Awene v Business & Intellectual Property Authority (HC-MD-LAB-APP-AAA 25 of 2022) [2022] NALCMD 61 (20 October 2022)

Case Title:

IMMANUEL AWENE APPELLANT

and

BUSINESS & INTELLECTUAL

PROPERTY AUTHORITY RESPONDENT

Case No:

HC-MD-LAB-APP-AAA-2022/00025

Division of Court:

LABOUR COURT (MAIN DIVISION)

Coram:

COLEMAN J

Heard:

16 SEPTEMBER 2022

Delivered:

20 OCTOBER 2022

Neutral citation: Awene v Business & Intellectual Property Authority (HC-MD-LAB-APP-AAA-2022/00025) [2022] NALCMD 61 (20 October 2022)

Order:

1. The Arbitrator’s award of 14 March 2022 is set aside in its entirety.

2. The matter is referred back to the Labour Commissioner for a de novo arbitration hearing before another arbitrator.

3. No order of costs.

4. The matter is removed from the roll and regarded as finalized.

Reasons for orders:

COLEMAN J:

[1] This is an appeal against an arbitration award made on 14 March 2022 upholding a point in limine that appellant waived his rights by not attending his disciplinary proceeding and holding appellant’s dismissal ‘…not in violation of the law’. No evidence was led.

[2] Counsel for both parties agree that the matter should be referred back to the Labour Commissioner, although for different reasons. The bone of contention is what should be made of the fact that the appellant did not attend his disciplinary proceeding. The process went on in his absence and he was dismissed.

[3] It is not advisable for a party subjected to disciplinary proceedings to simply not attend because he/she objects to an aspect of the proceedings. The best approach is to attend and raise the issues there. However, the arbitrator in this matter elected to hear the point in limine based on appellant’s election not to attend without any evidentiary base and to make findings on the merits of appellant’s dismissal. In my view that is a misdirection. The point in limine should have been treated like a special plea in a civil action and be adjudicated in the context of the bigger picture of the matter with an evidentiary basis. I do not make any finding on the merits of the arbitrator’s decision because I do not want to fetter the discretion of the new arbitrator.

[4] As a result, I make the following order:

1. The Arbitrator’s award made of 14 March 2022 is set aside in its entirety;

2. The matter is referred back to the Labour Commissioner for a de novo arbitration hearing before another arbitrator;

3. No order of costs; and

4. The matter is removed from the roll as finalized.

Judge’s signature

Note to the parties:

Coleman

Judge

Not applicable.

Counsel:

Applicant

First Respondent

N Alexander

Of Sisa Namandje & Co. Inc

Windhoek

M Kuzeeko

Of Dr Weder, Kauta & Hoveka Inc.

Windhoek