By Bahle Gama
Limkokwing University of Creative Technology (LUCT) has rushed to court to file an urgent application to avoid paying an employee dismissed in 2023.
In her affidavit, LUCT Campus Director Tfobile Gumede said Xolile Mnisi-Sacolo who is a former employee had written to the institution demanding her salary despite being released from her duties last year.
The application seeks an order reviewing and setting aside a judgement by the Industrial Court of Appeal handed down on October 28, 2024, and substituting it with an order dismissing Mnisi-Sacolo’s application.
According to Gumede, in October 2022, LUCT instituted disciplinary proceedings against Mnisi-Sacolo on allegations of serious misconduct, and at no time was she willing to have the charges proven.
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“This I say based on the fact that every available opportunity, she would raise preliminary issues and if unsuccessful, she would approach the courts for redress,” submitted Gumede.
In 2023, to stop the hearing, Mnisi-Sacolo moved three applications, one at the Industrial Court and two at the High Court, but she was not successful in any of them.
She reportedly engaged every possible strategy to ensure the disciplinary hearing against her never commenced, and for almost a year she was drawing a salary, whilst, on the other hand, she refused to submit herself to the jurisdiction of the employer.
It was in August 2023 when the institution summarily dismissed Mnisi-Sacolo and the basis was that she did not show any willingness to be disciplined but engaged in obstructive strategy.
Mnisi-Sacolo proceeded and approached the Industrial Court for an order setting aside the letter dismissing her from employment, declaring her dismissal invalid.
LUCT opposed the application, raising a point of law of the court lacking jurisdiction based on invalidity.
The institution argued that since Mnisi-Sacolo had failed to report her dispute to CMAC, the court had no jurisdiction to hear her application.
The Industrial Court upheld Mnisi-Sacolo’s appeal, stating that it had the jurisdiction to declare any dismissal invalid.
However, the Industrial Court of Appeal referred the matter back to the Industrial Court for determination which was then in agreement that the invalid dismissal forms part of the laws and the letter was set aside.
Gumede has urged the court to review and set aside the decision of the Industrial Court, adding that the High Court should hold into account that once a dismissal has taken place, the proper cause is for a dissatisfied litigant to invoke the provisions of Part 8 of the Industrial Relations Act.
Therefore, the Industrial Court does not have jurisdiction over matters that have not followed Part 8.
“The institution is entitled to the relief of reviewing, correcting, and setting aside the judgement of the Industrial Court. The matter is important to LUCT and the juris prudence of Eswatini,” Gumede submitted.
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She told the court that the nature of the relief granted by the Industrial Court has the unintended consequence of undoing the entire dispute resolution framework established in terms of the Industrial Relations Act.
Therefore, there is no basis for such a departure which can only be through an amendment of the Act.
Gumede reiterated that the matter is urgent because Mnisi-Sacolo has already written to the institution demanding payment based on the judgement.
“There is a clear disagreement between the superior and subordinate courts in relation to the issue of invalid dismissal.
The situation causes great inconvenience to litigants, as the most important question of law remains unattended to. A clear and final judgement of the High Court will settle this issue,” she said.
She emphasised that if the institution’s application is not successful, Mnisi-Sacolo will execute and enjoy the money she is claiming.
The matter is set to return to court on Wednesday, November 6, 2024.
