CASE NO.: LC 66/2010

IN THE LABOUR COURT OF NAMIBIA

In the matter between:

and

Delivered on:     30 November 2010

JUDGMENT

HENNING, AJ:
[1] On 11 August 2010 an arbitrator issued the following award in favour of the respondent, (the applicant before the
arbitrator).

4.	this award will be made an order of the Labour Court in terms of Section 87 (1) (b) (i),
5.	the award is final and thus binding on both parties."

The present applicant seems to have filed a notice of appeal on 31 August 2010. On 6 September 2010 it applied for a stay of the award. On 23 September 2010 the award was made an order of this Court.

"By electing not to answer the allegations made by the applicant in his founding affidavit by way of an answering affidavit, it follows that the facts raised in applicant'sfounding affidavit were not placed in dispute and should be accepted. This was in fact conceded by Mr Marcus."

"When you get a letter from me in the hand of one of my secretaries, you can reckon that I didn't have a minute to spare; when you get one in my own, that I did have oneminute! For let me tell you I have never in my life been more inundated with briefs and trials, and in a heat-wave at that, in the most oppressive time of the year. But I must put up with it."
Hamilton refers to a letter written by a barrister to a friend in 1793. In reads:

"Lincoln's Inn November 22, 1793

Dear Dumont,

You would perhaps set some value on this letter, if you knew how many things I have to do at the moment I write it. And what excuses I must make tomorrow to some stupid attorney for having devoted to you the time which I ought to employ upon an appeal in Chancery."
The art of legal practice is in the words of Cicero to put up with pressure, and to perform within the rules, not to ignore them. It seems to have become a fashion to disregard procedural stipulations and to rely on condonation as an entitlement, even worse, to equate  an apology with condonation.     If legal practitioners are so driven by professional egoism and/or financial rapacity that they neglect briefs such practitioners and their clients will incur misfortune. In the circumstances the appearance of counsel for the respondent is held to be irregular.

[3]    The relief sought by the applicant reads:

"[1.1] That the award by the arbitrator Philip Mwandingi made on 11 August 2010 in case number CRWK 767-09 be stayed pending finalization of the appeal."
Application has now been made to add the following to the relief:
"[1.2] That the order by the Labour Court, the award in 1.1 above having become an order of the honourable court upon filing on 23 September 2010, be stayed pending the finalization of the appeal."

[5] The procedure prescribed by the Labour Act, 11 of 2007 ("the Act") relevant to this issue will now be referred to.
[6] Section 89 (1) of the Labour Act, 11 of 2007 ("Act") provides:
"A party to a dispute may appeal to the Labour Court against an arbitrator's award made in terms of section 86.--

Section 89 (2) states:

"A party to a dispute who wishes to appeal against an arbitrator's award in terms of subsection (1) must note an appeal in accordance with the Rules of the High Court, within 30 days after the award being served on the party."
In terms of section 89 (6) when a appeal is noted, the appeal

"(a)   operates to suspend any part of the award that is adverse to the interest of an employee; and
(b)     does not operate to suspend any part of the award that is adverse to the interest of an employer."
The effect of section 89 (6) is qualified by section 89 (7) which reads:
"An employer against whom an adverse award has been made may apply to the Labour Court for an order varying the effect of subsection (6), and the Court may make an appropriate order".

In addition section 89 (9) (a) states:

"The Labour Court may -

(a)     order  that   all   or  any  part   of the   award   be suspended;"

In terms of section 87 (1) (b) (i) an arbitration award
"(b)   becomes an order of the Labour Court on filing of the award in the Court by -

(i)     any party affected by the award."

[7] On a purposive interpretation of the Act, it appears that the application is not dependent on the proposed prayer [1.2]. The structure of the Act indicates that this Court has jurisdiction to entertain an appeal.

Section 89 (1), (2), and (3).

Upon the noting of an appeal a suspension follows if the award is against the employee. To obtain the same position, the employer has to apply to this Court and comply with onerous conditions.

Section 89 (6) and (9) (a).

The above-mentioned procedure is not dependent on the filing of the award. The filing of the award is aimed at elevating it into an order of this Court, which seems to have as its purpose expediting enforcement, particularly where there is no appeal pending. In view of the consideration mentioned in paragraph 4 above, the additional relief referred to in paragraph 3 above is not granted.
[8] On the issue of the stay of the award, reference must be made to the following statements in the founding affidavit deposed to on behalf of the applicant.
"The respondent had resigned on 16 October 2009, with immediate effect. The complaint was lodged on 19 April 2010 only, after the expiry of a period of six months. This issue was not raised at the arbitration proceedings but even so, I am advised and submit to the honourable court that the arbitrator was precluded from dealing with the matter."

And:

"As stated above, the complaint entails a dismissal and was not lodged within six months. Even though this issue was not raised at the arbitration proceedings, the arbitrator should not have heard the matter."
As mentioned earlier, there was no response to these statements which now stand uncontested.

[9[    Section 86 (2) provides:

"(2)   A party may refer a dispute in terms of subsection (1) only-
1.	within six months after the date of dismissal, if the dispute concerns a dismissal, or
within one year after the dispute arising, in any other case."

"amounted to an unfair labour practice."

As indicated above, no relief flowed from this.

[11]   Section 89 (8) reads:

"(8) When considering an application in terms of subsection (7), the Labour Court must -
(a)	consider any irreparable harm that would result to the employee and employer respectively if the award, or any part of it, were suspended, or were not suspended;
(b)	if the balance of irreparable harm favours neither the employer nor employee conclusively, determine the matter in favour of the employee."
On the basis of the applicability of this section, the applicant relied on the following uncontested facts.
"17. In the investigation report, on page 4, it was found that the respondent does part time fashion designing and earns money from clothes she sells. These facts were not disclosed by the respondent to the arbitrator. These facts had to be disclosed as the respondent had to lay a foundation and present facts for the calculation of a proper award. Although this investigation report was available to the respondent and her legal representatives, nothing was stated to refute this fact. The income so earned can therefore sustain the respondent pending the appeal.
18. The respondent has previously been found to be dishonest. She was previously found guilty of forgery and uttering. She also owed the applicant N$ 14 915.94 at the time of the internal investigation. She is not a person of means and has no immovable property or investments.

20. It is submitted that the respondent will not be able to repay the amount of the award once the appeal succeeds.
21. The applicant will place the funds of the respondent in a separate investment account for the benefit of the respondent pending finalization of the appeal.
22. If the respondent is reinstated pending finalization of this appeal, the applicant will have to suspend the respondent again and proceed with the disciplinary hearing on the charges. The charges will not go away. This will be costly and relate to duplication in procedure which can be avoided if matters are held in abeyance pending finalization of the appeal. Once the appeal succeeds, all the steps taken relating to the disciplinary hearing and the costs involved will be wasted.
23. The applicant will have to deal with a further anomaly to allow a person facing such serious charges into a position of trust where she deals with cash money in automatic teller machines. It is most harmful for the applicant to have its workforce see such an irresponsible action."

"In a case such as the present one where the applicant (now respondent) tendered his resignation but thereafter alleged that, in substance, he was constructively dismissed, the following three-stage enquiry arises:

However, even if the court finds that constructive dismissal took place, such finding does not necessarily mean that the dismissal was unfair.
This is so because constructive dismissal is treated in the same way as any other dismissal. This then gives rise to the third stage of the enquiry, to wit:

It does not seem as if the arbitrator applied the three-stage -enquiry.

[14] In prayer 1.1 referred to in paragraph 1 above, the case number is wrongly reflected as CRWK 767/2009, it should be 303/2010. It will be corrected in the order.

It is ordered as follows:

2. The applicant shall place the amount of N$67 324.00 in an investment account which amount plus interest would become payable to the respondent should the appeal be dismissed.

HENNING, AJ

instructed by Koep & Partners

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