Gabriel v Cashbuild Namibia (Pty) Ltd and Others (HC-NLD-LAB-APP-AAA-2022/00002) [2024] NAHCNLD 3 (20 February 2024)

Case Title:

Paulus Gabriel Applicant

and

Cashbuild Namibia (Pty) Ltd 1^st Respondent

Labour Commissioner 2^nd Respondent

Martha Shipushu 3^rd Respondent

Case No:

HC-NLD-LAB-APP-AAA-2022/00002

Division of Court:

High Court, Northern Local Division

Heard on: 28 July 2023

Delivered: 20 February 2024

Heard before: Honourable Mr. Justice Munsu

Neutral citation: Gabriel v Cashbuild Namibia (Pty) Ltd (HC-NLD-LAB-APP-AAA-2022/00002) [2024] NALCNLD 03 (20 February 2024)

ORDER

1. The Appellant’s application for condonation for the late noting of the appeal (rule 17(4)) is granted.

2. The appellant’s application for condonation for failure to prosecute the appeal within 90 days (rule 17(25)) is refused.

3. The application for reinstatement is refused.

4. There is no order as to costs.

5. The matter is removed from the roll: Case finalised.

MUNSU J:

Introduction

[1] The appellant, Mr Paulus Gabriel appeals against the arbitration award handed down on 25 February 2022 by the third respondent (the arbitrator). The appeal is opposed by the first respondent, Cashbuild Namibia (Pty) Ltd. I am indebted to counsel for their helpful submissions.

Background

[2] The appellant was employed as an assistant manager by Cashbuild Namibia (Pty) Ltd. During May 2021, the appellant was served with a notice of suspension and subsequently, a notice of disciplinary hearing. He appeared before a disciplinary hearing in the month of June 2021 and was found guilty of fraud and was dismissed.

[3] The appellant lodged an appeal internally against his dismissal, however, on 30 August 2021, his dismissal was upheld. On 07 September 2021, the appellant lodged a complaint of unfair dismissal with the second defendant (the Labour Commissioner). The matter proceeded to arbitration where, the appellant was represented by Mr Lukas Matias, a branch organiser for MANWU.

[4] On 25 February 2022, the arbitrator handed down the award in terms whereof she dismissed the appellant’s claim and confirmed the dismissal.

[5] Aggrieved by the arbitrator’s ruling, the appellant filed this appeal in terms of s 89 of the Labour Act, 2007. He seeks reinstatement and compensation.

Condonation application

[6] The appeal was filed out of time. To this end, the appellant filed an application for condonation. Furthermore, in terms of the rules, the appellant was supposed to prosecute his appeal within 90 days. He did not do so, and filed a condonation application in this regard. Thus, the first condonation application relates to the late noting of the appeal, while the second application deals with the failure to prosecute the appeal in time as well as reinstatement of the appeal.

[7] The first respondent made it clear that they were only opposing the second application. Nevertheless, the first respondent did not file answering papers and merely chose to argue the matter on the appellant’s papers.

[8] The condonation application and the merits of the appeal were argued at the same time.

The condonation application

[9] The appellant claims that the award only came to his knowledge on 07 March 2022, and on the same day he approached this court for assistance. He explains that he was not assisted in noting an appeal against the award, but only in registering the award (under case no: HC-NLD-LAB-AA-2022/00018).

[10] The appellant went on to state that the mistake was only rectified in June 2022 after he engaged counsel, who promptly registered the appeal on 17 June 2022. This was followed by an application for condonation. However, the appellant’s legal practitioner filed a wrong affidavit not related to the matter. The appellant avers that the mistake was only rectified on 06 October 2022 after counsel for the first respondent pointed it out.

[11] The appellant states that the mistake was genuine and same was cured without delay. The appellant had until September 2022 to prosecute the appeal. He failed to do so as he only requested a date for hearing in March 2023. Thus the appeal lapsed.

[12] In his second application for condonation, the appellant states that the first respondent had in September 2022 applied to the arbitrator to clarify paragraph [75] of the award, and the parties were awaiting response. He intimates this as the reason for not prosecuting the appeal in time.

[13] As regards the prospects of success, the appellant claims that the arbitrator erred when she found that the dismissal of the appellant was substantively fair. He states that the first respondent did not prove the charge of fraud or dishonest against the appellant. The appellant avers that for the dismissal to be fair, proof of violation of a rule in respect of the charge preferred must be established.

[14] The appellant went on to state that the arbitrator failed to assess the evidence that was presented and that the award lacked the reasoning that informed the outcome.

[15] It was pointed out that:

1. The appellant’s evidence was not contradicted, and that a possibility existed that someone else used his password.

2. There were computer errors, and as part of the management, the appellant had the power to make adjustments to the system.

3. The adjustments in respect of the locks were done by one Marvin and not the appellant.

4. It was not written in the company code that where the amount exceeded N$ 1000, it had to be reported to the divisional manager.

5. The divisional manager was not sure of the exact losses.

[16] Mr Lochner for the first respondent emphasised the importance of adhering to the rules of court. He argued that there is no explanation why the appellant did not prosecute the appeal in time. Counsel went on to submit that the clarity sought from the arbitrator by the first respondent did not absolve the appellant from prosecuting the appeal. Counsel argued that, it was clear that the appellant blames his legal practitioner for disregarding or for being ignorant of the rules of court. He further submitted that the justice system should be protected from the flagrant disregard of the rules by the parties.

[17] Regarding the prospects of success, counsel for the first respondent pointed out several grounds which support the ultimate award issued by the arbitrator. I will highlight the said grounds in my assessment.

Discussion

[18] It is trite that an applicant seeking condonation is required firstly, to provide a reasonable, acceptable, and bona fide explanation for non-compliance, and secondly, must demonstrate good prospects of success on the merits. The law requires the applicant to provide a full, detailed and accurate explanation for the entire period of the delay, including the time of the application for condonation.¹

[19] In respect of the late noting of the appeal, I have considered that the appellant approached the registrar of this court in time. Although his intention was to file an appeal, he ended up only registering the award. At the time, the appellant was unrepresented. The anomaly was rectified as soon as he instructed counsel. The appellant was candid about his mistake, and under the circumstances, I find his explanation reasonable.

[20] The reason the appellant gave for not prosecuting the appeal in time was that the first respondent, had on 19 September 2022 sought clarity from the arbitrator regarding a paragraph in the award. The appellant waited for about five to six months after the appeal lapsed to request a date for hearing.

[21] Had the appellant, who was represented at the time, believed that he had to wait for the arbitrator to respond (which response was never received), he should have applied to extend the time within which to prosecute the appeal. This did not happen. Even after the appellant requested a date for the hearing during March 2023, he waited for a further four months until July 2023 to file the application for condonation and reinstatement. There was no explanation given for the delay. Accordingly, I find the appellant’s explanation inadequate.

[22] I also assessed the appellant’s prospects of success on the merits. The appellant was duly informed of the allegations against him and the disciplinary hearing, which he attended, thus he did not complaint over the process that led to his dismissal. His bone of contention was that the first respondent did not prove that he committed fraud. The charge was that the appellant failed to adjust/report stock losses discovered through PIC counts, and instead balanced stock without fair/just reason. It was further alleged that the appellant’s negligent behaviour incurred the company losses exceeding the controlled BM level of 0.30%.

[23] The arbitrator never evaluated the evidence presented before her, nor did she explain her decision. It is hoped that she will do better in future. The question is whether the arbitrator’s conclusion, that the appellant’s dismissal was substantively fair is justified by the evidence presented.

[24] At arbitration, the appellant confirmed that, in the event he discovered an anomaly regarding the stock, necessitating an adjustment involving an amount in excess of N$ 1 000, he would have to call the divisional manager to explain how it came about and for the divisional manager to make a decision on what to do.² However, in respect of some of the questionable adjustments he is implicated, he testified that he took ‘the book’ to the store manager to make the decision for himself. When asked about the decision the store manager was supposed to make, he replied that the store manager was supposed to call the divisional manager because a huge amount of N$ 9 000 was involved. Firstly, his evidence was not confirmed by the store manager as he did not call him as a witness. Secondly, it is contrary to his own evidence and that of the divisional manager who informed the arbitrator that it was the appellant who was supposed to explain to the divisional manager.

[25] As pointed out by counsel for the first respondent, the evidence show that the appellant, upon receiving stock, he subtracted stock from the system when he was supposed to add. This was in respect to annexure G and I.³ The amount involved was about N$ 6 760. The reason he provided for doing that was because there was double stock. However, there was no evidence of ‘double stock’ as he claimed. He simply deducted stock without authorisation.

[26] Annexure J, K, L, O, P⁴ were submitted by the appellant. Stock in excess of N$ 1 000 was deducted. According to the appellant, he is not the one that made adjustments on the system because at the time of printing the documents, he had already knocked off. However, the documents show the adjustment ID, the date and time the adjustment was made, the item ID and description, as well as the user. The documents indicates that the adjustments were made at the time he was still at work before he knocked off.

[27] The appellant, in his defence suggested that someone else might have used his password. Yet, he acknowledged that in terms of the code of conduct, a password is not to be disclosed to anyone and that he never shared his password. There was no evidence of how anyone else may have gotten their hands on his password.

[28] The first respondent was only required to establish a case on a balance of probabilities. There were misrepresentations made by the appellant and there was evidence of stock losses of N$ 70 000 which was incurred by the first respondent. The stock losses exceeded the allowable maximum level of 0.30%. I am not convinced that the appellant enjoys prospects of success on the merits. As a result, the second application for condonation stands to be refused.

Costs

[29] The parties agree that each party is to pay its own costs.

The order

[30] In the result, the following order is made.

1. The Appellant’s application for condonation for the late noting of the appeal (rule 17(4)) is granted.

2. The appellant’s application for condonation for failure to prosecute the appeal within 90 days (rule 17(25)) is refused.

3. The application for reinstatement is refused.

4. There is no order as to costs.

5. The matter is removed from the roll: Case finalised.

Note to the parties:

D MUNSU

Judge

None

Counsel:

Appellant:

Respondents:

L. Ambunda-Nashilundo

Instructed by Jacobs Amupolo Lawyers & Conveyancers

Ongwediva

L Lochner

Instructed by Greyling & Associates

Oshakati