Swazi Oxygen in E2m lawsuit

Andre Botha, in papers filed before the Industrial Court, has claimed that he was employed by the company as a Manager in 1996, until he was dismissed for allegedly refusing to accept a transfer.

Botha alleged that he was employed by Swazi Oxygen’s South African based parent company African Oxygen on a two-year contract.

He claimed that the initial contract expired in 1998 after which another one was proposed, but not signed.

He alleged that he continued to render his services to the company in Matsapha.

He claimed that in 2005, there were efforts to transfer him to a South African branch, but he rejected it. He alleged that he rejected the company’s transfer, because it meant that he was to enjoy fewer benefits.

"The proposed transfer did not accord with the contract of employment between the applicant and respondent, in that there reason for transfer was not a good reason as contemplated in the employment agreement, because the company said I had been in Swaziland for too long," Botha said.

He claimed that in January 2006, his services were terminated.

He claimed that Swazi Oxygen claimed that the reason he was fired, was because he had breached a contract for his refusal to accept the transfer.

He argued that if the contract amounted to a breach of contract, he should have been taken for a disciplinary hearing, which never happened.

"The termination of the applicant’s services was not only unfair and grossly unreasonable, it was also automatically unfair in that his services were terminated because the employee refused to accept a demand in respect of a matter of mutual interest between the employer and employee," he said.

He argued that he was entitled to additional notice pay, but was only paid accumulated leave pay at the basic rate instead of gross salary.

He argued that he was underpaid.

He also argued that upon termination of his services, he was entitled to an end of contract bonus, gratuity and a 13th cheque, which were not paid.

He is demanding E2 121 861.

In response, Swazi Oxygen argued that Botha’s termination of services was lawful and there was no need to institute disciplinary action against him. The company, in papers filed by Rodriguez and Associates, argued that Botha’s employment was subject to the right, prerogative and discretion of Swazi Oxygen’s parent company, African Oxygen (Afrox) to reassign him.

"The prerogative and discretion to transfer the applicant to another part of the business related to the right prerogative and secretion of the parent company Afrox and its subsidiaries.

At the time of reassignment he had occupied the post of manager of respondent’s Swaziland operations for nine years," Afrox stated in its papers.

It also claimed that Botha was consulted prior to the reassignment. It further argued that Botha was not entitled to any further amounts, because, he was paid all amounts due to him.

The matter is still pending before the Industrial Court.

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