One or more of the above false statements made during the hearing on their behalf were made with the intent to deceive the Embwinda Management into bringing an end to the disciplinary enquiry.

The aforesaid amounts to dishonest conduct towards the Embwinda Management and it is thus alleged that they conducted themselves in a dishonest manner.’

[13] The disciplinary hearing against the appellants reconvened on 27 May 2019. At the conclusion, that is sometime during August 2019, of the disciplinary hearing the applicants were found guilty of both charges of misconduct (namely insubordination and dishonesty) and following a recommendation by the chairperson of the disciplinary hearing the appellants were, on 04 September 2019, dismissed from the respondent’s employment. The appellants internally unsuccessfully appealed the decision to dismiss them.

[14] On 21 January 2020, the appellants referred an unfair dismissal and unfair labour practice dispute to the office of the Labour Commissioner alleging that their dismissal was substantively unfair and they sought to be reinstated and paid the remuneration they would have received had they not been unfairly dismissed. Due to the outbreak of the COVID -19 pandemic the resolution of the dispute between the parties was delayed for a little over 12 months. The dispute was conciliated and after conciliation failed the matter proceeded to arbitration on 18 and 19 May 2021, and again on 13, 14, 15 and 16 September 2021.

[15] The arbitrator found that appellants’ dismissal was fair. She found that there was no credible evidence lead to proof that the appellants did not commit any of the charges proffered against them. She found that the fact of refusal of instruction was not an issue disputed. She further found that the appellants did not place their version to any of respondent’s witness during cross-examination. She stated that (I quote verbatim from the arbitration award):

‘(16) Proof of misconducts: there was no credible evidence was led to proof that the applicants did not commit any of the two charges preferred against them. In fact, the evidence only established that the applicants [appellants] gathered with a group of colleagues in the production office and it can be clearly seen from the CCTV footage submitted into records how the applicants [appellants] spends time with the HR manager and can be inferred that there was exchange of words and reading of documents. This fact of refusal of instruction was not an issue disputed: the applicant did not place this version to any of respondent witness during cross-examination. In this matter the cause of contention was whether the instruction from the respondent to the applicants was the reasonable one?

(17) The evidence testified by Rosina !Owo-Oas, that on 18 February 2019 she instructed repeatedly the applicants to pack cavity containers with skinless Blue Mares into boxes, however the applicants refused stating that it is the work of general workers and persisted even after the intervention of the HR Manager, Mrs Moshoeshoe reveal that there was a need for the fish to be packed and it was the duty of the applicants to further the legitimate interest of their employer. On the facts of this case it was not an unreasonable instruction to the applicants [appellants] to pack the cavity containers with skinless Blue Mares into boxes as part of the operational requirements of the organization and such instruction also form part of their the additional duties referred to in their contracts of employment (clauses 13 and 11, as the case may be) and the single task description in their job descriptions, admitted into evidence as document C1 to C19 in the document buddle which was testified by Rosina Moshoeshoe who is the HR manager. By refusing to carry out a lawful instruction the applicants made themselves guilt of disobedience and therefore the respondent was justified in instituting the disciplinary proceeding for insubordination.

(18) The next question would then be whether the refusal of such instruction was justifiable? The applicants [appellants] testified in cross-examination that these provisions of their contracts of employment are not applicable any longer after their promotion: they say with their promotion to supervisors the applicants had to be issued with new contracts. However there is no evidence that the conditions of the original contracts became amended save for the applicants new positions as supervisors and the accompanying salary adjustments, In addition to this the applicants confirmed through their first witness that the HR manager read the job profiles on the issue of single task and the contract of employment because the way they were explaining the single task from their perspective was on general task of general worker but not to the single task of a supervisor. The first witness further states under cross examination they have engaged with Fronie from 9h00 to 11h00 and she has no idea why the HR manager was explaining the single task and contract of employment maybe she was informed by Fronie that they refused to carry out the instruction. Furthermore the second witness states under evidence in chief that in the normal cause of event when there is no production the supervisor only clock in.

(19) The applicants stated that they were refused to be provided with PPE by the respondent, the applicants' credibility was placed in question and made me doubt that their version were truthful. On the issue of PPE, the applicants' [appellants] hands into records the pairs of PPE which is exhibit 5 to 9 consisting of Bracraval, socks, woolly socks, technical gloves and cotton gloves that applicants [appellants] ought to wear in order to carry the instruction of packing the fish from the cold storage, however the fifth witness testified that these items are used for these employees at strapping area because is the only area that is colder. During the witnesses testimonies they have provided different version at one point they are saying they had requested the permission to go back home in order to put on the underneath layer because some were wearing skirts although no evidence of skirt was placed on records, some witnesses testified that the they left their keys for the lockers some testified that they requested PPE and it was refused by Fronie. Some testified that there is always a person in the changing room named Boieky who is responsible to issues the employees including the applicants with PPE and he always informed to provide PPE depending on the people that are working. It was further the applicants [appellants] witnesses testimony that the company decide what type of PPE should be dressed at different area and on that particular date of 18 February 2019 the witness was provided with normal PPE as usual from the changing room where he usually get the PPE everyday he works.

(20) Therefore based on the above contradictory evidence I am convinced on that balance of probability that the respondent did not refuse to issue PPE to the applicants should they have requested it because on the exhibit submitted into records it can be clearly seen that the applicants [appellants] were wearing PPE and it was also questionable that the applicants [appellants] went to stands on their production line while they knew there was no general workers performing any task and it was not indicated what sort of dressing code they put on when they were standing at their duty station. The witnesses for applicants [appellants] further testified that the performance of the said instruction could have taken one to two hours because it was easy to be carried out, considering the facts that the applicants were not just general workers but hold the position at supervisory level they were in a better position to organise themselves based on these were wearing proper PPE for the area were the task ought to be performed_ The applicants further did not give into evidence how the environment was dangerous for them because the evidence of the respondent that the weather was at room temperature and that when packing the skinless blue mares one does not need to wear technical groves or Egoli boots was not disputed, therefore reject the applicants' version on the issue of PPE.’¹

[16] The arbitrator also found that the charge of dishonesty came about as a result of the meeting that took place on 13 March 2019 wherein the real reason of insubordination was discovered. She stated that she found it difficult not to believe the respondent’s version that the appellants misrepresented to management hence all the witness testified for the appellants indicated that they were not part of the meeting of 13 March 2019, however, they have indicated that they were aware of the said meeting and its purpose. It was not disputed that the statement was made by the applicants or by their representatives.

[17] The appellants were aggrieved by the findings of the arbitrator and hence the present appeal.

The grounds of appeal

[18] The appellants’ grounds of appeal are in summary that the appellants did not refuse a lawful instruction, the packing of cavity containers with skinless blue mares into boxes is a function for general workers not that of the appellants. The appellants did not refuse the instruction to pack the fish even if it was outside their scope of employment, rather they reminded the respondent that the function is of the general workers and in order for them [the appellants] to perform it they needed PPE ( personal protective clothing).

[19] The appellants further contend that the respondent failed to fulfil its duty by ensuring all PPE material were available to them to perform the instructions under the required safety measures. The appellants cannot compromise their health by performing a function without the required safety equipment.

[20] As regards the charge of dishonesty the appellants’ ground of appeal is that the misconduct of dishonesty was not proven against each appellant, rather the alleged conduct of by the appellants’ representatives was attributed to all the appellants.

[21] The final ground of appeal can be summarised as being that the arbitrator erred in law in the manner in which she assessed the appellants’ evidence in totality.

[22] The respondent opposition of the appeal is, in summary that the arbitrator’s findings and conclusions that the appellants were insubordinate and dishonest were not perverse.

The applicable legal principles

[23] I commence the discussion by restating one of the well-established principles of our law with respect to the power of a court hearing an appeal. A court of appeal cannot decide the matter afresh and substitute its decision for that of the court of first instance; it would do so only where the court of first instance did not exercise its discretion judicially or by showing that the court of first instance exercised the power conferred upon it capriciously or upon a wrong principle or materially misdirected itself in fact or in law.²

[24] The Supreme Court³ quoting with approval from Botha v Law Society, Northern Provinces⁴, outlined the power of an appeal court in the following terms:

‘That discretion is an example of a “narrow” discretion. The consequence is that an appeal court will not decide the matter afresh and substitute its decision for that of the court of first instance; it will do so only where the court of first instance did not exercise its discretion judicially, which can be done by showing that the court of first instance exercised the power conferred on it capriciously or upon a wrong principle, or did not bring its unbiased judgment to bear on the question or did not act for substantial reasons, or materially misdirected itself in fact or in law’.⁵

[25] In Janse Van Rensburg v Wilderness Air Namibia (Pty) Ltd⁶ the Supreme Courted noted that:

‘[45] It should be emphasised, however, that when faced with an appeal against a decision that is asserted to be perverse, an appellate court should be assiduous to avoid interfering with the decision for the reason that on the facts it would have reached a different decision on the record. That is not open to the appellate court. The test is exacting – is the decision that the arbitrator has reached one that no reasonable decision-maker could have reached.’

[26] Section 33 of the Labour Act fortifies the established principle that dismissals of employees must be both substantively and procedurally fair. In Dominikus v Namgem Diamonds Manufacturing,⁷ substantive fairness was explained as follows:

‘Substantive fairness means that a fair and valid reason for the dismissal must exist. In other words the reasons why the employer dismisses an employee must be good and well grounded; they must not be based on some spurious or indefensible ground. This requirement entails that the employer must, on a balance of probabilities, prove that the employee was actually guilty of misconduct or that he or she contravened a rule. The rule, that the employee is dismissed for breaking, must be valid and reasonable. Generally speaking, a workplace rule is regarded as valid if it falls within the employer's contractual powers and if the rule does not infringe the law or a collective agreement.’

[27] Section 33(4)(a) of the Labour Act provides that in any proceedings concerning a dismissal, if the employee establishes the existence of a dismissal, it is presumed, unless the contrary is proved by the employer, that the dismissal is unfair. A reading of the section makes it quite unequivocal that the line that determines where the burden lies is drawn at the point of dismissal of the employee irrespective of whether the reason for the dismissal is for a proved act of misconduct, or that what is alleged is merely suspicious conduct which is not satisfactorily explained by the worker. As Gibson J said:

‘Thus the burden, whether it be in its strict sense or the lesser form, under the law as it stands, never shifts; the employer must prove that the dismissal was for a valid and fair reason’.⁸

[28] Collins Parker, in his seminal work Labour Law in Namibia,⁹ mentioned that there are two requirements of establishing unfair dismissal. Firstly, the employee must establish whether there was dismissal, and secondly, if it is established that such dismissal took place, then it is presumed to be unfair and the employer must prove that it was valid and fair, and that a fair procedure was followed.¹⁰ The test for fair dismissal is two-fold i.e. substantive fairness and procedural fairness and the two are cumulative and not separate.¹¹

[29] From the preceding discussion it is safe to state that adjudging whether an employee has committed an act of misconduct, is a power conferred on an arbitrator. The factual findings made by the arbitrator must stand,¹² unless it is demonstrable that no reasonable arbitrator could have reached that conclusion.¹³

Is the decision that the appellants were guilty of insubordination, a decision which a reasonable arbitrator could reach?

[30] At common law, employees are obliged to respect and obey their employers because lack of respect renders the employment relationship intolerable and disobedience undermines the employer’s authority. Parker argues that an employee’s obedience to the lawful and reasonable instructions of his or her employer is the touchstone of the employer-employee relationship.¹⁴ Our courts require an employee to show a reasonable degree of respect and courtesy to his or her employer and to obey the employer’s reasonable and lawful instructions.¹⁵

[31] John Grogan¹⁶ reasons that in the employment context ‘respect’ does not mean deference or obeisance. He argues that at most this requirement imposes on employees a duty to behave in a manner compatible with the subordinate position in which the employee by definition stands vis a vis the employer.¹⁷ Disrespect to an employer justifies termination of the employment relationship only when it is so gross or so frequent so as to suggest that the employee has repudiated the employer’s lawful authority.¹⁸ This point of view was expressed as follows by Lord Evershed in Laws v London Chronicle (Indicator Newspapers) Ltd,¹⁹

'It is, no doubt, therefore, generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard - a complete disregard - of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master and that, unless he does so, the relationship is, so to speak, struck at fundamentally. … I do, however, think … that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages that I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions.'

[32] When an employee refuses to accept the authority of his or her employer or of a person in a position of authority over him or her that employee commits an act of insubordination.²⁰ Grogan argues that whether a refusal to obey an instruction amounts to insubordination depends on a number of factors, including the action of the employer prior to the allege insubordination, the wilfulness of the employee’s defiance and the reasonableness or otherwise of the order that was defied.²¹

[33] In the present matter there is little doubt that the respondent through its shift manager, Ms !Owos–Oas and its human resources manager Ms Moshoeshoe instructed the appellants to pack fish into boxes. The respondent’s evidence, that the instruction to the appellants to pack the fish was a reasonable and legitimate operational requirement, was not serious disputed by the appellants. There is also no dispute that the appellants did not pack the fish as instructed. The appellants, however, justify their failure to execute the instruction on the contention that they were not provided with personal protective clothing to enable them to execute the instructions. The respondent on the other hand contends that the failure to execute the instructions was because the appellants were of the view that it was not their duty to pack the fish.

[34] Reading the record of the arbitration proceedings it is plain that the parties’ versions as to why the instructions were not executed, were mutually destructive. For that reason, the arbitrator ought to have followed the approach outlined by our courts on how to deal with the irreconcilable versions of the parties, namely that:

(a) where the evidence of the parties’ presented to the court [in this instance to the arbitrator] is mutually destructive, the court [arbitrator] must decide as to which version to belief on probabilities;²² and

(b) the approach that a court [arbitrator] must adopt to determine which version is more probable, is to start from the undisputed facts which both sides accept, and add to them such other facts as seem very likely to be true, as for example, those recorded in contemporary documents or spoken to by independent witnesses.²³

[35] In Life Office of Namibia Ltd (Namlife) v Joel Amakali²⁴ this Court per Smut J (as he then was) stated that:

‘[52] Arbitration tribunals are established as tribunals for the purpose of art 12 of the Constitution. Their decision making must be able to stand up to scrutiny and, given the status as tribunals for the purpose of art 12, are to follow the accepted techniques of courts in resolving factual disputes. This is re-inforced by the fact that appeals against their awards to this court are limited to questions of law alone. But if their findings of fact are entirely unsupported by the evidence or made without a proper evaluation of that evidence to the extent that no reasonable court or tribunal could have reached those conclusions, then it would amount to a question of law.

[53] The arbitrator’s reasons, set out fully above, show little or no appreciation at all as to how irreconcilable versions of fact are to be resolved. There are no coherent findings on credibility, reliability and probabilities or an appreciation for the determination and consideration of those issues.’

[36] The criticism (namely that the arbitrator’s reasons, show little or no appreciation at all as to how irreconcilable versions of fact were to be resolved and that there are no coherent findings on credibility, reliability and probabilities or an appreciation for the determination and consideration of those issues) levelled by Justice Smuts against the findings of the arbitrator in Life Office of Namibia Ltd (Namlife) v Joel Amakali finds application in this matter. I say so for the reasons that all that the arbitrator in the present matter states, (as I quoted in detail earlier in this judgment) is that no credible evidence was led to proof that appellants did not commit any of the two charges proffered against them. This is a clear indication that the arbitrator in the present matter failed to appreciate the fact that the onus was on the respondent (Embwiinda Fishing) to proof that the appellants committed the acts of misconduct they were accused of.

[37] As regards the credibility of the appellants the arbitrator simply states that: ‘The applicants stated that they were refused to be provided with PPE by the respondent, the applicants' credibility was placed in question and made me doubt that their versions were truthful.’ The arbitrator does not indicate how the appellants’ credibility was placed in question and what it is that made him doubt that the appellants’ versions were truthful. In addition what the law requires is for the arbitrator to, on probabilities, determine is which version (between the version of the appellants and that of the respondent) to belief. I have just mentioned those two as examples to demonstrate that the arbitrator show little or no appreciation at all as to how irreconcilable versions of fact were to be resolved. The incoherence of the arbitrator’s reasoning is apparent from his reasoning as quoted in this judgment.

[38] In Makate v Vodacom (Pty) Ltd ²⁵ the South African Constitutional Court (per Madlanga J) argued that:

‘But even in the appeal, the deference afforded to a trial court’s credibility findings must not be overstated. If it emerges from the record that the trial court misdirected itself on the facts or that it came to a wrong conclusion, the appellate court is duty-bound to overrule factual findings of the trial court so as to do justice to the case. In Bernert this Court affirmed:’

“What must be stressed here, is the point that has been repeatedly made. The principle that an appellate court will not ordinarily interfere with a factual finding by a trial court is not an inflexible rule. It is a recognition of the advantages that the trial court enjoys which the appellate court does not. These advantages flow from observing and hearing witnesses as opposed to reading “the cold printed word”. The main advantage being the opportunity to observe the demeanour of the witnesses. But this rule of practice should not be used to “tie the hands of appellate courts”. It should be used to assist, and not to hamper, an appellate court to do justice to the case before it. Thus, where there is a misdirection on the facts by the trial court, the appellate court is entitled to disregard the findings on facts and come to its own conclusion on the facts as they appear on the record. Similarly, where the appellate court is convinced that the conclusion reached by the trial court is clearly wrong, it will reverse it.”

[39] I am satisfied that the arbitrator misdirected herself on the law with respect to how to resolve the mutually destructive versions of the parties, warranting this Court to interfere and reconsider the question.

[40] The question to be answered here is thus which version is, on probabilities, likely to be true. Did the respondent fail to provide the appellants with the personal protective clothing that was required to enable them to execute the task they were instructed to perform or did the appellants refuse or fail to execute the task they were instructed to perform because they regarded it as not part of their duties.

[41] The evidence on behalf of the appellants (Ms Prisca Gamases) was that when Ms !Owos-Oas instructed them to go pack the fish they (appellants) raised their concerns about the lack of PPE( personal protective clothing) for the IQF area and that a certain Helga requested that Ms !Owos-Oas attend to the warehouse to provide them with the required PPE, including jerseys so they can go and pack the fish and once they finished packing the fish, they will give back the protective clothing. Ms Gamases testified that Ms !Owos-Oas responded to that request by stating that she is not there to get instructions from the appellants.

[42] Ms Gamases further testified that a certain Johanna Andreas requested Ms !Owos-Oas for her to inform the respondent’s management to provide them with a bus to take them home to change and dress appropriately to perform the function that they were instructed to perform. There was further evidence from other appellants (such as Peter Newongo, Ms Kambundu, Haihambo Penias, Immanuel Hafeni Shiwedha, Medusalem Alweendo, Rudolfine Eibes, Olivia Movilongo, Loide Itembo, Brenda Guriras and Christa Mutanga) who in many respects corroborated each other’s testimony. The arbitrator found that these witnesses contradicted each other. My finding, however, is that the witnesses did not contradict each other but simply testified as to their personal circumstances.

[43] The difficulty with the appellants’ testimony is that when the respondent’s witness testified the appellants’ versions were not put to the witnesses for the respondent for them to comment on those aspects. In Navachab Gold Mine v Izaaks,²⁶ Hannah J quoted Claassen J’s statement in Small v Smith,²⁷ that:

‘It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness and if need be to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give a fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness evidence go unchallenged in cross examination and afterwards argue that he must be disbelieved.’

[44] The judge (Hannah J) continued and said:

‘The rule that an opposing party must put its case to the other party’s witnesses in respect of matters which are not common cause is not to be found in formal rules of court, but is, as I have already pointed out, based on considerations of fundamental fairness and a court should be slow to reject a witness’s evidence on such matters where it has not been challenged and the witness has not been given an opportunity to deal with the conflicting version which the opposing party’s witnesses give in due course.’

[45] Since the respondent’s witnesses specifically Ms !Owos Oas and Ms Moshoeshoe were not confronted with the appellants versions and given the opportunity to deal with those pieces of evidence contradicting her evidence. I find that it is more probable that the reasons why the appellants did not pack the fish include their views that the task of packing the fish was not part of their duties. I therefore find that for that reason they were guilty of insubordination.

Is the decision that the appellants were guilty of dishonesty, a decision which a reasonable arbitrator could reach?

[46] The arbitrator held that the misconduct charge of dishonesty had been established because:

‘[21] From the evidence before me the charge of dishonesty it came about as a result of the meeting that took place on 13 March 2019 wherein the real reason of insubordination was discovered. Furthermore I find it difficult not to believe the respondent version that the applicants misrepresented the management hence all the witness testified for the applicants indicated that they were not part of the meeting of 13 March 2019 however they have indicated that they were aware of the said meeting and its purpose. It was not disputed that the statement was made by the applicants or by their representatives.

[22] In the result, I am satisfied that there was a proper charge of dishonesty and the same was placed throughout before the arbitration proceedings. The applicants were employed in a supervisory position where trust is a key factor. Dishonesty is generally seen as a serious offence and in certain instances dishonesty can justify dismissal. In my view the person holding such position should maintain the highest possible ethical standards and honesty. In Anglo American Farms v Boschendal Restaurant v Komjwayo it was stated that this trust which the employer places in the employee are basic to and forms the substratum of the relationship between them. A breach of this duty goes to the root of the contract of employment and the relationship between employer and employee.’

[47] The arbitrator’s reasoning that ‘the basis of her finding the appellants guilty of dishonesty is the fact that they (the appellants) were aware of the meeting of 13 March 2019 and its purpose and that it was not disputed that the statement was made by the appellants or by their representatives at the meeting of 13 March 2019’ demonstrates a possible misapplication of the otherwise well-established legal principles of the doctrine of common purpose.

[48] In order to demonstrate the error and perverseness of the arbitrator’s finding I find it appropriate to briefly set out the law relating to the doctrine of common purpose.

[49] The doctrine of common purpose has traces back to the Transkei Penal Code’s section 78, which is a version of the Native Territories Penal Code of 1886 section 78 which provides:

‘If several persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by anyone of them in the prosecution of such common purpose, the commission of which offence was, or ought to have been, known to be a probable consequence of the prosecution of such common purpose.’

[50] In Roman–Dutch law, any person who counselled or gave assistance to another became punishable ‘al den principal’²⁸. In R v Peerkhan & Lalloo,²⁹ the court had, per Innes J, interpreted what participation would mean in terms of the common law. Innes J held that:

‘It [our law] calls a person who aids, abets, counsels or assists in a crime a socius criminis – an accomplice or partner in crime. And being so, he is under Roman Dutch law as guilty, and liable to as much punishment, as if he had been the actual perpetrator of the deed. Now it is clear that in our criminal courts men are convicted for being socii criminis without being specially charged in the indictment as such.’

[51] For the purposes of this judgment I will set out the principles of common purposes as outlined in S v Safatsa³⁰ and S v Mgedezi³¹. In Safatsa, six participants in a mob were charged with and later convicted of the murder of the deceased. The court found that each of the accused shared a common purpose to kill the deceased with a mob as a whole. The court held in this case that there need not be a causal connection between the acts of every party to the common purpose and the death of the deceased need not be proved in order to sustain a conviction of each of the participants. Botha JA stated that it was:

‘…a clear recognition of the principle that in cases of common purpose the act of one participant in causing the death of the deceased is imputed, as a matter of law, to the other participants. The reference to ‘voorafbeplanning’ is not significant, for it is well established that a common purpose need not be derived from an antecedent agreement, but can arise on the spur of the moment and can be inferred from the facts surrounding the active association with the furtherance of the common design.’

[52] Botha JA went on to state that:

‘[T]here can be no doubt, in my judgment, that the individual acts of each of the six accused convicted of murder manifested an active association with acts of the mob which caused the death of the deceased. These accused shared a common purpose with the crowd to kill the deceased and each of them had the requisite dolus in respect of his death. Consequently, the acts of the mob which caused the deceased’s death must be imputed to each of the accused.’

[53] In Safatsa two accused were acquitted by the trial court. The court held that although they were part of the mob that stoned the deceased’s house, there was no evidence that they were still present when the mob set the deceased’s house on fire and that they had been party to a common purpose to murder the deceased. They had in fact, dissociated from the common purpose or at least, no active association was proved against them.

[54] Following hot on the heels of Safatsa was the case of Mgedezi. In this case there was unrest in a mine compound where mineworkers considered their team leaders as informers. On the fatal night, bands of mineworkers raided the compounded while singing songs of death of these leaders. Violence erupted and a room used by the team leaders set alight while the door was torn down and the windows were broken. The attack resulted in the deaths of 4 team leaders while 2 managed to escape. The appeal court found that absenting a planned attack and absent a causal link between the killing or injuring of the victims, a accused could still be held liable on the basis of the Safatsa case if the following perquisites were met:

‘In the absence of proof of a prior agreement, accused No 6, who was not shown to have contributed causally to the killing or wounding of the occupants of room 12, can be held liable for those events, on the basis of [common purpose], only if certain prerequisites are satisfied. In the first place he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault on the victims. Thirdly, he must have intended to make common course with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. Fifthly, the requisite mens rea; so, in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.’

[55] It is thus clear that the doctrine of common purpose, as a general rule requires that for the appellants to be held liable for the act of dishonesty they must have all been present at the meeting where the employer was allegedly deceived, secondly, the appellants must have been aware that the trade union representatives were deceiving the respondent and the appellants intended to make common course with the trade union representatives when they were allegedly deceiving the respondent. All these aspects were not proven in the present matter. I therefore further find that the arbitrator whilst purporting to apply the extant principles of the doctrine of common purpose, in fact, created a new principle. The arbitrator was wrong in that respect and her decision is thus perverse.

[56] The other closest principle to the concept of common purpose on which the appellants could have been found guilty is the concept of ‘derivative misconduct’ which has, in the labour context been developed by South African Courts.³² Whether the concept of derivative misconduct finds application in our law was not argued and I therefore will not dwell on it in detail.

[57] I find it safe to state that in South African labour law, derivative misconduct refers to a situation where an employee is implicated in misconduct as a result of their association or involvement with another employee’s misconduct. Derivative misconduct occurs when an employee is linked to or implicated in another employee’s misconduct, even if they were not directly involved in the misconduct themselves.³³ This could include situations where an employee knew about the misconduct but failed to report it or actively assisted or covered up the misconduct.³⁴ Grogan summarises derivative misconduct as:

'…the term given to an employee's refusal to divulge information that might help his or her employer to identify the perpetrator of some other misconduct — it is termed derivative because the employee guilty of that form of misconduct is taken to task, not for involvement in the primary misconduct, but for refusing to assist the employer in its quest to apprehend and discipline the perpetrator(s) of the original offence. Trust thus forms the foundation of the relationship between employer and employee. Derivative misconduct is founded on this notion. There is no general obligation on employees to share information about their colleagues with their employers, but at the very least employees must inform on their colleagues when they know that those colleagues are stealing from their employer, or that they have been guilty of misconduct which warrants disciplinary action.'³⁵

[58] From the above definition the key elements of derivative misconduct may be summarised to include:

(a) Knowledge of Misconduct. The employee is aware of the misconduct taking place.

(b) Failure to report the misconduct: The employee does not report the misconduct to the appropriate authorities within the organisation; and

(c) Implicit condonation of the misconduct: By not reporting the misconduct, the employee is seen as implicitly condoning or accepting the behavior.

[59] I have demonstrated in this judgment that ‘derivative misconduct’ occurs when an employee is linked to or implicated in another employee’s misconduct, even if they were not directly involved in the misconduct themselves. This could include situations where an employee knew about the misconduct but failed to report it or actively assisted or covered up the misconduct. The first factual difference which the present matter presents is that the trade union representative who called for the meeting and who made the representations at the meeting of 13 March 2019 were not employees of the respondent and they could therefore not have committed any acts of misconduct against the respondent. As such there is no act of misconduct committed by fellow employees which the appellants covered up.

[60] In the present matter the appellants were charged with dishonesty, in that they allegedly called for a meeting with the respondent’s management with the aim to make representations and convince the respondent’s management not to proceed with the disciplinary enquiry into the allegations of insubordination. The representation at the meeting were allegedly false and thus deceptive. While the respondent acknowledges that the majority of the appellants were not present at the meeting the arbitrator nonetheless found the appellants guilty of dishonesty by association.

[61] Secondly the concept of derivative misconduct does not absolve the employer from proving the commission of actual misconduct. The employer still has the obligation to prove that the employees alleged to have committed the misconduct had actual knowledge of the incidents of misconduct. The employer must, on the balance of probabilities, show that each employee had knowledge relevant to the primary misconduct and not merely that there was a possibility of the employee knowing. The knowledge allegedly possessed must be detailed and it must also be shown that the employee was culpable in the non-disclosure. In the present matter no evidence was led to demonstrate that the appellants and the trade union representatives had planned to deceive the respondent or that the appellants knew and were aware that the trade union representatives were lying and misleading the respondent.

[62] The cases that I have reviewed³⁶ also highlighted the important distinction between collective misconduct and derivative misconduct. In the case of derivative misconduct, the employee is not dismissed because he or she was part of a group, one or more of whose members committed the primary misconduct. The employee is dismissed because he or she failed to assist the employer in “bringing the guilty to book”. In the present case the respondent has not led any evidence to demonstrate that the appellants failed to assist it to bring the “guilty appellants to book”. I therefore find that on the evidence presented at the arbitration proceedings no reasonable arbitrator would find the appellants guilty of dishonesty either on the basis of the common purpose doctrine or on the derivative misconduct principle. The finding of guilt in respect of the charge of dishonesty is thus set aside

The appropriate remedy

[63] The Labour Act only approves dismissal that is not only lawful in the technical sense, but one that is also fair, meaning one that is not capricious but equitable, conscionable and just.³⁷ In National Union of Metalworkers of SA v Vetsak Co-operative Ltd & others the Appellate Division noted that there is no sure correspondence between lawfulness and fairness. While an unlawful dismissal would probably always be regarded as unfair (it is difficult to conceive of circumstances in which it would not), a lawful dismissal will not for that reason alone be fair.³⁸

[64] What then is fair reason? One of the requirements of a fair dismissal for misconduct is that the dismissal must be an appropriate remedy in the light of the facts of the case. In Sunshine Private College v Muchemedzi³⁹ Sibeya J reasoned that ‘fair reason’ involves a consideration of the question whether the employee is established to have committed misconduct and whether the ultimate sanction of dismissal, which is the capital punishment in labour relations, is suitable, taking into account all the circumstances of the case.

[65] I pause here to observe that I am conscious of the criticism against the analogy between ‘capital punishment’ and dismissal. In NUMSA obo Davids / Bosal Africa (Pty) Ltd⁴⁰ the arbitrator commented that:

‘Although, although as the union contends, dismissal is the most serious sanction that can be imposed by an employer, the analogy between the “death sentence” and dismissal upon which the union relies is in my view and emotive and inapposite. The comparison between the roles of the criminal justice system and the maintenance of discipline in the workplace should not be taken too far. Employers do not have the power to punish employees. Their powers over employees are contractual. An employer can warn employees that breaches of its rules may lead to termination of their employment, or terminate the contract when employees fail to comply with those rules. Viewed in this, light dismissal is not punishment. It is the exercise by the employer of its contractual right to terminate the contract for the employee’s breach … Modern labour law seeks to ensure that the employer’s contractual power is exercised fairly. This is why the employers are required to follow procedures and adhere to standards generally required of disciplinary tribunals, including the criminal courts. The analogy ends there.’

[66] I leave the debate as to whether or not the analogy between capital punishment and dismiss is apposite there and return to the requirement that for dismissal to be fair the sanction of dismissal must be appropriate. In Swartbooi and Another v Mbengela NO and Others,⁴¹ the Supreme Court reasoned that fairness comprehends that regard must be had not only to the position and interests of the worker, but also those of the employer, in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have due and proper regard to the objectives sought to be achieved by the Act. Grogan thus argues that courts and arbitrators are required to ensure that those responsible for decisions to dismiss employees have exercised their discretion fairly and reasonably.⁴² An arbitrator or a court thus has an obligation to objectively assess whether the dismissal of an employee was fair.

[67] In Sidumo & another v Rustenburg Platinum Mines Ltd & others⁴³ the South African Constitutional Court was at pains to point that the test applied by the Supreme Appeal Court (in Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration⁴⁴) is not the appropriate test. In that matter the Supreme Court said:

'The determination of an appropriate sanction is a matter which is largely within the discretion of the employer. However, this discretion must be exercised fairly. A court should, therefore, not lightly interfere with the sanction imposed by the employer unless the employer acted unfairly in imposing the sanction. The question is not whether the court would have imposed the sanction imposed by the employer, but whether, in the circumstances of the case, the sanction was reasonable.’⁴⁵

[68] The Constitutional Court pointed out that the above approach, has been extensively criticized in England on the basis that it does not allow for a proper balancing of the interests of employer and employee⁴⁶. The Constitutional Court further commented that the labour legislation in South Africa requires of an arbitrator to determine whether a dismissal is fair – he or she is not required to determine if the sanction is one which a reasonable employer would have arrived at.⁴⁷ This comment applies with equal force to our scenario. As I pointed out above s 33 of the Labour Act, 2007 only sanctions a dismissal which is lawful and fair.

[69] In Sidumo the Constitutional Court further reasoned that:

‘In deciding how commissioners should approach the task of determining the fairness of a dismissal, it is important to bear in mind that security of employment is a core value of the Constitution which has been given effect to by the LRA. This is a protection afforded to employees who are vulnerable. Their vulnerability flows from the inequality that characterizes employment in modern developing economies. The relationship between employer and an isolated employee and the main object of labour law is set out in the now famous dictum of Otto Kahn-Freund:

“[T]he relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In its inception it is an act of submission, in its operation it is a condition of subordination, however much the submission and the subordination may be concealed by that indispensable figment of the legal mind known as the “contract of employment”. The main object of labour law has always been, and we venture to say will always be, to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship.”

[70] The Constitutional Court continued and stated (I fully associate with these comments which I find persuasive) that:

‘The Constitution and the LRA seek to redress the power imbalance between employees and employers. The rights presently enjoyed by employees were hard-won and followed years of intense and often grim struggle by workers and their organizations. Neither the Constitution nor the LRA affords any preferential status to the employer's view on the fairness of a dismissal. It is against constitutional norms and against the right to fair labour practices to give pre-eminence to the views of either party to a dispute. Dismissal disputes are often emotionally charged. It is therefore all the more important that a scrupulous even-handedness be maintained. The approach of the Supreme Court of Appeal tilts the balance against employees.

It is a practical reality that in the first place it is the employer who hires and fires. The act of dismissal forms the jurisdictional basis for a commissioner, in the event of an unresolved dismissal dispute, to conduct an arbitration in terms of the LRA. The commissioner determines whether the dismissal is fair. There are therefore no competing 'discretions'. Employer and commissioner each play a different part. The CCMA correctly submitted that the decision to dismiss belongs to the employer but the determination of its fairness does not. Ultimately, the commissioner's sense of fairness is what must prevail and not the employer's view. An impartial third-party determination on whether or not a dismissal was fair is likely to promote labour peace.

In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee's conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.

To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.’⁴⁸

[71] In the present matter the respondent without much accepted the recommendations of the chairperson of the internal disciplinary committee to dismiss the appellants. My reading of the record creates the impression that the finding of guilt on the charge of dishonesty tilted the scale in favour of dismissing the appellants. I say so when one considers the following comments by the chairperson of the disciplinary committee:

[20] The instruction disobeyed by employees was important on account that resources available could have been adequately used, though it was not planned for, the employees could have executed it in less time than what they were paid for on the particular day. The persistent disobeying of a simple, lawful and reasonable instruction was on the whole, wilful and serious. in line with the principle that respect and obedience are implied duties of an employee under contract law, any repudiation thereof would constitute a fundamental and calculated breach, this is exacerbated by the attempt to mislead management, resulting in the guilty finding in respect of the charge of dishonesty.

[21] The employees continued to work subsequent to the commission of the respective offences. It does not necessarily follow that because the employee was not suspended, therefore the relationship of trust has not broken down. The Employees have not shown any remorse. Not even in their submissions for purposes of sanctioning did they apologise to their employer for their conduct. As said, acknowledging wrong-doing is the first step towards rehabilitation.

[22] Although insubordination may not attract a sanction of dismissal on the first occurrence thereof, dishonesty may. This is indicative of the seriousness with which the Employer views the misconduct?’ [Emphasis added]

[72] From my reading of the record, it is clear that the arbitrator did not, as she is in law oblige to do, consider whether the sanction of dismissal was fair or not, particularly in relation to the misconduct of insubordination. She in the words of Navsa AJ deferred to the decision of the respondent when she simply states that:

‘[27] The rule is valid and reasonable. The applicants [the appellants] were aware of such a rule. From the foregoing reasoning and conclusions, I am satisfied that the respondent proved on a balance of probabilities that the sanction imposed was appropriate and considering the overall spectrum of this matter the sanction was not unreasonable that no reasonable employer would have imposed it.

[28] Consequently, I see no reason to interfere with the sanction imposed. Certain types of misconduct are so unacceptable that they cannot be excused and even if mitigating factors are considered, dismissal may still be considered just and fair, such as in the present matter…’

[73] I indicated that the application of the ‘reasonable employer test’ was such a palpable mistake which permit me to interfere with the decision of the arbitrator.

[74] Having found that the finding of guilt in respect of the charge of dishonesty is perverse and having set it aside, it follows that the dismissal on that basis must also be set aside and is thus set aside. The remaining question is then whether the dismissal of the appellants for insubordination is fair. I have indicated earlier in this judgment that one single act of insubordination will only justify the termination of the employment relationship when it is so gross or so frequent so as to suggest that the employee has repudiated the employer’s lawful authority or if that one act of disobedience or misconduct goes to show (in effect) that the employee is repudiating the contract, or one of its essential conditions.

[75] First the respondent’s employment code in this matter does not make a first act of insubordination a dismissible offence. Secondly the circumstances under which the appellants are found to have disobeyed the instructions of the respondent are peculiar. On 18 February 2019 the appellants having been informed that there would not be production activities came to work unprepared (in the sense of the attire that they wore on that day) to perform the production work that they were instructed to perform.

[76] The fact that I found that on a balance of probabilities one of the reasons why the appellants failed to execute the instructions that they were given includes the reason that they were of the views that the task they were instructed to perform was not part their normal duties does not exclude the possibility that they did not have the appropriate clothes (personal protective clothing). Thirdly the fact that the appellants remained in the employment of the respondent for a period in excess of 240 days without issues of trust popping up cannot count for nothing. The circumstances under which the instruction was disobeyed does in my view not signify an intention to repudiate the contract of employment. I therefore find that the dismissal was unfair.

[77] I do not agree with counsel for the respondent that an order for reinstatement, after lapse of more than four years of their dismissal is inappropriate, given the length of time that has passed. My disagreement is based on the fact that the long delay of four years was not the fault of appellants. They were wrongly dismissed. The order of reinstatement is not retrospective but is only effective from the date this order is granted.

[78] From the 15 appellants, only 10 testified at the arbitration proceedings (i.e. the 1st, 2nd, 4th, 6th, 9th, 10th, 11th, 12th, 14th and 15th appellants). The other appellants did not testify (i.e. the 3rd, 5th, 7th, 8th, 13th and 14th appellants). The Court (and the arbitrator) can hardly grant relief to the appellants who did not testify or present any evidence on which such relief, including an order for compensation, can be based.

[79] Consequently, the appeal succeeds. For the avoidance of doubt, the award of the arbitrator dated 12 September 2022 is set aside and replaced with the following order:

1. The dismissal of the 1^st, 2^nd, 4^th, 6^th, 9^th, 10^th, 11^th, 12^th, 14^th and 15^th appellants was substantively unfair.

2. The first respondent must from the date of this order alternatively not later than seven days from the date of this order reinstate the 1^st, 2^nd, 4^th, 6^th, 9^th, 10^th, 11^th, 12^th, 14^th and 15^th appellants.

3. There is no order as to costs.

4. The matter is finalised and removed from the roll.

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SF I UEITELE

Judge

APPEARANCES

1st, 2nd, 4th, 6th, 9th, 10th, 11th, 12th, 14th, 15^th

APPELLANTS: N ALEXANDER

Sisa Namandje & Co Inc, Windhoek

RESPONDENT: P J BURGER

Kinghorn & Associates, Windhoek