Conditions
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Duties of the Arbitrator
Section 137 (1) of the Labour Act, 2007 which came into operation on 1 November 2008, give the power to issue a code of ethics for conciliators and arbitrators. To some extend �ethics� will dictate the professional conduct of conciliators and arbitrators but what is more important is a clear crisp guideline on their duties.
Art 12(1)(a) of the Namibian Constitution requires that arbitrators must conduct a fair hearing and they must be competent, independent and impartial. A hearing can only be fair if it conforms to the Rules of Natural Justice, which principles are not new to Namibians as disciplinary action has to be procedural fair, as statutory requirements since 1992.
�Competent� and �independent� conduct appears to be more of a challenge to understand. The Labour Court judgment by Muller, J in Roads Contractor Company v Nambahu and Others [case number 97/2009] gave a guideline and confirmed the expectations a reasonable person has when appearing in a tribunal (Section 86 of the Labour Act arbitration, which arbitration is established in terms of the Namibian Constitution [Section 85(1) of the Labour Act].
The following duties are summarised in line with the judgment:
The duties of the arbitrator are:
- To be independent, impartial and competent.
- Not to mishandle the matter in such a manner that it is likely to result to some substantial miscarriage of justice;
- Not to act in a way that is contrary to public policy, or appears to be unfair;
- To be vigilant to ensure fairness to both sides (all parties);
- Not to rely on personal experience and knowledge to such an extent that he might be considered as partial or over stepping the boundaries of being independent;
- Not to prejudge or display preconceived ideas. Never to give indication how the arbiter feels about the evidence or how he/she may decide;
- Must evaluate the evidence only at end of the matter � be cautious that no perception of partiality is created or that any party will not receive a fair hearing;
- Not to intervene in evidence by cross-examination of a witness � refrain from questions unless it is to provide assistance or clarification � not active questioner.
- Allow cross-examination to continue without stopping or interfering with it;
- Must have a thorough knowledge of the provisions of the Labour Act and its Rules;
- Allow a party to present evidence to prove its case or counter allegations from the other side
- Confine him/herself to the issues in dispute or particulars of complaint;
- Not to make up his mind until after the submission of closing arguments;
- To direct the procedure in such a manner that there is no doubt or perception of impartiality or neutrality on the side of the arbitrator;
- To properly inform the parties that they understand the proceedings and how it will be conducted;
Conciliation & Arbitration
It seems that the process and outcomes of the conciliation and arbitration dispute resolution process in terms of the Labour Act, 2007 are not accepted and properly understood by a large number of person, including employers and employees alike.
The Labour Court of Namibia has also dealt with a significant number of reviews and appeals which were filed and noted when, mostly employers, are not satisfied with the outcome.
There is also indicators that the officials responsible for implementing and complying with the Labour Act and the rules and regulations do not fully understand the interpretation of statutes and their subject understanding of fairness and rule of law compliance at times, seems to influence their decision making process.
There was, however a significant development since the Act was implemented on 1 November 2008, which must be appreciated and one can hope that the same development continues the next three years.
The apparent lack of competent based legal training, the lack of available resources (handbooks and research material) and the desire to exclude legal practitioners from the process, in my mind, needs to be addressed. At times it seems there are signs that certain individuals depart from a personal vendetta approach, which is high unethical and unprofessional. Such conduct is visible on all involved, including legal practitioners.
The level of labour law compliance and dispute resolution will only develop to a higher level if the existing culture changes, research methods and available material increase.
Thus we will present a Labour Law Update workshop seminar at the end of August 2011 explaining the latest Labour Court decisions, reflect on arbitration and conciliation andrefersh teh principles of a fair disciplinary process.
Variation of the Labour Act - Hospitality and Tourism Industry
In terms of section 139(3)(d) and 139(8) of the Labour Act, 2007 the Minister of Labour & Social Welfare varied the under mentioned sections of the Labour Act on 24 February 2011 for the hospitality and tourism industry:
Section 8,
Section 18(4)(c);
Section 20(1)
Section 20(3)
Section 21(2)(b)
Section 22(2)(b)
Section 28(4)(a) & (b)
Section 28 (4A)
Section 28 (4B)
Overview Labour Court Decisions 2010-2011
The cases were summarised to extract information relevant to employers. To have a complete understanding of the case law the original judgment should be studied.
Limbo v Ministry of Labour
10 February 2010
Swanepoel A.J.
Public Service employee’s employment on probation being terminated by notice that employee would not receive permanent appointment. Employee drove vehicle of employer under the influence of liquor and cause accident resulting in damages and several other charges related to the driving of the vehicle without permission.
Public service act provides that if employee on probation is guilty of serious misconduct, employment can be terminated without hearing, however employee must be given opportunity to reflect on what happened, through completing a performance report, and should have been advised that employer contemplating to terminate employment.
A valid and fair reason for dismissal is founded on facts, conduct and circumstances which, independently from the procedure followed, make continuation of the employment relationship impossible, it would be a travesty of justice to compel the employer to reinstate or reemploy the employee.
The Peace Trust v Beukes
22 February 2010
Damaseb, JP.
Dismissed employee failed or refused to keep politics out of her responsibilities and her husband kept interfering in the employer’s activities. Employee was incompetent and insubordinate and pursued private business interests which impacted on her performance of her official duties despite being asked to improve and refrain from doing so. Employee undermined employer’s interests.
At disciplinary hearing employee and her husband disrupted the proceedings to such an extent it could not be completed and the employee was dismissed without having a hearing. The conduct of the employee made the holding of an inquiry impossible by demanding the inquiry should be conducted on her terms – it would have served no productive purpose to pursue a disciplinary hearing against employee. Court order that employee is dismissed and overturned the decision of DLC that dismissal was unfair.
Ondjava Construction CC & Others v H.A.W. Retailers
8 March 2010
Maritz JA, Chomba AJA, Langa AJA
Non-compliance with Court Rules – shown disregard for the consequences of rules. Appeal having lapsed there is no appeal before court – condonation would have been refused if applied for due to history of appellant’s frequent disregard of the Court Rules. Disregard of Rules might result in that a matter is not before Court and might prejudice any application for non-compliance.
Bosch v Stroh
12 March 2010
Parker J
Discussions by chairperson with one party or one party’s representative should not take place - it is not the actual bias that is the issue, but the likehood of bias. It is the reasonable suspicion on the part of a reasonable litigant that the chairperson, for whatever reason, is not or would not be impartial that matters. If the chairperson discusses the case with one party in the absence of the other party, it is good reason for chairperson to recuse him/herself – because whatever ruling the chairperson gives, it will have no judicial credibility and legitimacy. It is undesirable for a legal practitioner to act as counsel in a case in which he/she knows that he /she is likely to give evidence as a witness unless the evidence is purely formal. But is must be remembered that a legal practitioner is a person appointed by another to be in the place of such person – it is undesirable but not unlawful. If legal practitioner appears in court for client, and client is absent, it would be wrong to regard the party to be absent.
Shoprite Namibia v Faustino Paulo & Another
26 March 2010
Hoff J
Further affidavits in the Labour Court may be filed on application to the Court and the Court having discretion – allowing party to make full representation of its case.
Juristic person must provide a resolution to bring/file matter and the nature of the matter and must specify who is appointed to sign/act and depose of an affidavit on behalf of the juristic person – and must be valid in terms of the majority of the directors. The ratio being that such juristic person cannot avoid costs in future. Such a procedural defect can be rectified by the party.
An urgent application file 3 days before the end of a 30 days period – party must explain what was done in the 27 days why the application was not filed earlier and therefore not a self created urgency. It is acceptable to seek specific counsel with the skills to consult, contributing to the delay and party must show why substantial redress at hearing is due course would not be reasonable.
Staying of arbitration award it must be shown, not in isolation but they interact, that:
Right is prima facie established though open to some doubt
Well grounded apprehension of irreparable harm
Balance of convenience favours granting of staying
No other satisfactory remedy
Prospects of success of appeal
Old Mutual v Symington
27 April 2010
Strydom AJA, Mtambanengwe AJA, Damaseb AJA
Employee took action in High Court claimed bonus which bonus accrued during employment period but became payable only after employee resigned and in terms of policies was not due and payable – while employer informed ex-employee by letter that he is entitled to bonus and then later declined to pay such bonus, claiming error on employers side.
Appeal Court rejected that payment of bonus was contractual claim based letter offered and accepted.
Bonus is part of remuneration and must be paid at end of period it accrues, if employee resigns after it accrued, such remuneration was already due and employee is entitled to be paid because he had done the work and performance to make the targets to get that remuneration and a policy to deny bonus payment if the employee resigns would be to deprive the employee of remuneration, even if the bonus payment is in the discretionary power of the executive management
Namibia Breweries v Kaeka & Another
28 May 2010
Van Niekerk J
Application for staying must be brought duly and promptly after becoming aware of the order. Date for payment was 27 April and application filed on 28 April after papers were signed on 27 April. Application for late filing was also submitted.
By the time the application for staying is filed the appeal should be noted as requirement for the application to stay. The prospects of success on appeal should also be considered during the application for condonation for late filing of appeal.
Condonation for late filing of appeal against a decision of the DLC must be filed with the DLC and not the Labour Court.
Edgars Stores v Olivier & Another
18 June 2010
Parker J
Appeal against arbitration award. The Namibian Constitution guarantees the right to a fair trial at the arbitration proceedings. If the discretion at the arbitration proceedings has been exercised on judicial grounds and for sound reasons that are without bias or caprice or the application of a wrong principle the Labour Court will be very slow to interfere and substitute its own decision. The appellant must show that the arbitration award is wrong and that the decision ought to have been the other way.
Employees regularly participated in “assault, horseplay, manhandling fracas” and it was a way of life. Employer was aware and tolerated it. On one occasion two employees were charged and one dismissed because of repeated conduct/ severe participation by him. Court found that to punish one with dismissal and the other not – under the circumstances was unfair in law.
Before dismissal is issued there must be evidence that the employer/employee relationship has broken down irretrievably.
Reinstatement must be such that it does not prejudice any other employee who might have been put in the position, particularly since the unfair dismissal was two years ago and Court interfered to read that reinstatement must be in a comparable (not in position she had before) and two years back-pay reduced to six months because employees conduct contributed to her dismissal.
Jansen van Rensburg v Sefofane Air Charters
8 July 2010
Geier AJ
Urgent application must be acted with reasonable promptitude.
Labour Court has power to interfered in internal disciplinary proceedings should a miscarriage of justice otherwise occur – or where grave injustice may otherwise result or where justice might not by other means be obtained.
Employee subjected to disciplinary hearing applied for Court intervention to permit that a legal practitioner be permitted to assist and represent employee at pending disciplinary hearing.
At internal proceedings there is provision for appeal and thereafter the conciliation and arbitration process – which is available to employee.
No evidence of injustice and even so, other avenues in Labour Act are still available to him. Court did not intervene
Pinks Family Outfitters v Hendricks
29 June 2010
Swanepoel J
Appeal against 24 months compensation awarded to unfairly dismissed employee.
The burden to prove the monetary value (compensation) for losses the employee would have received had she not been unfairly dismissed is on the dismissed, and the dismissed employee has a duty to mitigate damages and employer to dispute or contest such evidence.
The matter of compensation is that the Court virtually ponders the imponderable by scanning the uncertain future. It is a judicial discretion and includes all questions as to what is right, just equitable and reasonable. In considering what is reasonable, not only the interests of the employee but also the interests of the employer must be taken into account.
15 months’ salary awarded as compensation when there was evidence that in 12 months no alternative employment was secured by four applications.
Comalie v The Ministry of Agriculture, Water and Rural Development
16 August 2010
Van Niekerk J
Employment of public servant terminated due to absence without permission for more than 30 days in terms of the Public Services Act.
Medical certificate book off employee indefinitely without mention the decease to the effect that employee may stay away until he feels better – such certificate is open to abuse and any employer would be entitled to reject it. Employee only returned to doctor when he realised that he was in trouble at work due to his absence where after doctor merely requested that employee be excused from work.
Nangolo v Metropolitan Namibia
31 August 2010
Hoff J
Where a litigant acts in a representative capacity he/she must have the requisite authority to act in such capacity.
If authority to act is challenged, the party who is challenged must refute the evidence that substantively disputes the authority. An unfounded practice to simply boldly deny authority will not be entertained by the Courts.
Old Mutual Namibia v Wallenstein
10 September 2010
Muller J
If parties agree on the issues the Court must decide and the one would stop the proceedings, then the Court cannot proceed further if it concluded in line with the agreement.
Woermann Brock v Shaanika & Others
24 September 2010
Damaseb JP
If a wrong decision is made during the district labour court proceedings while performing a judicial function the appeal process is the proper procedure to follow by the party objecting thereto.
If there was a miscarriage of justice the Labour Court may intervene, which will consider the impact on the continuation of the proceedings in decision whether or not to intervene.
It is a gross irregularity if the chairperson corrects the details of complainants during the judicial proceedings without ruling on the objection raised by the respondent and the DLC proceedings can be set aside on review and court ruled that the matter be referred back to the lower court to be adjudicated by a different magistrate due to gross irregularity because matter was not yet heard on merits in lower court and chairperson compromised her role as neutral chairperson of fact and law due to her conduct.
Municipality of Windhoek v Esau
29 September 2010
Henning AJ
Dismissed employee succeeded by claiming unilateral change of employment conditions and was awarded six months’ salary.
A party seeking rescission of judgment must show absence of wilful default or gross negligence and prima facie show some prospects of success on the merits.
Appeal lapsed after 90 days – application for condonation and reinstatement of appeal not granted because it appears that the appeal was grossly neglected by both applicant’s in-house legal officer and its legal practitioners and not much pressure was applied to activate the Labour Commissioner to produce the complete record.
Van Wyk v Gowaseb
29 September 2010
Shivute J
Dismissed employee has onus of proof to show that employee was in fat dismissed, when that onus is discharged, then the burden of proof moves to the employer to show that the dismissal was fair.
Employee went to hospital and thereafter failed to communicate her whereabouts to the employer. Employee failed to render services and was therefore in breach of contract – absented herself from duty without permission on the erroneous assumption that she was dismissed – she was not dismissed.
Nedbank Namibia v Louw
30 November 2010
Henning AJ
If no answering affidavit in motion proceedings is filed the allegations made by applicant in founding affidavit are not placed in dispute and should be accepted.
Apology for not filing an application for condonation when heads of argument is filed out of time is expressed good manners but it is not the basis for condonation. Workload by legal practitioner is not an excuse. The art of legal practice is to put up with pressure and to perform within the rules, not to ignore them.
Complaint of unfair dismissal was referred after six months since termination date. Award issued however it was ultra vires as the authority there was no authority and the award became a nullity, even though the time period was not raised at the arbitration proceedings – nihilo nihil fit (out of nothing flows nothing).
Arbitration award stayed pending outcome of appeal – compensation award to be placed in trust which would become payable to employee should the appeal be dismissed.
Labour Consulting Group cc v Willers & another
4 November 2010
Parker J
Applicant’s identity as juristic person not clearly established in the application. Matter dismissed on that ground.
Citation of parties is important to identify the party correctly.
Tsoeu v Senior Real Estates cc
1 December 2010
Shivute CJ, Strydom AJA, Mtambenengwe AJA
An order prohibiting a litigant to proceed with litigation until an order of costs against that litigant is satisfied will only be given in exceptional circumstances.
Alexander Forbes Group v Ahrens
10 January 2011
Parker J
Labour Court has jurisdiction to hear applications pertaining to interim relief in the field of unlawful competition and protection of one’s right to confidential information regarding one’s business and goodwill contained in restraint of trade agreement.
An interim urgent application for the enforcement of a restraint of trade in a contract of employment, it must be averted that:
Applicant requires to be protected in the interim from the loss of business and income;
Which would result from continuing infringements on the part of respondent;
The right of the subject matter must be clear or prima facie established, though open to doubt;
There is a well grounded apprehension of irreparable harm;
Balance of convenience favours the granting of interim relief;
Applicant has no other satisfactory remedy.
In interpreting a statutory provision one must always consider the lexical (or where applicable the descriptive) meaning of each word used in the provision and above all, the syntax and the phrase, clause or sentence under consideration and also take into account, where it is necessary to do so, the long title of the statute in order to arrive at the correct meaning of the provisions in questions.
The Rule of Practice that a new matter in a replying affidavit may not be permitted should not be blindly and mechanically, without due regard to the facts and circumstances of the particular case.
The variations are exemptions, as varied, from the normal provisions of those sections applicable for one year from 24 February 2011 to the employer and employees in the hospitality and tourism industry.
Compliance orders issued by Labour Inspectors
Consequences and procedures
Powers & Authorities if Labour Inspectors
Labour Inspectors received a wide range of powers in the Labour Act. To some measure, it seems that a duplication of “authority” was created among the office of the Labour Commissioner on the one hand and the Labour Inspectors (who falls outside the Office of the Labour Commissioner) on the other hand.
The Office of the Labour Commissioner is responsible to resolve complaints by parties, which is in most instances, the employees. The employee formally reports a dispute (complaint) and applies for referral to conciliation or arbitration.
However, in terms of section 125 (2)(i) labour inspectors are authorised to assist any person in any application, referral or complaint under the Act and settling any application, referral or complaint under this Act. The problem comes in when the complaint relates to an alleged non-compliance with the Act, in which instances when the labour inspector has reasonable grounds to believe (not proven, not following a fair procedure) he/she may issue a compliance order to compel the employer rectify or comply with the Act or to attend a meeting or to answer questions, and if the employer does not comply, the employer may be guilty of an offence.
It seems that in some instances (arbitrary) the labour inspectors elected not to assist employees to submit and prepare applications for dispute referrals to the Labour Commissioner, but rather order the employer to attend a meeting (without reasonable notice) and then to issue a compliance order – to fast track the dispute resolution process, it seems, and without involving the arbiters or the Office of the Labour Commissioner.
In terms of section 125(2)(b) a labour inspector may order, in the prescribed form, any individual to appear at a specified date, time and place and to question that individual. If the person refuses or fails to answer to the best of that individual’s ability any question put by a labour inspector in terms of section 125(2)(a)(vi) or 125 (2)(b), it is an offence.
The Act does not prescribe a reasonable notice period, nor that the labour inspector need to disclose the grounds on which he/she has a reasonable believe and neither that the actual details of the complaint or allegations be disclosed to the employer. This is similar to an employer notifying the employee of a hearing without mentioning the charge, allegations or any adherence to the principle of fairness.
If a person is “instructed” to attend a meeting, the meeting must be attended. Objection should be raised, requesting particulars of the allegations, facts and enable the person instructed to answer to seek advice and to prepare. This steps is usually successful as it is a Constitutional right not to be forced to testify (admit anything) against yourself and section 132(3) of the Act provides that a manager will be liable for contraventions by the employer, which means the manager may refuse to answer until he had opportunity to seek legal advice pertaining to making statements which might implicate him/herself.
An appeal or review application disputing the correctness of an arbitration award does not stop the execution of the award if the award is in favour of the employee. However, an appeal against a compliance order does stop the compliance order. The appeal must be made to the Labour Court and as the appeal or review cannot be successfully done without a record of the reasons or fact on which the labour inspector based his decision, the inspector should be requested, preferably prior to the lodging the appeal, to provide such minutes or reasons.
To have a complete understanding of the powers of labour inspectors, the provisions in the Labour Act should be considered:
Section 123
For the purposes of this Part -
(a) “employer” includes any person-
(i) the employer has contracted to perform work on its behalf; and
(ii) who is in charge of any premises where employees work;
(b) “object” includes any article or substance.
Powers of inspector
Section 125
(1) In so far as this section authorises the interference with a person`s right to privacy and the privacy of that person`s home as guaranteed by Article 13 of the Constitution, this section is enacted on the authority of subarticle (2) of that Article.
(2) For the purposes of the administration of this Act, a labour inspector may, subject to subsection (3), -
(a) at any reasonable time enter any premises and
(i) direct that the premises or any part of it must not be disturbed as long as it is reasonably necessary to search the premises;
(ii) search for and examine any book, document or object relevant to the administration of this Act;
(iii) seize, make a copy of any such book, document or object;
(iv) take a sample of the atmosphere or of any object found;
(v) take measurements, readings, recordings or photographs; and
(vi) question any individual on the premises;
(b) order, in the prescribed form, any individual to appear at a specified date, time and place and to question that individual;
(c) require any person who has control over any book, document or object to produce the book, document or object and explain any entry in the book or document or on the object;
(d) examine, make a copy or seize any book, document or object produced in terms of paragraph (c);
(e) take a sample of any object produced in terms of paragraph (c);
(f) require an employer to pay an employee any remuneration owed;
(g) enforce arbitration awards made under this Act;
(h) give directions on where notices required in terms of this Act are to be posted;
(i) assist any person in-
(i) any application, referral or complaint under this Act;
(ii) settling any application, referral or complaint under this Act.
(j) require a member of the Namibian Police Force to assist in the exercise of the powers referred to in this subsection; and
(k) request any individual to assist as an interpreter or otherwise in the exercise of the powers referred to in this subsection.
(3) A labour inspector may enter premises and conduct a search in terms of subsection (l)(a) only if it is done in accordance with Chapter 2 of the Criminal Procedure Act, 1977 (Act 51 of 1977) and as if -
(a) a labour inspector is a police official; and
(b) any book, document or object is concerned with the commission of an offence.
(4) A labour inspector must issue a receipt for any book, document or object seized in terms of this section.
(5) If asked, a labour inspector must produce the certificate referred to in section 124(2).
(6) Any member of the Namibian Police Force required to assist in terms of subsection (2), or any individual requested to assist in terms of subsection (2), may accompany the labour inspector as if that member or individual were a labour inspector.
(7) Any individual in charge of any premises on which individuals are employed must provide facilities as may be reasonably required in order for a labour inspector to exercise the powers referred to in subsection (2).
Power to issue compliance order
Section 126
(1) An inspector who has reasonable grounds to believe that an employer has not complied with a provision of this Act may issue a compliance order in the prescribed form.
(2) An employer must comply with an order issued in terms of subsection (1) unless the employer appeals to the Labour Court in terms of subsection (3).
(3) An employer may appeal against a compliance order to the Labour Court within 30 days after receiving it.
Offences in relation to inspectors
Section 127
(1) Any person who does any of the following acts commits an offence:
(a) hindering or obstructing a labour inspector in the performance of the inspector’s functions or the exercise of the inspector’s powers;
(b) refusing or failing to answer to the best of that individual’s ability any question put by a labour inspector in terms of section 125(2)(a)(vi) or 125 (2)(b);
(c) intentionally furnishing false and misleading information to a labour inspector;
(d) refusing or failing to comply to the best of that individual’s ability with any compliance order issued in terms of section 126; or
(e) falsely claiming to be a labour inspector.
(2) A person convicted of an offence contemplated in subsection (1) is liable to a fine not exceeding N$ 10 000 or to imprisonment for a period not exceeding two years or to both a fine and imprisonment.
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