shortly
addressed a letter to the 1st Respondent in which, citing several reasons, it
disclosed that had rejected the Appeal tribunal sanction. In that letter the
bank notified the 1st Respondent that it was imposing its own sanction; the
effect of which it was to dismiss her; thus terminating her services. That
letter was issued on the 11th September 2017.

[5] This was a momentous point from which the proceedings before the court a
quo and the events around which the issues in this appeal revolve. I shall
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 revert to these issues further in this judgment. They primarily turn on the
construction of certain provisions of the disciplinary code applied in the
misconduct proceedings the bank prosecuted against the 1st Respondent.

[6] A word about the Disciplinary Code; the pertinent Disciplinary Code and
Procedure is document negotiated and agreed between the bank and the 2 nd
Respondent as a representative industry union in which the 1 st Respondent
was a member. It is common cause that the said Disciplinary Code had been
incorporated into the recognition and collective agreement between the
union and the bank and thus formed a part and parcel of the individual
contractual terms and conditions of the 1 st Respondent as an employee of the
bank.

[7] The relevant and material aspects of the code that go into the subject matter
and merits of this appeal relating to the status and effect of the rules
governing of conduct of appeals from disciplinary proceedings. The key
terms appear in clause 2.4.5.1. of the code whose full text of forms part of
the record of the proceedings before the court a quo, that clause provides as
follows:

“If a decision is reached that the employee has been unfairly

dismissed and the employee will be terminated or compensated as
mutually agreed upon by the parties”.

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APPLICATION

[8] On the 20th September 2017 the 1st Respondent launched an urgent
application before the court a quo challenging the bank’s letter of dismissal.
I use the words ‘challenge the banks letter of dismissal’ reservedly in
because it is would be more accurate to say technically she attacked the
bank’s act of issuing the letter of dismissal as opposed to the content or
effect thereof and approached the court for specific relief.

[9] The substantive objective of that relief was in part a declaratory order that
the letter of dismissal be declared unlawful void and invalid. By that token
the 1st Respondent second of the relief was the setting aside of that dismissal
letter.

[10] I come upon an aspect that in my view called for closer examination in the
proceedings before the court a quo as indeed it does presently. It concerns
the construction or interpretation to be given to the allegedly pertinent
provisions of the disciplinary code on which the 1 st Respondents case before
the Industrial Court was founded. This is so because the primary premis of
the 1st Respondents case a quo was that the Appellant had breached a term of
the Disciplinary Code (ergo a material term) - namely the said clause
2.5.4.1.5 that I have referred to above.

[11] Thus in my view it became imperative and indispensable in the

circumstances to consider and examine the wording of the clause – an

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 exercise in interpretation of a contractual clause. The court appears to have
accepted without question that the clause relied on in the code was indeed
applicable supportive and pertinent to the 1st Respondents cause as set out in
her papers without first having examined its content to ascertain if indeed it
bears out the construction relied on by the 1st Respondent.

[12] This is evident from a reading of the remarks of the learned Judge in this
regard. I consider it appropriate to the critical conclusions made by the court
in to the code. Those appear from paragraph 19 of the judgment as follows:

“19.0 In his answer as regards the question of jurisdiction,

Mr Simelane, who appeared on behalf of the Applicant,
argued, per contra, that his client was entitled to the
relief sought because Applicant had approached Court
in order to interdict Respondent from reneging from the
terms of the Parties’ Recognition Agreement.

20.0 For authorities in this regard Counsel for the Applicant

referred the Court to the Lynette Groening v Standard
Bank & Another ICA Case No. 2/2011.

21.0 And following the Lynette Groening case, this court is

satisfied that the Parties, through their Recognition
Agreement did intentionally exclude the power of the
Respondent, qua employer, to interfere with the
decision of a chairperson, See Clause 2.5.4.1.5 of the
Recognition Agreement.

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 22.0 We are of the opinion, further that the Agreement is
binding upon the parties to the extent that none of them
should be allowed to do as they wish whilst they remain
in it. Put differently, we are of the opinion that the
doors of this court must not be closed to one of the two
who finds himself at the mercy of the other.

See: Mbongiseni Dlamini And 4 others V The

Swaziland Electricity Company IC CASE No. 138/2017

Also: Swazi Poultry Processors V Swaziland

Manufacturing & Allied Workers Union & Another. IC
No.454/2013

23.0 And it would appear to the court that in holding

Respondent to the strict terms of their contract,
Applicant has approached this court not by way of view
but in terms of Rule 14 of the rules of this court. That,
in mind of the Court cannot be said to be a matter
beyond the scope of the industrial court.”

[13] The court invoking rule 14 (6) (b) the court found that the application before
it brought by the 1st Respondent was not before the Court for review. It is
clear that the Court regarded the formulation of prayers in the form of
prayers for declaratory orders and for the setting aside of the Appellants
actions, a mere matter of style/form than that of substance.

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[14] It is necessary to set out the applicable principles of interpretation of
contracts here, if to remind ourselves of the relevant aspects herein.

Interpretation of Contracts

[15] The law as to the correct approach to be followed by the courts is fairly
settled. It has recently been revisited by the Supreme Court in the case of
Swazi MTN Limited and Others v Swaziland Posts and
Telecommunications Corporation and Another (58/2013) [2013] SZSC 46
(29 November 2013) where the court, following the principles in the leading
case of Firestone South Africa (Pty) Ltd v Genticuro A.G 1977 (4) SA 298
(A) at 304 adapted these principle to the specific setting of interpreting court
orders.

[16] These principles on the interpretation of contracts are most apposite and
applicable here. I am inclined towards the somewhat terse statement thereof
by Theron JA in a judgment from the South African case of Air Traffic and
Navigation Services v Esterhuizen (668/2013) 138 at paragraph 9 as follows:

“The intention of the parties, as it emerges from the language used, is the
determining factor in problems of contractual interpretation. In North
East Finance (Pty) Ltd v standard Bank of South Africa Ltd, Lewis JA
stated that a court must examine what the parties intended by having
regard to the purpose of their contract. To determine the intention of the
parties, the nature, character and purpose of the contract must be
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 established. This is ascertained from the language used, read in its
contextual setting and in the light of any admissible evidence”

[17] That elementary process would seem to have been over looked in the court a
quo in the determination of the applicability of the clause cited and applied
in the matter.

[18] Applying the above principles it is my respectful view that the above is the
correct approach that the court a quo should have adopted in dealing
considering the matter before it in relation to the clause relied on in the code.

[19] I propose to consider the contents of the clause in the code hereunder.

RELEVANCE OF THE PROVISION OF THE DISCIPLINARY CODE

[20] In adapting and applying the interpretation rule in the quoted core terms the
court would in examining the wording of the provision of the clause been
able to determine its true intent purport and effect as well as its relevance to
the issues before it.

[21] Clause 2 of the code sets out the framework or the general conduct of
disciplinary the proceedings. It is divided into sub clauses dealing with a
range of procedural matters including hearings and appeals. Clause 2.5 is
dedicated to appeal hearings. Of particular relevance herein is clause 2.5.4
under which the cited clause 2.5.4.1.3 falls as regards scope of application.

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[22] That clause It reads as follows (here I reproduce the entire rule – clause in
fullness:

“2.5.4 Should all employee fail to at appeal hearing/enquiry after

been given timeous notice, the following action will be
taken:

2.5.4.1.1 A new appeal hearing/enquiry will be set and the

employee accordingly by letter. The letter will state that
if the fails to respond or attend, the appeal
hearing/enquiry will be held in absentia.

2.5.4.1.2 If the employee fails to attend the appeal hearing

should proceed without him;

2.5.4.1.3 Any decision, which will be taken will be advised to the

employee in writing;

2.5.4.1.4 The appeal hearing/enquiry will not just review a

decision, it will however, re – examine the whole hand
from both a substantative and procedural point view;

2.5.4.1.5 If a decision is reached that the employee has been

fairly dismissed, that employee will be reinstated or
compensated as agreed upon parties.”

(Emphasis in underscore mine)

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[23 It is clear from the wording of sub – clause 2.5.4.1.5 as read together with
the rest of the entire clause 2.5.4 that the sub – clause is directed at
prescribing an appropriate outcome upon a finding of unfair dismissal where
the employee ‘has failed to appear before the enquiry’. That is clear from the
clause and the associated surrounding provisions.

[24] The sub – clause is also clear unequivocal as to the outcome options an
appeal shall apply in the event it determines the employee has been unfairly
dismissed. It envisages reinstatement as but one of two options which
includes compensation “as mutually agreed upon by the parties.”

[25] The qualifying provisions as to the circumstances where clause 2.5.4.1.5 is

one of the actions referred to in the preceding provision of 2.5.4 are the
words “the following action will be taken. This one gets from an ordinary
reading of the clause in the context of the entire code and the purpose
thereof.

[26] It was contended by Mr. Simelane who appeared for the Respondents in his
written submissions placed before this court that the outcome of the appeal
was that, apart from reversal of an recommended sanction of dismissal by
the disciplinary tribunal the Chairman determined that the 1 st Respondent be
handed a final written warning.

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[27] It was contended by Mr. Simelane in his written submissions on behalf of
the Respondent before this Court that the outcome of the appeal was that,
apart from the dismissal outcome being overturned the determination of the
appeal was that the 1st Respondent be handed a final written warning. I have
not seen any reference to that recommended sanction despite close scrutiny
of the text of the decision of the appeal tribunal. That is probably because
the text of that decision appears incomplete.

[28] Assuming however that it was indeed issued, it is unclear to me how that can
be equated to the prescribed outcome in the code for either ‘reinstatement or
compensation as mutually agreed upon by the parties’. Certainly this is not
what the appeal tribunal in this instance has recommended in the alleged
difference to clause 2.5.4.1.5. It escapes me how it can be argued that the
Appellant has breached the code by not abiding the appeal decision when
that decision itself has not conformed or meted out the stipulated sanction in
the form or manner prescribed.

[29] I have not seen any reference in the appeal finding to the effect that the 1 st
Respondent had been unfairly dismissed. I must say this makes the remarks
of the court a quo in this regard somewhat curious if not remarkable. This is
what the Court says at paragraph 6 page 4 of its ruling:

“6.0 One other sub-clause which brings an interesting dimension

to the matter before us is clause 2.4.5.1.5 which states:

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 ‘2.4.5.1.5 If a decision is reached that the employee
has been unfairly dismissed, that employee
will be reinstated or compensated as
mutually agreed upon the parties”

7.0. From First Applicant’s (1st Respondent’s) founding affidavit it

can be taken for granted, firstly, that the ‘higher authority’ was
constituted by the Respondent in order to sit and dispose of her
appeal. Secondly, that the said structure reached a decision that
First Applicant was unfairly dismissed”

[30] As indicated I have not seen the expression of a finding of unfair dismissal
in the copied excerpt of the appeal decision in the record. However even if
that were that case and we can for purposes hereof assume this to be the
case, that finding would not be consistent or compatible with either the
recommendation of a final written warning. The provision that is oft-cited by
the respondent in the code is clearly predicated on a dismissal hence the
notion of reinstatement or alternatively compensation ‘as mutually agreed’.
It certainly would not be in alignment with the wording of the sub-clause
2.4.5.1.5 in the code.

[31] In sum the facts and circumstances of the matter do not bear out the
construed effect of the code nor do they support the contentions advanced by
the respondents. It is for that reason that I find the assumption by the Court a
quo that the Appellant acted in breach of the provisions of clause 2.4.5.1.5 of
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 the code are insupportable. Consequently I am not satisfied that the
Appellant’s conduct in rejecting the Appeal tribunal findings and verdict
constituted a breach of contractual obligations or a decision to disregard or
contravene the clause. I have already said that I am not satisfied in any case
as to the applicability of the clause to the facts in the first place. In any event
the clause does not state that the Appellant is enjoined to implement
whatever decision of the Appeals process made.

[32] It may well be that the Appellant did not follow the letter of the sub-clause
but that is a matter a tad removed and distinct from the assertion that the
Appeals decision either recommended the action set out in the sub-clause
which as demonstrated herein it did not, or that the bank was contractually
obliged to follow the Appeal tribunal’s recommended action in its exact
form.

THIS APPEAL

[33] I now turn to the specific issues raised in this appeal.

[34] The first issue in this appeal turns on whether the Court a quo was correct in
its finding that the respondent’s application was not a review application and
in dismissing the Appellant’s point in limine that the Industrial Court lacked
the requisite jurisdiction to entertain the application.

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[35] Thus there are two interconnected issues or tracks emerging from the first
ground:

1. Whether the nature of the 1st respondent’s application was

essentially one of review; and

2. Whether the relief sought by the Applicant was competent one or

one justiciable within the ambit of the court jurisdiction in the form
of remedy sought by the respondents a quo.

[36] In context it may be observed here that the essence of the second ground of
appeal can best be crystalised as follows: that the court erred, having
erroneously determined that he court had the requisite jurisdiction, in finding
that the application was not one predicated on unfair dismissal as would
engender compliance with Part VIII of the Industrial Relations Act
pertaining to the reporting of disputes for such causes.

[37] As a corollary it is inferable from the Appellant’s second ground that it seeks
to impugn the ruling of the Court a quo on the premise that it erred in
finding that the respondents’ relief was purely one of enforcement of a
contractual provision or obligation and therefore within the purview of the
courts power to grant relief in terms of Rule 14 proceedings under the
Industrial Court Rules. In this regard the appellation ‘specific performance’
has been used by the Appellant even though the Court a quo itself did not

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 use the term. I am prepared to assume for purposes of this appeal that indeed
that is what the Court meant.

[38] It becomes evident upon close consideration of the two grounds of appeal
that the issues I have articulated and subsumed under the first ground are
interlinked with the second ground as well. That is the structure and analysis
that I propose to follow henceforth in this judgment.

Whether Application was a Review

[39] The thrust of the Appellant’s case originating from the point in limine
dismissed by the Court a quo on jurisdiction amounts to this: that regard
being had to the form, structure and content of the prayers for relief as set
out in the 1st Respondent’s Notice of Motion, the 1 st Respondent’s bore the
hallmarks of a review application and therefore leads to the conclusion that
the relief sought constitutes the remedy of review. It is premised on certain
perceived procedural irregularities and the notion of ‘legality’.

[40] To illustrate the point reference is had to the 1 st Respondent’s prayer in her
Notice of Motion a quo in terms of which she sought ‘the setting aside of the
appellant’s letter dismissing her as per Prayer 3 of the Notice. Admittedly
that prayer is not prefaced with the conventional phrase ‘review” but it
contains an exhortation for the Court to ‘declare’ that letter unlawful
irregular null and void and thus of no force and effect. The application seeks
to have the letter also set aside on that basis.

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[41] In light of the above is seems to me the approach taken by the Court a quo in
disregarding the true nature and obvious effect of the application, by
charactering the problem as a breach of contract remediable by specific
performance or enforcement of a terms of contract is with respect, artificial.
For the reasons alluded to and demonstrated earlier upon an analysis of the
cited provisions of the disciplinary code this is an untenable position.
Clearly the provisions relied on have no bearing on the matter.

[42] There is a second and rather fundamental flaw to the approach adopted by
the Court a quo on the jurisdictional issue. It arises from the manner in
which the Court avoided the effect of the doctrine in the case of Alfred Maia
v The Chairman of the Civil Service Commission and 2 Others SZHC
Case No. 1070/ 2015 by seeking to distinguish the circumstances of this
case from the import and principle laid down in that case to the effect that
the Industrial Court lacks jurisdiction to determine unlawful and unfair
dismissal by way of review.

[43] It was Mr. Sibandze’s submission that the Court a quo whilst ostensibly
acknowledging the authority of the Maia judgment on the jurisdiction
question, it ignores and seeks to obviate another critical dimension of that
judgment. This aspect may be tersely summarised in the principle as
articulated in that case that the dismissal of an employee constitutes a
‘dispute’ in terms of the interpretation section of the Industrial Relations Act

17
 of 2000, which is only justiciable, like all disputes, by following Part VIII of
the Industrial Relations Act 2000 as amended.

[44] In other words, as the argument goes it is not competent for the Industrial
Court to entertain a dispute or relief arising out of or in connection with an
instance of dismissal of an employee outside of the remedial process and
procedure set out in the Act. It was further contented by the Appellant that
this is the upshot of the Maia judgment that appears to have escaped the
Court’s attention.

[45] The Respondent’s counter argument is that the Industrial Court was merely
exercising its power to grant injunctive relief as provided for under Section 8
(3) of the Industrial Relations Act by staying the effect of the letter of
dismissal; that is to say the 1st Respondent was merely seeking the relief of
an interdict as opposed to review. It was further contended by the
Respondents’ counsel, Mr. Simelane, that he 1 st Respondent application
before the Court a quo was merely one for the enforcement of a binding
agreement whilst deferring to the Court a quo’s ruling to that effect on that
point.

[46] There are two problems with the 1 st Respondent’s and with respect the Court
a quo’s approach on the above questions. Firstly, nowhere in the Notice of
Application filed a quo by the 1st Respondent does she contend for a ‘stay’ of
the effect of the letter of dismissal, even if that were a competent remedy.
The only relief sought is a declarator that the said letter is unlawful, nullity
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 and therefore of no force and effect. What the 1 st Respondent seeks is the
‘setting aside’ of the said letter and not its ‘stay’.

[47] Secondly, as pointed out earlier herein the relief is demonstrably not one of
enforcement of an agreement. As indicated earlier the 1 st Respondent firstly
appears to have misconstrued the provision of the code of conduct; which
provision is inapplicable to the circumstances and facts as it clearly and
unequivocally qualified to be applicable to and regulate proceedings where
the employee fails to appear. That is evident from the wording of the code.
The breach alluded to is therefore unfounded.

[48] This leads me to what I consider to be the most pertinent and compelling
reason why the 1st Respondent’s position is untenable. It is that once there
has been a dismissal or termination of employment either perceived as
‘automatically, procedurally or substantively’ unfair, the Industrial Court
ultimately retains an exclusive statutory jurisdiction to hear and determined
such matters in terms of the procedural and remedial provisions under Part
VIII of the Act; its procedural prescripts must be followed.

[49] The Act has provided for and avails the aggrieved litigant who has been
unfairly dismissed, a special remedy which include the very substantive
relief the 1st Respondent seeks to assert including reinstatement or
compensation in the exercise by the Court’s discretion following an unfair
dismissal. Ironically the finding of ‘procedural unfairness’ alluded to in the

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 appeal tribunal finding that the 1st Respondent relies on forms part of the
very issues within the jurisdictional remit of the Court.

[50] I must mention that in support of the 1 st Respondent’s submissions and as

authority for the proposition that it is competent for the Industrial Court to
grant the relief it did, we were referred to the decision of this Court in the
matter of Gugu Fakudze v Swaziland Revenue Authority SZICA Case No.
8/2017 as authority relied upon for the argument that the setting aside of the
Appellant’s letter was justified. In that case in the judgment of Langwenya
AJA, this Court expressed its disapproval for a chairpersons deference to an
employer’s rejection of her prior recommendation and verdict discharging or
absolving an employee from, certain misconduct charges and the employers
rejection of that outcome in contravention of clear procedural provisions in a
binding disciplinary code. The Court in the SRA case further granted an
injunction interdicting an employer from proceeding with certain intended
and impending review or the tribunal’s decision. The Court pronounced the
process the employer had initiated to undo the tribunal’s findings to be
reviewable and thus set the same aside.

[51] In my view that Gugu Fakudze case and its outcome is not incompatible
with the principle set out by the full bench of the High Court in Maia and the
doctrine discernible therefrom as regards the jurisdiction of the Industrial
Court on the powers of review or lack thereof particularly on any matter
attendant on employment disputes. Further it is clear that in the Gugu
Fakudze case the circumstances thereof can be distinguished from those in

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 the instant case in that in the former case the employer had not ‘dismissed’
the employee but had simply initiated a process of reviewing the tribunal’s
outcome having indicated an intent to reverse such a decision adversely to
the employees interests. In the matter at hand the employee had already been
dismissed; her employment terminated thus subject to the remedial options
that avail dismissed employees to challenge such dismissal in law.

[52] In the circumstances of this case and having considered the law, it is my
decision that on the strength of the authority in the Maia judgment which is
binding on this Court, the Appeal has merit and therefore must succeed. It is
accordingly upheld. I make no order as to costs.

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Appearances:

For the Appellant: Mr. M. Sibandze

For the Respondent: Mr. M. Simelane

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