Court name
Conciliation Mediation and Arbitration Commission of eSwatini
Case number
MNZ 552 of 2007

Lukhele v St Joseph Mission (MNZ 552 of 2007) [2009] SZCMAC 54 (01 October 2009);

Law report citations
Media neutral citation
[2009] SZCMAC 54
Coram
Robert Mhlanga, Arbitrator

 

 

 

 

 

 

IN THE CONCILIATION, MEDIATION AND ARBITRATION COMMISSION (CMAC)

 

 

Held in Manzini                           CMAC Ref:   MNZ 552/07

 

In the matter between:

 

Gcina Lukhele                                        Applicant

 

AND

 

St Joseph’s Mission                                Respondent

 

 

CORAM:

 

Arbitrator                                   Mr Robert S. Mhlanga

For Applicant                              Mr S. Zwane

For Respondent                          Mr B. E. Simelane

 

 

ARBITRATION AWARD

 

 

 

VENUE : CMAC OFFICES, ENGULENIBUILDING GROUND FLOOR

 

 

 

1. DETAILS OF HEARING AND REPRESENTATION

 

        The Applicant is Gcina Lukhele and he was duly       represented by Mr Sandile Zwane in this case.

 

        The Respondent is St Joseph’s Mission and it was    duly represented by Mr Erick Simelane from Maduduza Zwane Labour Law Consultants and    Associates.

 

 

2. BACKGROUND OF THE DISPUTE

 

        The Applicant alleged that his services were     unfairly terminated by the Respondent.

 

        Pursuant to the alleged dismissal the Applicant        reported a dispute of unfair dismissal to the    Commission (CMAC).

 

        The dispute was duly conciliated upon, but it was    not resolved and as a result the commission    issued a Certificate of Unresolved Dispute.

 

        Subsequently, the parties referred the matter to     arbitration for determination of the dispute herein.

 

        On the 25th September, 2008 a pre-arbitration        meeting was held.  The purpose of this meeting inter alia, was to narrow the issues i.e to    determine which issues are in dispute and       which are not; to discover and or to exchange        documents (if any) to be       used during the hearing; to determine the number of witnesses each party would call and to set a date of hearing suitable to the parties. 

 

 

3.  ISSUE IN DISPUTE 

 

   The main issue to be decided in the present case is     whether or not the termination of the Applicant’s     services was fair and reasonable in the      circumstances        of the case as per the provisions of section 42 of        the Employment Act, 1980, as amended.

 

       Another question to be determined is whether or not the Applicant was an employee to whom section 35 of the Employment Act 1980 as amended applied.  This question arises from the fact that the   Respondent disputes that the   Applicant was an    employee to whom the aforesaid section 35        applied,   since he was the member of the Respondent’s     immediate family.

 

4.  SUMMARY OF EVIDENCE

 

       I will only summarize the key aspects of the evidence led herein, which I deem relevant in making my award.

 

        Applicant’s case

 

   4.1.1    Two witnesses testified in support of the                          Applicant’s case namely; the Applicant (Gcina                    Lukhele) and Mjozi Jele.

 

          GCINA LUKHELE’S EVIDENCE

 

4.1.2            Gcina Lukhele hereinafter referred to as the Applicant gave his evidence under oath.  I will refer to this witness as the Applicant,  AW1 and or   Mr Lukhele as the case may be.

 

4.1.3            The Applicant’s testimony was that he started     Grade 1 at St Joseph’s MissionPrimary School in      1987.  He testified that his school fees were paid   by his mother with the assistance of other people   like Mrs Dlamini and Mrs Simelane who were       working as nurses at Nazarene in Manzini.  He      said that he was staying at the Respondent‘s       hostel, but he used to go home during school      vacations.

 

4.1.4            The Applicant further testified that when he was doing Form 1 at St Joseph’s MissionHigh School his School fees were paid by Save the Children Fund (alias Zondle).  Mr Lukhele stated that in     1996, when he was doing Form 3, father Ciccone        offered him an accommodation at St Joseph’s    Mission.  In other words in 1996 he resided in the       Respondent’s Boarding House as a Boarder.  Mr      Lukhele testified that he completed his O’level in 1998; but he continued to live in the hostel.  He      said that in 1999, the Respondent through Father Ciccone employed him initially as an assistant       Boarding master.  In 2002, he was promoted to the position of Boarding Master, a position he held   until the date of his alleged dismissal.  The Applicant replaced the erstwhile Boarding Master, one Moizen Vilakati.

 

4.1.5            The Applicant stated that it was agreed between the parties that he would earn a salary of E500-  00 per month.  He said that father Ciccone proposed that a sum of E400-00 should be kept by     him on behalf of the Applicant until such time the Applicant would decide that he needed it.  The        Applicant testified that pursuant to this      arrangement, the Respondent paid him a sum     of E100-00 per month, while the balance of        E400-00 was kept by Father Ciccone      on his     behalf.

 

 

4.1.6            The Applicant testified that in or about 2005 he   approached father Ciccone and requested him to   pay him (Applicant) all his money he (Father        Ciccone) had been keeping or       saving for him       (Applicant) from the date of his employment to   date.  He said that Father Ciccone kept on promising him that he would give him his money,    but unfortunately he failed to do so.

 

4.1.7            It was the Applicant’s testimony that on the 9th  September, 2006 his services were unfairly     terminated by the Respondent through Father   Ciccone.  The Applicant alleged that on the said   date Father Ciccone sent a certain Mr Shongwe     and Willy Dlamini to tell him that his services were   summarily terminated, and he was ordered to      vacate the house he was occupying with      immediate effect.  He said that he was told that    someone from Hlathikhulu was going to replace him as a Boarding Master.

 

4.1.8            The Applicant stated that he vacated the      Respondent’s Boarding House on the same day as   per Father Ciccone’s directive.  The Applicant said       that after about three (3) weeks he tried to meet      Father Cicccone with a view to clear the air between the parties or to sort out any differences   or misunderstanding between them.  But      unfortunately Father Ciccone refused to have an  audience with him.  The Applicant stated that as a    result of the strained relationship between him     and Father Ciccone, the Father forbade him from      attending church at St Joseph’s Mission.

 

 

 

 

 

CROSS EXAMINATION

 

4.1.9            During cross examination the Applicant denied the      fact that his school fees were paid by the       Respondent.  The Applicant also reiterated that in terms of the contract of employment the      Respondent was supposed to pay him a salary of        E500-00 per month.

 

4.1.10        It was put to the Applicant by the Respondent’s   Representative that the Applicant was not   employed, but        he volunteered to assist the      Respondent in performing the       duties of a Boarding      Master.  But however, the Applicant     disputed this; the Applicant maintained that he was       employed by the Respondent.

 

4.1.11        It was further put to the Applicant that Father     Ciccone   talked to the Director of Ekululameni     Rehabilitation Center to engage him there     because the Respondent did not have   money to       pay him (Applicant).  Again the Applicant denied      this allegation.

 

4.1.12        The Applicant reiterated that his services were     unfairly      terminated by the Respondent.

 

MAJOZI JELE’S EVIDENCE

 

4.1 13  Majozi Jele was called by the Applicant to testify                on his behalf.  I will refer to this witness as AW2                or Mr Jele as the case may be.

 

4.1.14    AW2 testified that he is the former student of St Joseph’s High School.  He testified that in 1999, when he was doing Form 2, the Respondent introduced the Applicant to the students that he was now an assistant Boarding Master.  AW2 stated that in 2002 the Applicant became the Boarding Master.

 

4.1.15    AW2 testified that, there were student’s who were fostered by Father Ciccone and these students were known as the Father’s ‘Children’ (Bantfwana bemfundisi).  But however AW2 said that to his knowledge the Applicant was not the Father’s foster child (umtfwana wemfundisi).

 

 

CROSS EXAMINATION

 

4.1.16    Under cross examination AW2 testified that before the Applicant’s appointment in 1999, Mr Moizen Vilakati was the incumbent Boarding Master.  He further stated that the Applicant was initially appointed as Mr Vilakati’s Assistant in 1999.

 

4.1.17    It was put to AW2 that the Applicant was the Father’s foster child.  In response AW2 stated that he did not have an answer to this question, because he did not know the personal relationship between the Applicant and Father Ciccone.  On the other hand, it was put to AW2 that the Applicant was never appointed as a Boarding Master.  AW2 said that he could not respond to this allegation.

 

4.2      RESPONDENT’S CASE

 

4.2.1        The Respondent led the evidence of three (3) witnesses in its case namely, Thandi Ginindza, Willy Dlamini and Jabulani Mandlazi.

 

4.2.2        Thandi Ginindza, hereinafter referred to as RW1 gave her testimony under oath. RW1 testified that she is currently employed as the Deputy Principal of St Joseph’s Primary School.  On the other hand, RW1 testified that she is the coordinator of St Joseph’s Boarding House.  She said that as a coordinator her duties, inter alia entails, looking after the Welfare of the students residing in the Boarding House or Hostels.

 

4.2.3        RW1 stated that she is so close to Father Ciccone, such that she regards herself as the Father’s Right-hand person or assistant.  Ms Ginindza testified that the Applicant first came to St Joseph’s Mission between 1988 and 1989 and at this time he was doing grade 1.  She said that the Applicant did not do well in Form 5, and as a result he upgraded the subjects in which he did not do well.  She said that Father Ciccone personally paid the Applicant’s school fees during his upgrading.

 

4.2.4        RW1 also testified that the Respondent assisted the Applicant by securing a sponsor from Germany known as KNH, which was responsible for the payment of the Applicant’s schools fees.  RW1 stated that upon completion of his O’level the Applicant’s name was removed from the list of children who were sponsored by KNH.  In other words, the Applicant ceased to be the beneficiary of the KNH sponsor.

 

4.2.5        RW1 disputed the Applicant’s allegation that he was employed by the Respondent as a Boarding Master.  RW1 stated that upon completion of his O’Level (Form 5), the Applicant continued to reside in the Respondent’s Boarding House or hostel.  She said that the Applicant rendered his assistance to the Respondent just like all students who were previously assisted financially by the Respondent to complete school.  She stated that the Applicant was one of Father Ciccone’s foster children, who are commonly referred to the mission as “Bantfwana bemfundisi”.

 

4.2.6        It was RW1’s testimony that the Applicant was given a pocket money in the sum of E100-00, and over and above this, he was provided with free meals and accommodation.  RW1 testified that Father Ciccone asked Mr Randy Fleming, the then Director of Ekululameni Rehabilitation Centre to employ the Applicant.  She said that consequently the Applicant was employed by Ekululameni Rehabilitation Centre and he was in the Optical Department.  RW1 said that despite the fact that the Applicant was now working for Ekululameni Rehabilitation Centre, but he continued to perform his duties as a Boarding Master and he was still residing at the Respondent’s hostel.  RW1 stated that the Applicant still received the E100-00 per month.

 

4.2.7        Ms Ginindza (RW1) testified that, following his new job, the Applicant was unable to properly execute his duties at the Boarding House, hence the Respondent through Father Ciccone relieved him of his duties to enable him to concentrate on his new job.

 

CROSS EXAMINATION

 

4.2.8        Under cross examination, RW1 maintained that the Applicant was not employed by the Respondent (St Joseph’s Mission).  She stated that the Applicant, Gcina Lukhele was asked by Father Ciccone to assist the Respondent in performing the duties of a Boarding Master.  She said that Gcina was the Father’s ‘Child’ (umtfwana wemfundisi).  She alleged that the Applicant was assisting the mission as the Father’s ‘child’. RW1 said that even the Respondent’s records do not reflect that the Applicant was the Respondent’s employee. She testified that the official Boarding Master was employed for the first time in 2007.

 

4.2.9        RW1 further testified, under cross examination, that the Applicant was given E100-00 by the Respondent as a pocket money.  She said that the E100-00 was not a salary, but it was meant to help the Applicant to buy toiletries.  RW1 alleged that even the Applicant’s predecessor, Mr Moizen Vilakati was getting the sum of E100-00 per month, when he was assisting as a Boarding master.  She said that Mr Vilakati was also the Father’s ‘child’ (umtfwana wemfundisi) and he was not employed.

 

4.2.10    RW1 testified that the Applicant was employed by Ekululameni Rehabilitation Centre on a full-time basis.  She said that, following his new job at Ekululameni, the Applicant was no longer able to properly execute his duties as a Boarding Master.  Consequently the Respondent terminated his services to enable him to focus on his new job.  RW1 stated that the Applicant was consulted before his services were terminated.

 

4.2.11    During re-examination this witness (RW1) was asked if she knew anything about the purported contract of employment between the Applicant and Father Ciccone, in terms of which the Applicant was employed and was promised a monthly salary of E500-00.  In response RW1 stated that she was not aware of such a contract of employment.

 

4.2.12    RW1 admitted that it is possible that the aforesaid agreement between the Applicant and Father Ciccone might have been concluded in a private meeting between the Applicant and the Father (umfundisi) during a one-on-one talk the Father might have had with the Applicant as his ‘child’.  She said that Father Ciccone would occasionally have a private one-on-one talk with his ‘children’.

 

WILLY DLAMINI’S EVIDENCE

 

4.2.13    Willy Dlamini hereinafter referred to as the second Respondent’s witness (RW2) also testified under oath on behalf of the Respondent.  Briefly, RW2 testified that he is presently employed as a Teacher at SalesianPrimary School.  He stated that he still resides at Joseph’s Mission (Mzimpofu) as he is the Father’s ‘child’.

 

4.2.14    RW2 stated that he knows the Applicant, Gcina Lukhele; and that he has known him since their schooling days, when they were both students at St Joseph’s High School in 1997.  He alleged that the Applicant was the Father’s ‘child’ (Umtfwana wemfundisi), because he was residing in the mission and he always remained behind in the hostel during school holidays.

 

4.2.15    RW2 also testified that the Applicant’s fees for upgrading lessons were paid by Father Ciccone.  RW2 further testified that in or about 2003, the Applicant was employed by Ekululameni Rehabilitation Centre.  It was RW2’s testimony that, though the Applicant was working at Ekululameni, but he resided at the Boarding house; and he was still getting free meals, just like before.

 

4.2.16    RW2 further testified that eventually the Respondent employed a certain Mr Maphalala as a Boarding Master.  Consequently, the Applicant was relocated to the guest house at Ekululameni.  RW2 stated that Father Ciccone sent him together with Peter Shongwe to tell the Applicant to move out of the house he was presently occupying to the guest house provided by Ekululameni.

 

CROSS EXAMINATION

 

4.2.17    It was put to RW2 that the Applicant was employed as a Boarding Master.  In response, RW2 stated that he was not aware that the Applicant was employed by the Respondent as alleged herein.

 

4.2.18    Under cross examination, RW2 maintained that the Applicant was the Father’s foster child (umtfwana wemfudisi).

  

JABULANI MANDLAZI’S TESTIMONY

 

       May I point out that this witness was called at the      arbitrator’s request as there was a dispute of fact   regarding the Applicant’s employment at Ekululameni.         Otherwise the Respondent closed its case after       having led the evidence of the two aforementioned     witnesses.  Therefore, I requested the Respondent’s      Representative to call someone from Ekululameni’s management to give evidence as to how and when was        the Applicant engaged by this institution.

 

4.2.19    Jabulani Mandlazi, hereinafter referred to as the third Respondent’s witness (RW3), gave his testimony under oath, and he stated that he is presently employed by Ekululameni Rehabilitation Centre, which is situated at the Respondent’s compound.  RW3 stated that from 2007 to 2008, he was an Acting Director of Ekululameni, following the departure of the erstwhile Director, Mr Randy Fleming.

 

4.2.20    RW3 testified that personally he knows the Applicant.  He said that he has known the Applicant since the time when they were students and Boarders at St Joseph’s Mission.  RW3 and the Applicant both went to St Joseph’s High School and they were residing at St Joseph’s Hostel.

 

4.2.21    It was RW3’s evidence that the Applicant, Gcina Lukhele was employed by Ekululameni in or about 2001.  RW3 testified that in or about 2001 the Applicant approached him and he told him that he was looking for a job in order to cater for his sister’s educational expenses; his sister was said to be doing Form V.  RW3 said that he referred the Applicant to the Director, Mr Fleming, and subsequently the Applicant was employed by Ekululameni, and he was based in the laboratory (optical) section.  Mr Mandlazi (RW3) stated that at the time the Applicant joined Ekululameni he was still working for the Respondent as the Boarding Master.

 

CROSS EXAMINATION

 

4.2.22    Under cross examination RW3 maintained that the Applicant was employed by Ekululameni in 2001.  He said that the Applicant was employed on a fixed term contract of one year, with an option to renew.  RW3 vehemently disputed the allegation that the Applicant was employed by Ekululameni in 2006.

 

4.2.23    It was RW3’s evidence that Ekululameni Rehabilitation Centre, though headed by a Director, is part of St Joseph’s Mission as a whole.

 

5. ANALYSIS OF EVIDENCE AND SUBMISSIONS

 

        In the present case there are two (2) issues which I am called upon to decide namely; whether or not      Applicant was employed by the Respondent.  Secondly, in the event it is proved that the   Applicant was an employee in terms of section 35    of the Employment Act 1980, as amended, then I     will be required to determine whether the    Applicant’s services were terminated in line with    section 36 of   the Employment Act, 1980 as   amended.

 

        In casu, both parties filed their closing arguments   or submissions in support of their respective     cases.

 

        It is the Applicant’s    submission that he was employed by the Respondent in 1999, initially as an assistant Boarding Master, and he was later        promoted to the position of the Boarding Master in     2002.  The Applicant contends that he entered       into a verbal contract of employment with the Respondent, which was duly represented by        Father Ciccone, in terms of which he was engaged    as an assistant Boarding Master.  He further    asserts that it was agreed between the parties     that he would be paid a salary E500-00 per      month, of which     E400-00 was by agreement    kept by Father    Ciccone on his behalf and only      E100-00 per month was paid to him.

 

        The Applicant denies the Respondent’s allegation     to the effect that, he was not an employee to        whom section 35 of the Employment Act, 1980    applied, by virtue of the fact that he (Applicant) was a member of the Respondent’s immediate family.  On the contrary the Applicant        argues that the relationship between him and the    Respondent is an employer-employee relationship,   which emanates from the aforesaid contract of    employment herein.  In this regard, reference is      made to the case of Meshack Zwane v The       AllianceChurch In Swaziland (IC case No.    41/99), at page 4 wherein the following essential elements of a contract of    employment were outlined namely; (a) an   agreement (b)  In terms of which services        are   rendered (c) under the authority of the employer    (d) for remuneration.

 

        The Applicant further avers that the salary advice    slip, which was issued to him by the Respondent is a clear indication that he was the    Respondent’s employee.

 

        The Applicant maintains that his services were unfairly terminated by the Respondent on the 9th   September, 2006.  The Applicant argues that his    dismissal herein was both procedurally and      substantively unfair, and that it was not permitted      by Section 36 of the Employment Act 1980 as    amended. The Applicant disputes the       Respondent’s allegation that he was never       dismissed, but that he was transferred from St    Joseph’s Mission to Ekululameni.

 

        In conclusion, the Applicant prays that an Award     be issued in his favour for the payment of the   terminal benefits set out in paragraph 2 of the    Certificate of Unresolved Dispute.  The Applicant     submits that he should have been paid in       accordance with the Government Gazette    regulating the salary of Boarding Masters.  He alleges that in 2006, Boarding Masters were on     Grade A which is E49000-00 per annum.   The    terminal benefits being sought herein are as    follows; (a) Notice pay (b) Additional notice pay      (c) Leave pay (d) Severance pay (e)    Underpayments and (f) Maximum compensation     for unfair dismissal.

 

        On the contrary, it is submitted on the     Respondent’s behalf that, the Applicant was not an      employee to whom Section 35 of the Employment    Act 1980 applied, because the Applicant was the     Member of the Respondent’s immediate family.    Therefore, it is argued that the Applicant can not   claim to have been unfairly dismissed by the       Respondent.  In short the Respondent disputes      that the Applicant was unfairly dismissed.

 

        It is further argued on Respondent’s behalf      that the Applicant, after having completed high   School, was requested by Father Ciccone to assist    at the Boarding house as a Boarding Master.  It is   argued that the E100-00 given to him was not a     salary, but it was an allowance to enable him    to buy toiletry.  It is the Respondent’s contention    that the Applicant was the Father’s ‘child’ (umtfwana wemfundisi) and that he was assigned       by the father to assist as per the Respondent’s policy.  It is argued that the Mission’s policy is that    the father is entitled to assign any of the mission’s    ‘children’ to do any work.

 

        It is the Respondent’s argument that the Applicant has failed to show that he was an employee as   defined in Section 2 of the Industrial Relations Act 2000 as amended, as well as Section 2 of the      Employment Act 1980 as            amended. Respondent’s       submission that the relationship between the    parties was not a contractual relationship, but it was “one of honour and obligation”.  It is argued     that the parties were not ad idem   and as such    they never intended to form a legally enforceable    contract of employment.  In this regard, the    Respondent inter alia, referred to the case of   Church of the Province of Southern Africa    Diocese of Cape Town V CCMA and Others       [2001] 22 ILJ 2274 (LC).

 

        Now turning to my analysis of both the parties’       foregoing submissions and the entire evidence led    herein; the Applicant is the first to discharge the onus of proof as to whether he was an employee        to whom Section 35 of the Employment Act 1980    as amended applied.  In the event it is proven that     indeed the Applicant was an employee to whom   Section 35 applied at the time of his alleged unfair        dismissal, then the onus will shift to the     Respondent in terms of section 42 (2) of the       Employment Act 1980 as amended.

 

        In his evidence-in chief the Applicant testified that   in 1999 he entered into a verbal agreement of     employment with the Respondent, which was    duly represented by Father Ciccone in his capacity as the Head of the Respondent    Mission,   in terms of which he was appointed initially as     an Assistant Boarding Master (The underlined is       my emphasis).  The Applicant further    alleged    that in 2002, following Mr Moizen Vilakati’s    departure he was promoted to be the Boarding       Master, a position he held until his dismissal in       September, 2006.  The Applicant also testified    that he was paid E100-00 per month, being the      part payment of the agreed salary of E500-00;     and the   balance of E400-00 was by consent    between the       parties, retained or kept by the     Father (Umfundisi) on his behalf.

 

        It is my considered view that the Applicant has       been able to prove that, at the time of his   dismissal, he was an employee to whom section 35    of the Employment Act 1980 applied.  The       Respondent’s evidence, in the form of RW1 and     RW2 has fallen short and as such it could not    rebut the Applicant’s evidence in this regard.  RW1 and RW2 merely alleged (without proof) that the    Applicant was not employed by the Respondent,   but he was assisting as he was Father Ciccone’s   ‘child’ (umtfwana wemfundisi).  This was based on       the fact that the Applicant’s educational expenses     were paid by the Father (umfundisi); and that the    Applicant was residing in the Boarding house or      hostel and that he was given free meals and      accommodation.

 

        The evidence led herein reveals that none of the      Respondent’s witnesses (in particular RW1 and   RW2) were present when the Applicant and the   Respondent concluded the aforesaid contract of   employment. RW1 in her evidence-in chief claimed that the Applicant was never employed by    the Respondent.  But surprisingly, under      cross examination she admitted that she did     not know whether there was a contract of    employment between the Applicant and the     Respondent.  She    admitted that the contract of    employment between the parties could have been       concluded privately during a meeting the father   might have had with the Applicant (as the      father would occasionally have a   private peptalk    with the foster       children).  On the other hand, RW2      also stated that he did not know anything about the said contract of employment.

 

        I also hold the view that the Respondent has not     been able to show that the Applicant was a        member of the Respondent’s immediate family.  It     is my considered view that a definition of an       immediate family does not include a foster child.      The Respondent’s argument that the Applicant    was a member of the Respondent’s family is    untenable and as such it ought to be disregarded.

 

        On the other hand the Applicant has proved that     he was an employee as defined or stipulated by     both Section 2 of the Industrial Relations Act 2000       as amended and Section 2 of the Employment Act      1980, as amended.  Section 2 of the Employment      Act 1980 defines an employee as “any person to   whom wages are paid or are payable under a    contract of employment”.  Section 2 of the      Industrial relations Act 2000 as amended defines      an employee as “a person, whether or not the    person is an employee at common law, who works for pay or other remuneration under a contract of service or under any arrangement involving  control by …another person”.

 

        The Applicant has been able to prove that he was    a person to whom wages were paid under a       contract of employment and or that he worked for   pay or remuneration.  Evidence, in the form of a payslip, was adduced by the Applicant which   shows that he was paid a salary of E100-00 per    month.  A copy of the pay slip for the month   ending 31st August, 2005 is filed of record.  No documentary evidence was adduced by the Respondent to disprove this evidence.

 

        Since the Applicant has proved that at the time of   his alleged dismissal, he was an employee to whom section 35 applied; now the Respondent    bears the onus of proof in terms of section 42 (2)   (a) and (b) of the Employment Act 1980.  In     terms of section 42, the Respondent must prove      that the Applicant’s services were terminated for a reason permitted by section 36 of the      Employment Act 1980 as amended.  The    Respondent must also establish that, taking     into account the circumstances of the case, it was reasonable to terminate the Applicant’s services.

 

        With regard to the issue of the onus of proving the fairness of the Applicant’s dismissal herein; the    Respondent led no evidence to specifically justify     the Applicant’s dismissal.  In fact, the Respondent      argues that the Applicant was never employed by   the Respondent in the first place.  It is the      Respondent’s case that the Applicant was only     assisting in the Boarding House because he was    the father’s foster ‘child’ (umtfwana wemfundisi).  It is the Respondent’s argument that since the    Applicant was the member of the Respondent’s   immediate family, therefore he was not an     employee in terms of section 35 of the Employment Act, hence he could not be said to       have been unfairly dismissed.

 

 

6. CONCLUSION

 

        In light of the foregoing analysis of evidence    herein, and taking into account the circumstances     of the case; it is my conclusion that the Applicant        was an employee to whom section 35 of the       Employment Act 1980 as amended applied (as I       have already pointed out above herein).

 

        It is also my conclusion that the Respondent has     failed to discharge the onus placed on it by section   42 (2) of the Employment Act, 1980 as amended,       in that the Respondent has failed to prove that the    Applicant’s dismissal was for a reason permitted      by Section 36 of the Employment Act 1980, and    that the dismissal was fair and reasonable in the circumstances of the case.  As I have stated in my      foregoing analysis, the Respondent has not endeavored to discharge the onus of proof herein;    moreso because the Respondent disputes that the      Applicant was an employee as contemplated by   Section 35 of the Employment Act.

 

        Therefore, the evidence of RW1 and RW2 was led    solely to establish or show that the Applicant was never employed by the Respondent and that he    was a member of the Respondent’s immediate        family (because he was the father’s foster child).

 

        Overall, it is my finding that the Applicant was dismissed by the Respondent as alleged by him,      and I am convinced that his dismissal was both       procedurally and substantively unfair.  In casu, it        is common cause that no disciplinary hearing was   held to afford the Applicant an opportunity to be   heard prior to the termination of his services.      RW1, Thandi Ginindza was the only witness who   testified that, due to the fact that the Applicant   was employed by Ekululameni, he was unable to    properly execute his duties at the Boarding House, hence Father Ciccone relieved him of his duties.      Seemingly, this is the reason which led to the    Applicant’s dismissal.  The Respondent has failed     to prove that this reason was valid and warranted    under section 36 of the Employment Act, 1980 as   amended.

 

        May I also point out that the Applicant’s version      pertaining to his contract of employment and unfair dismissal stands uncontroverted or    unchallenged because of the fact that the        Respondent failed to call its potential key   witness, Father Ciccone to dispute or counter the    allegations which relate to him in his capacity as     the Head of the Respondent.   For instance, the     Respondent has not been able to effectively       dispute the non existence of the contract of employment between the Applicant and the      Respondent.

 

        Having held that the termination of the Applicant’s services was both procedurally and substantively      unfair, I am now required to determine an    appropriate award or compensation, which is fair     and equitable in the circumstances of the case.

 

        In my view a compensation of five (5) months’       wages is fair and equitable.  In arriving at this decision, I have taken into account; inter alia, the fact that the Applicant was working or employed by Ekululameni Rehabilitation Centre at the time   of his unfair dismissal.  With regard to his new employment, I have taken into account that he   was permitted by the Respondent to continue to     work for the mission whilst at the same time he    was working for Ekululameni.  The Respondent    continued to provide him with free accommodation       and meals, which I regard as part of the    Applicant’s benefits, associated with his job.

 

        May I also mention that, in law an employee,   although unusual, may have more than one       employer.  In this regard see the case of Gogo v    University of KwaZulu-Natal and Others [2007] 28   ILJ.  In this case professor Gogo was employed by the University of KwaZulu-Natal, as an    orthopaedic Surgeon, while at the same time he      was employed        by the Department of Health of the    KwaZulu-NatalProvince, as the Head of the orthopaedic Surgery Section.

 

        The Applicant’s compensation will be calculated at   the rate of E500-00 per month, multiplied by 5    months.  I do not accept the Applicant’s    contention that he was entitled to be paid on the    Government scale applicable to Boarding Masters.     The Applicant, was entitled to be paid at the agreed sum of E500-00 per month.  As I stated   above, I accept the Applicant’s version that the    parties at the inception of the contract of    employment agreed on a monthly salary of E500-   00.

 

        It is also my considered view that the Applicant is   entitled to be paid the underpayment, being the      outstanding balance of his wages of E400-00 per month.  The underpayment will be calculated over      the period of eighteen (18) months.

 

        Regarding the leave pay, in my view the Applicant   has failed to justify the payment of this claim.     The Applicant led no evidence to justify this claim,      hence this claim fails.

 

        It is my considered view that the Applicant is   entitled to be paid notice pay, additional notice     and severance allowance.

 

7.  AWARD

 

        Pursuant to the foregoing conclusion and findings    herein, and having taken into account the   circumstances of the case, I hereby make the    following award;

 

        That the Respondent is ordered to pay to the   Applicant within thirty (30) days from date of   receipt of this award the following terminal benefits; 

 

 

       (a)  Notice pay                          -              E500-00

       (b)  Additional notice                -        E461-52

       (c)  Severance allowance             -        E1, 153-80

       (d)  Underpayment                      -       E7, 200-       00

       (e)  Compensation for unfair dismissal - E2, 500- 00

 

 

       TOTAL                                       -        E11,    815-32

 

 

 

 

DATED AT MANZINI ON THIS…… DAY OF OCTOBER, 2009.

 

   

 

 

                                                   ___________________

                                                   ROBERT S. MHLANGA

                                                CMAC COMMISSIONER