IN THE INDUSTRIAL COURT OF SWAZILAND

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1 IN THE INDUSTRIAL COURT OF SWAZILAND HELD AT MBABANE CASE NO. 375/05 In the matter between: SAMUEL MSIBI APPLICANT And CHEMLOG (PTY) LIMITED RESPONDENT CORAM: P. R. DUNSEITH : PRESIDENT JOSIAH YENDE : MEMBER NICHOLAS MANANA : MEMBER FOR APPLICANT : M. DUBE FOR RESPONDENT : A. LUKHELE J U D G E M E N T 30/04/ In this application the applicant claims payment of terminal benefits and maximum compensation arising from the alleged unfair termination of his services by the respondent. 1

2 He also claims payment of underpaid wages and overtime worked. 2. The respondent denies that it employed the applicant and disputes its liability to pay the applicant s claims. 3. The applicant bears the burden of proving that he was employed by the respondent. In his particulars of claim, he pleads as follows: The applicant submits that in or about March 2001 he was engaged in employment by the director(s) of Chemlog to work for their other company called Swazi Cables (Pty) Limited and, eventually, was transferred to Chemlog (Pty)Ltd for which he worked as a general labourer until the respondent dismissed him on the 10 th February The respondent pleads in reply to this averment as follows: The respondent states that the applicant was during March 2001 employed by Swaziland Cable Manufacturers (Pty) Limited and worked continuously for Swaziland Cable 2

3 Manufacturers (Pty) Ltd until November 2004 when it closed down. The respondent avers that the applicant only worked for it on an ad hoc basis for only two months when he for no reason absconded from work. 5. The applicant testified that he was employed by Kogi Patrick, a director of Chemlog. He denied that he was engaged to work for Swaziland Cable Manufacturers (Pty) Ltd as pleaded in his own particulars of claim. He said he was employed to work at Chemlog, but Mrs. Patrick occasionally rotated him and other employees to work at the other companies in which she had an interest, namely Swaziland Cable Manufacturers and a company called Regal International. 6. The applicant said his principal duty was manufacturing soap by mixing chemicals. He bolstered his evidence by volunteering the recipes for different kinds of soap manufactured by Chemlog, also giving details of Chemlog s 3

4 customers, suppliers and drivers. He said that in 2004 Swaziland Cable Manufacturers moved to Maputo in the Republic of Mozambique and he was sent to Maputo. He said he worked in Maputo in September and October 2004, but he returned to Chemlog because he was not treated fairly. In November 2004 he was sent to Maputo to collect three cabling machines for delivery to a company called Voltex at Matsapha. He assembled the machines at Matsapha, and after three weeks he returned to Chemlog where he worked until his dismissal on 10 th February The applicant was unable to produce any single document evidencing that he was employed by or at Chemlog. He said he signed a Particulars of Employment form shortly after his employment, but he did not have a copy. He said he never received a pay slip with his monthly wages. He did not receive a letter of dismissal. 8. The applicant called Sibusiso Maziya to testify on his behalf. Mr. Maziya said he started working for Chemlog in 4

5 September, He said he worked with the applicant at Regal and Chemlog from September 2004 until he was dismissed in February This conflicts with the applicant s evidence that he worked in Maputo and then at Voltex Matsapha from September to November Maziya did not know what position the applicant held at Chemlog, and when it was put to him that the applicant was never employed by Chemlog, he said he did not know. 9. Mrs Kogi Patrick testified on behalf of the respondent. It is common cause that she is a director and shareholder of Chemlog. She denied that the applicant was ever employed by Chemlog. She said he was employed by Swaziland Cable Manufacturers. According to her, Swaziland Cable Manufacturers was owned by her ex-husband Norman Patrick. She was initially a director and shareholder until she resigned in about Mrs. Patrick said Swaziland Cable Manufacturers closed down in Swaziland in 2004 and shifted its operations to Maputo. It subsequently closed down entirely. After its closure, the applicant asked her for a job at 5

6 Chemlog. She assisted him by arranging employment for him at Voltex, Matsapha. 10. Mrs. Patrick stated that she has the payroll and Swaziland National Provident Fund records for Chemlog, and the applicant does not appear as an employee of Chemlog. She was not asked to produce these records. She did produce the Chemlog attendance register for the period March 2004 to May The applicant s name does not appear in this register. The applicant s representative correctly points out that a page or pages have been torn out of the register in the month of January 2005, but the rest of the register appears to be intact. 11. Kogi Patrick made an affidavit in interlocutory proceedings related to this matter. In her affidavit she states: When Swaziland Cable Manufacturers (Pty) Limited closed down he [the applicant] begged me for a job and I got him a job at applicant s [Chemlog s] Matsapha depot where he only worked for two months and he left. 6

7 12. Under cross-examination she said that she arranged a job for the applicant at Voltex, Matsapha after Swaziland Cable Manufacturers closed down. She said the reference in the affidavit to Chemlog s Matsapha depot was an error, since Chemlog has never had premises at Matsapha, and the reference was intended to be to Voltex s Matsapha depot. Since the applicant confirms that Chemlog has no depot at Matsapha and that Mrs. Patrick did arrange for him to work at Voltex Matsapha after Swaziland Cable Manufacturers closed down, we find that the allegation in the affidavit was erroneously recorded and the discrepancy does not materially impact on Mrs. Patrick s credibility. 13. There was a further blemish in Mrs. Patrick s testimony, relating to the date when she ceased to be a director of Swaziland Cable Manufacturers. The discrepancy between her oral testimony and the Form J filed at the Companies Registry Office suggests that Ms. Patrick has tried to 7

8 downplay the extent of her interest in Swaziland Cable Manufacturers and her involvement in its administration. 14. The respondent also called Zanele Khumalo as a witness. She said that she was employed by Chemlog from 1995 to In 2002 she was transferred to Swaziland Cable Manufacturers and employed there as manageress until July She supervised staff and was in charge of the payroll. She said that she met the applicant for the first time when she started working at Swaziland Cable Manufacturers in He was operating a machine making cables. She said he never worked at Chemlog whilst she was there in 2001 and When she left the employ of Swaziland Cable Manufacturers in 2004, the applicant was still working there. 15. Zanele Khumalo handed in copies of PAYE returns filed with the Department of Taxes by Swaziland Cable Manufacturers. These returns record that graded tax was 8

9 paid for the applicant by Swaziland Cable Manufacturers in 2002, 2003 and Zanele confirmed that the employees at Swaziland Cable Manufacturers were sometimes instructed to do work at Chemlog & Regal, but she said they continued to be paid by their employer Swaziland Cable Manufacturers, including payment for any overtime worked at a sister company. 17. Zanele Khumalo s evidence was consistent and unshaken in cross-examination. She is no longer employed by Chemlog or Swaziland Cable Manufacturers. She may be regarded as an independent witness. 18. The court is confronted with two mutually destructive versions regarding the identity of the applicant s employer. After careful consideration of all the facts and evidence, we accept the version of the respondent for the following reasons: 9

10 18.1. Although the evidence of Kogi Patrick was not entirely satisfactory, her denial that the applicant was employed by Chemlog was corroborated by Zanele Khumalo and by the Chemlog attendance register; Zanele Khumalo testified that the applicant never worked for Chemlog and that she met him for the first time at Swaziland Cable Manufacturers in She was the applicant s manager at Swaziland Cable Manufacturers and she paid him his wages. She produced records proving that the applicant s graded tax was paid by Swaziland Cable Manufacturers. Her assertion that the Applicant was an employee of Swaziland Cable Manufacturers is credible and convincing. She has no reason to lie The applicant first reported a dispute against Chemlog Cables. This was amended when it was 10

11 realized that no such company existed. The applicant s own particulars of claim aver that he was engaged to work for Swaziland Cable Manufacturers The applicant s testimony was unconvincing. He denied his particulars of claim in order to distance himself from Swaziland Cable Manufacturers, and he generally attempted to play down his working association with that company. If Chemlog was his primary employer for a period of 5 years, we find it hard to believe that he could not produce a single witness or document which verified such employment. The details of chemicals, recipes and suppliers that he volunteered were glib and appeared rehearsed. These details could have been gathered from other sources within Chemlog. They do not amount to corroboration. His passport shows that he travelled to South Africa in 2001, but this 11

12 does not prove he did so as an employee of Chemlog. 19. The court finds that the applicant has failed to discharge his burden of proving that he was employed by the respondent in March 2001 and continuously employed thereafter until February Although it is pleaded in the respondent s reply that the applicant worked for Chemlog on an ad hoc basis for 2 months after November 2004, Kogi Patrick denied this and said that she only found the Applicant a job at Voltex Matsapha after Swaziland Cable Manufacturers closed down. The Applicant also denied working for Chemlog on an ad hoc basis for two months, and insisted that he was continuously employed by Chemlog from March 2001 to February It is not for the court to speculate what actually occurred after Swaziland Cable Manufacturers closed down in about November 2004, and whether any employment relationship between the Applicant and 12

13 Chemlog came into existence at that stage. This is not the case advanced by either of the parties. 21. Since the Applicant has failed to prove that he was employed by the Respondent, the circumstances of his alleged dismissal are irrelevant in these proceedings. The application is dismissed, with no order as to costs. The members agree. PETER R. DUNSEITH PRESIDENT OF THE INDUSTRIAL COURT 13

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