DISPUTES THAT CAN BE REPORTED TO CMAC BY AN EMPLOYER (PART 2) In part one of this article, which appeared last weekend, the failure to serve notice, the breach of a fixed term contract and that of a study leave agreement were given as examples of disputes which can be reported to CMAC by an employer. Other examples appear below. Breach of a contract in restraint of trade. An agreement in restraint of trade is an agreement entered into at the beginning of or during an employment contract, in which an employee agrees that, upon termination of employment, he will not work in a similar job or for a competitor for a stipulated period of time and within a stipulated radius from the employer’s business e.g. a motor mechanic agrees that he will not take up work within a 5 kilometre radius of the employer’s business for a period of 6 months. Where the former employee breaches this agreement in relation to the contemplated time frame or distance, the employer may report a dispute. To succeed in his claim, the employer must be able to prove that the agreement was reasonable in the circumstances. In YKK Southern Africa (Pty) Ltd v James Bond HC Case 2050/2008, the employer brought an application to enforce a restraint of trade agreement and to recover certain items which had been acquired by the employee in the course of his employment. Recovery of employer’s property Where an employee is entrusted with the employer’s property as an employment benefit e.g. laptop, phone or car, and the employee fails or refuses to return same upon the termination of employment, the employer may report a dispute to the Commission for the recovery or payment of that item in question. An employee whose services have been terminated yet he was provided with accommodation, must be given one calendar month within which to vacate the house (see Section 18 of the IRA). In Swaziland Government v Zeblon Mhlanga HC Case 4159/2008, the High Court held that it did not have jurisdiction to consider an application for the eviction of a dismissed employee since the house was a benefit from the employment relationship. The matter had to be referred to CMAC for conciliation. In Swaziland Government v Sithembile Mhlanga & others IC Case 163/2009, the Industrial Court dismissed an urgent application for the eviction of employees who were resisting transfer to other duty stations, after finding that there were no reasons for urgency. In such circumstances, the matter may be referred to CMAC for conciliation. Where an employer’s property has been damaged or lost due to the fault or neglect of the employee, the employer may recover the loss through deductions to the employee’s salary, provided the employee consents in writing and the monthly deductions when combined with other deductions do not exceed half of the employee’s monthly salary (see Section 57 of the Employment Act, 1980). Where the employee refuses such consent, the employer may report the dispute to CMAC. Money and property stolen from the employer may also be recovered in this way even after the employee’s services have been terminated. In P.Ramuntu Freight Services v F. Hlatshwako IC Case 366/2005, the employee had been awarded payment for unpaid wages. In the rescission application against that order, the employer inter alia, made a claim for the setting off of the amount awarded for the unpaid wages with the amount allegedly misappropriated by the employee. The Industrial Court in paragraph 45 held that, the “The Employment Act prohibits the Applicant from deducting a loss it alleges it has suffered as a result of theft or misappropriation, from the Respondent’s salary. The Applicant may go to court and seek to prove and recover its loss from the Respondent, but in the meantime it must pay the Respondent’s salary as and when it falls due.” WRITTEN BY: COMMISSIONER NSINDISO THWALA.
Posted on: Fri, 04 Oct 2013 10:34:15 +0000
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