Amukena v Nampower and Others (HC-MD-LAB-MOT-REV-2021/00092) [2024] NALCMD 31 (15 August 2024)

REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

JUDGMENT

Case Number: HC-MD-LAB-MOT-REV-2021/00092

In the matter between:

SAMUEL MULEMWA AMUKENA APPLICANT

and

NAMPOWER FIRST RESPONDENT

MINISTRY OF LABOUR AND SOCIAL WELFARE

AND EMPLOYMENT CREATION SECOND RESPONDENT

BESTER MAIBA SINVULA THIRD RESPONDENT

Neutral citation: Amukena v Nampower (HC-MD-LAB-MOT-REV-2021/00092) [2024] NALCMD 31 (15 August 2024)

Coram: SIBEYA J

Heard: 5 March 2024

Delivered: 15 August 2024

Flynote: Labour Law – Arbitral award – Application to review and set aside the award in terms of s 89(4) and (5) of the Labour Act 11 of 2007 – What constitutes gross irregularity – The duty to set out clear grounds for review in compliance with s 89(5) – Laws and rules of court must be complied with by all including lay litigants – Where the propriety of a third party is raised there is a duty to join such third party to the proceedings – Gross irregularity by the arbitrator not established.

Summary: This is a review application where the applicant contends that a defect in the arbitration proceedings occurred, warranting the proceedings to be reviewed. The applicant claims that the arbitrator committed gross irregularities. The alleged gross irregularities are said to be worthy to have the award reviewed and set aside.

The applicant, who was charged and found guilty at a disciplinary hearing and subsequently dismissed referred several disputes including that of unfair dismissal to the Office of the Labour Commissioner for determination. At the Office of the Labour Commissioner, the arbitrator found that the applicant’s dismissal was substantively fair and procedurally unfair and awarded the applicant compensation. The applicant challenged the award on review, on the basis of alleged gross irregularities committed.

Held: that the purpose of setting out the grounds for the review application is to inform the interested parties of the issues that form the subject of the application and it is the basis on which an interested party may decide whether to join the proceedings or not.

Held that: the applicant complains of the decision in the award and not necessarily the procedure to get to the award. Complaints against a decision should be challenged through an appeal and not a review.

The applicant’s application is dismissed.

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ORDER

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1. The applicant’s application to review and set aside the arbitration award delivered on 9 April 2021, is dismissed.

2. There is no order as to costs.

3. The matter is removed from the roll and is regarded as finalised.

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JUDGMENT

___________________________________________________________________

SIBEYA J:

Introduction

[1] Before court is a review application, where the applicant seeks to have several decisions of and concerning his erstwhile employer ‘the first respondent’ and the arbitrator ‘the third respondent’, set aside. The applicant avers that the first and third respondents committed a plethora of gross irregularities which warrant the review and setting aside of the disciplinary proceedings conducted against him, together with the consequent arbitration proceedings and the arbitration award.

[2] The application is opposed by the first respondent only.

Parties and representation

[3] The applicant is Mr Samuel Amukena, an adult male resident of Rundu, and previously employed by the first respondent as an HV Electrician. At the time of his dismissal, he was a supervisor, based in Rundu. The applicant will be referred to as such.

[4] The first respondent is Nampower, fully named Namibia Power Corporation (Pty) Ltd, a company duly registered according to the laws of the Republic of Namibia and whose place of business is situated at Nampower Centre, 15 Luther Street, Windhoek. The first respondent is the only party that opposed the review application and is, therefore, strictly speaking the only respondent in the matter. The first respondent will thus be referred to as ‘the respondent’.

[5] The second respondent is cited as the Ministry of Labour and Social Welfare and Employment Creation, led by the Minister, who is duly appointed as such in terms of the Constitution of the Republic and whose address of service is care of the Office of the Government Attorney, Sanlam Centre, Independence Avenue, Windhoek. No relief is sought against the Minister or the Ministry.

[6] The third respondent is Mr Bester Maiba Sinvula, an adult male, and the arbitrator duly appointed in terms of the Labour Act 11 of 2007 (the Labour Act), employed at the Office of the Labour Commissioner stationed in Rundu. The third respondent will be referred to as ‘the arbitrator’.

[7] Where reference is made to the applicant and the respondent jointly, they shall be referred to as ‘the parties’.

[8] The applicant appears in person, while the respondent is represented by Mr Ulrich.

Relief sought

[9] The applicant seeks the following relief, as set out in his amended notice of motion:

‘1. An order declaring that the disciplinary proceedings conducted by the 1^st respondent’s Mr Reiner Jaguar against the applicant on the 22^nd and 30^th August 2019 and his subsequent conviction and dismissal constitute a nullity.

2. Reviewing and correcting or setting aside the entire arbitration proceedings, presided over by the third respondent.

3. Reviewing, correcting or setting aside the decision of the third respondent, under Case No. NERU 57-19, to read that the suspension of the applicant was both procedural and substantively unfair and constituted unfair labour practice.

4. Reviewing, correcting or setting aside the decision of the third respondent, under Case No. NERU 39-20, to read that the assessment of the applicant conducted on the 8^th May 2018, was both procedurally and substantively unfair and constituted unfair labour practice.

5. Reviewing, correcting or setting aside the decision of the third respondent, under Case No. NERU 44-19, to read that the final written warning issued to the applicant on the 29^th October 2018, was both procedurally and substantively unfair and constituted unfair labour practice.

6. Reviewing, correcting or setting aside the unfair dismissal of the applicant, under Case No. NERU 97-19, to read that the dismissal of the applicant was both procedurally and substantively unfair, therefore unlawful.

7. An order declaring the conduct of the 1^st respondent to unilaterally change the Nampower procedure for High Voltage Regulations and Training Section to conduct assessments in Nampower without an appeal option as procedurally unfair, unreasonable and inconsistent with the contract of employment and therefore unlawful.

8. An order declaring the conduct of the 1^st respondent as procedurally unfair and unreasonable when it failed to disclose the assessment marks or results of the applicant in terms of the assessment conducted on the 8^th May 2018, as such conduct was inconsistent with the contract of employment therefore constituted unfair labour practice.

9. An order for retrospective reinstatement with backpay as from the date of unfair labour dismissal with cost on the applications (sic).

9.1 Alternatively, compensation for the 13 years’ remainder of the contract of employment, on grounds of dismissal motivated by corruption, tribalism, racism, whistleblowing and for failure to offer and guarantee safety and protection for whistle-blowers as provided for in the contract of employment.

9.2 Alternatively, an order to the 1^st respondent to compensate the applicant for procedural unfair dismissal as found by thee arbitrator in line with the compensation granted by the 1^st respondent to Mr Yilonga for his procedural unfair dismissal in which he was granted 15 months’ salary pay out, this order should be made in the interest of equality and consistency in the application of the law.

10. An order to upgrade/adjust the applicant as per the practical assessment retrospectively as of 8^th May 2018 with back pay with the 10 percent increments on the basic salary at the time and on all the benefits on the pay slip of the applicant.

11. The court should make a finding that the Level 5, Certificate of Authorization issued on the 14^th September 2018 to Mr Thompson Freddy, by the 1^st respondent was procedurally unfair, unreasonable, unlawful and constitutes fraud, altering, forgery and corruption.’

Background

[10] On 12 October 2018, the applicant was charged and brought before a disciplinary hearing for causing racial tension or having the potential to lead to racial tension. He was found guilty as charged and given a final written warning. He appealed internally but he was unsuccessful. He then referred his dispute to the Office of the Labour Commissioner.

[11] On 1 July 2019, the applicant was, after writing and circulating a document to more than 500 people in the company of the respondent accusing the Managing Director and his management of dishonesty and reckless management of the respondent, charged with three offences of misconduct. In his defence, for writing and circulating the said document, the applicant stated that his action was caused by the conduct of the respondent for not considering his complaints of unfair treatment and racial discrimination. The aforesaid charges were the following:

Charge 1 – That he accused the Managing Director of the respondent of being dishonest and recklessly exposing the applicant and Mr Thomas Freddy by requesting the latter to accept the Managing Director’s decision to be re-assessed;

Charge 2 – That he accused the Managing Director of dishonestly, recklessly, irresponsibly and unreasonably arranging for the applicant to be re-assessed and thus evaded liability when he declined to deal with the applicant’s appeal on the assessment;

Charge 3 – That he accused the Managing Director of dishonesty in that he attempted to authorise Mr Freddy Thompson with level 6 authorisation which the said Mr Freddy Thompson never worked for or deserved to acquire.

[12] Upon being charged as aforesaid, the applicant was suspended with full pay. Disgruntled with the suspension, the applicant referred the dispute regarding the suspension to the Labour Commissioner.

[13] Subsequent to a disciplinary hearing, the applicant was found guilty on all charges and was dismissed from employment on 8 October 2019. There was no appeal hearing, and this was because despite the disciplinary code of the respondent providing for an internal appeal, in casu, the members who should have constituted the internal appeal were involved in the disciplinary hearing. The disciplinary code dos not provide for the involvement of external persons, hence the matter was directly referred to the Labour Commissioner, without an internal appeal. Dissatisfied with the outcome of the hearing, the applicant referred a dispute of unfair dismissal to the Labour Commissioner claiming reinstatement and payment of benefits. In total the applicant referred the following disputes to the Office of the Labour Commissioner:

1. Unfair dismissal and unfair labour practice under case number NERU 97-19;

2. Unfair labour practice and unfair discrimination under case number NERU 38-20;

3. Unfair discrimination, disclosure of information and unfair labour practice under case number NERU 44-19;

4. Unfair labour practice under case number NERU 57-19.

[14] At arbitration, the said matters were consolidated and heard together. After hearing evidence from several witnesses, the arbitrator on 9 April 2021, delivered the award where he found that the dismissal of the applicant was substantively fair and procedurally unfair. He further found that the suspension of the applicant was unfair. He further dismissed the dispute of unfair dismissal and unfair discrimination. He thereafter ordered the first respondent to pay the applicant four months’ salary as compensation for unfair suspension.

[15] Discontented by the award, the applicant launched this review application. The application is opposed by the first respondent.

The notice of motion

[16] I have considered the applicant’s notice of motion. I sympathise with him for drafting the notice of motion without the assistance of a legal practitioner. This is because several grounds for review raised in the notice of motion do not challenge the procedure but questions the decisions of the arbitrator. Other grounds are strictly not grounds for review. The law and the rules of court must nevertheless be complied with. The applicant was thus required to clearly set out the grounds for the review in the notice of motion.

[17] Parker J in Shoprite Namibia (Pty) Ltd v Faustino Moises Paulo and Another¹ remarked as follows regarding the need to specify grounds of appeal in a labour appeal:

‘It is trite that a notice of appeal must specify the grounds of the appeal and the notice must be carefully framed, for an appellant has no right in the hearing of an appeal to rely on any grounds of appeal not specified in the notice of appeal. In this regard it has also been said that precision in specifying grounds of appeal is not a matter of form but a matter of substance … necessary to enable appeals to be justly disposed of (Johnson v Johnson [1969] 1 W.L.R. 1044 at 1046 per Brandon J). The locus classicus of a similar proposition of law by the Court is found in S v Gey Van Pittius and Another 1990 NR 35 at 36H where Strydom AJP (as he then was) stated, “The purpose of grounds of appeal as required by the Rules is to apprise all interested parties as fully as possible of what is in issue and to bind the parties to those issues”. That case concerned a criminal appeal, but I see no good reason why the principle enunciated by the Court should not apply with equal force to appeals in terms of the Labour Act.’

[18] I hold the view that although the above remarks were made in reference to a labour appeal, the need to specify grounds on which the application is based applies to labour reviews as well.

[19] The grounds for the review application inform interested parties and the court of the basis of the application. The interested parties are, therefore, alerted of the nature and form of the review application by having regard to the grounds mentioned, after which they can make a choice whether to join the proceedings or not. The court can also only adjudicate the application based solely on the grounds raised therein.

[20] The applicant filed an application for review which appears to be doubled up as an affidavit dated 27 April 2021. I have decided to consider the substance rather than the form and manner in which the application is presented. In the application, the applicant is clear that he seeks an order to review and set aside the arbitration award issued by the arbitrator and to have the matter determined by this court expeditiously without remitting it back to the arbitrator.

[21] The review is sought on several grounds listed in the review application. The applicant contends, inter alia, that the arbitrator failed to discharge his duties to deal with the substantive merits of the dispute. He claims further that the arbitrator misconceived the nature of the enquiry resulting in there being no fair trial, and that the arbitrator committed a gross irregularity by failing to appreciate the totality of the evidence presented before him. The applicant further contends that the arbitrator disregarded the seriousness of fraud and racial discrimination allegedly committed by the respondent towards the applicant. He claims further that the arbitrator failed to appreciate that approving the respondent’s unlawful disciplinary proceedings constituted a miscarriage of justice. He states further that the arbitrator had no regard to the standard of proof and the evidence, as no arbitrator could confirm the dismissal in light of the evidence of fraud presented on 8, 9 and 12 October 2018.

[22] I, at the outset, find that the above-mentioned grounds for review raised in the notice of motion lack the substantive details that could inform an interested party as fully as possible of the subject in issue and not just conclusions. I find that the aforesaid review grounds constitute legal conclusions and fall short of proper review grounds, regard being had to the passage cited above from Shoprite Namibia. For this reason, I say no further on the said grounds strictly not constituting review grounds.

Proceedings before the arbitrator

Applicant’s contention

[23] The applicant stated that the main issue for determination is the question whether or not the arbitrator committed misconduct in his duties and/or committed gross irregularities during the arbitration proceedings to warrant a review in terms of ss 89(4), 89(5) and 117 of the Act. The applicant contends further that he was denied a fair hearing guaranteed in Article 12 of the Namibian Constitution “the Constitution”.

[24] The applicant contends that he was denied the right to legal representation and therefore, the arbitrator committed gross irregularities. The applicant initially applied to be represented by a Mr John Kangowa, a labour consultant, and which application was granted by the arbitrator. At conciliation, however, he showed up with a legal representative in the name of Mr Norman Tjombe. He states further that Mr Tjombe was allowed to speak for the applicant at conciliation. Amongst the issues allegedly addressed by Mr Tjombe, according to the applicant, was to force the applicant to accept the application for relocation of the arbitration proceedings from Windhoek to Rundu without the consent of the applicant. This, coupled with the fact that there was no approval for Mr Tjombe to represent the applicant, the applicant states, led to arbitration proceedings where he had no legal representative. He also alleged that Mr Tjombe did not act in his best interest.

[25] The applicant contends further that the arbitrator prevented Mr Vicus Meyer from testifying at arbitration proceedings on 12 October 2018, resulting in him not receiving a fair trial. He contends further that the arbitrator ignored the evidence of fraud allegedly committed on 14 September 2018, when the respondent issued a certificate of Authorization (level 5) to Mr Thompson Freddy, whom he refers to as a ‘white employee’ without attending the assessment in Windhoek. He claims that the alleged fraud was not disputed by the respondent. He contends further that he, a ‘black employee’, attended the assessment but was not provided with a certification out of racial discrimination. He contends further that the arbitrator failed to consider the undisputed evidence that he was threatened with death by a certain Mr Kamerika to abandon the claim of unlawful authorization of a white employee.

[26] The applicant further claimed that the arbitrator failed to appreciate that on 12 October 2018, the respondent unlawfully forged documents in order to justify the final written warning which was taken into account in his dismissal on 7 October 2018.

[27] Lastly, the applicant contends that the arbitrator failed to consider that he was charged with rudeness, which is not a serious offence.

Respondent’s arguments

[28] The respondent contends that most of the grounds for review raised by the applicant are concerned with the outcome of arbitration proceedings and, therefore, do not fall within the ambit of what is regulated in s 89(5) of the Act. Mr Ulrich argued with force and might that the applicant, who alleges that the arbitrator committed gross irregularities, failed to prove such gross irregularities in order to be justified to institute these proceedings in terms of s 89(5).

[29] Mr Ulrich placed heavy reliance on the following passage from Jockey Club of South Africa and Others v Feldman:²

‘In respect of civil cases a test has been formulated in various decisions in Provincial Courts, for instance, Stemmer v Sabina (1910, T.S. 479) and Ablansky v Bulman (1915 TPD 71), where it was held that if the irregularity complained of is calculated to prejudice a party he is entitled to have the proceedings set aside unless the Court is satisfied that the irregularity did not prejudice him. This, in my judgment, is the correct test and we adopt it. I may mention that the concluding remarks of SOLOMON, J.A., in his judgment in Myers v South African Railways (1924 AD 85) lend support to the view that this is also the test to be applied in the case of proceedings before statutory tribunals. In my judgment the same test is applicable to proceedings before a private tribunal such as the Head Executive Stewards.’

[30] Mr Ulrich argued that the applicant failed to clearly set out the conduct of the arbitrator that constitutes gross irregularity.

[31] In respect of the witness Mr Vicus Meyer, who was not called, Mr Ulrich submitted that although not called by the respondent, the applicant could have called Mr Meyer to testify by issuing a subpoena.

[32] On the complaint of denial of legal representation, Mr Ulrich argued that the applicant was not denied legal representation. To the contrary, the arbitrator just follows the provisions of the Act to the letter, and once again, he argued, the applicant failed to demonstrate gross irregularity on the part of the arbitrator.

The law and analysis

[33] Section 89(5)(a) and (b) of the Labour Act, expressly, provides for scenarios when arbitration proceedings may be subjected to review proceedings. These are:

1. when the arbitrator has committed misconduct in relation to the duties of an arbitrator (s 89(5)(a)(i));

2. when the arbitrator has committed a gross irregularity in the conduct of the arbitration (s 89(5)(a)(ii));

3. when the arbitrator has exceeded his or her power (s 89(5)(a)(iii));

4. when the award has been improperly obtained (s 89(5)(b)).

[34] In order to succeed, the applicant must prove one or more of the grounds of review set out above.

[35] An assessment of the grounds for review reveal that the applicant relies on the alleged commission of gross misconduct in the conduct of arbitration proceedings by the arbitrator as the basis for the review application.

[36] C Parker in his work, Labour Law in Namibia³ discussed the meaning of gross irregularity in the context of labour reviews and remarked that:

‘Gross irregularity will be found to exist where there has been a breach of a rule of natural justice resulting in the aggrieved party not having had his case heard and fairly determined. There are three rules of natural justice. First, the audi alteram partem rule, which states that the other party must also be heard. Second, the rule that the one who decides must not be biased, i.e. he must not decide in his own case. To these two rules of natural justice must be added a third that has been developed over the years, namely, that “justice should not only be done, but should manifestly and undoubtedly be seen to be done.”’

[37] At p. 213, C Parker proceeded to state that:

‘… as the Labour Act provides, the irregularity committed by the Arbitrator must be “gross”. Accordingly,… an irregularity that is calculated to prejudice a party is “gross irregularity” within the meaning of s 89(5)(a)(ii) of the Act.’

[38] I endorse the meaning accorded to gross irregularity by C Parker. I, however, state further that sight should not be lost by limiting gross irregularity only to an irregularity where it can be established that there is calculated prejudice to a party. I am of the considered view that even if it cannot be proven that there was a deliberate or preconceived irregularity to prejudice a party, but the irregularity committed affects one of the rules of natural justice, then that would constitute gross irregularity. Conversely put, a question to be asked is whether the irregularity committed is such that it constitutes a denial of the right to a fair hearing or not. If the answer is in the affirmative then, in my view, it constitutes gross irregularity.

[39] I agree with the argument by Mr Ulrich that the applicant is vague in his allegations as to what conduct of the arbitrator constitutes gross irregularity. It is expected of a party that alleges gross irregularity on the part of the arbitrator to lay bare such grounds and bases for the allegation. This duty, in my view, applies to all who allege gross irregularity, inclusive of self-actors or lay litigants. The interested parties and the court need not go high and low in the papers in search for the grounds and basis of gross irregularity.

[40] The applicant’s qualm that the arbitrator prevented Mr Vicus Meyer to testify can be disposed of with ease. The applicant insists that the respondent should have called Mr Meyer as its witness. It is settled procedural law that a party cannot be compelled to call and lead a witness against its will. However, if a witness for an opposing party is not called, the other party my call such witness. Furthermore, nothing prevents a party from calling any witness by subpoena, including a witness who is considered to be an opposing witness. It follows, therefore, that the applicant could have called Mr Meyer by subpoena if he so elected.

[41] In respect of the relocation of the proceedings from Rundu to Windhoek, the applicant agreed to the said relocation. Nothing more need to be said on this subject.

[42] It appears that Mr Tjombe participated in the conciliation proceedings. Mr Tjombe appeared at the conciliation proceedings as representative of the applicant and after being instructed by the applicant. I, therefore find it difficult to appreciate the complaint of the applicant regarding Mr Tjombe. In any event, the applicant was well aware of the steps he could take against his legal representative if he realised that Mr Tjombe was not advancing his cause. The applicant complained to the Law Society which is the regulating body of the legal practitioners. Suffice to state that the relationship between the applicant and Mr Tjombe broke down at conciliation and Mr Tjombe did not represent the applicant at arbitration. There is further no prejudice caused to the applicant during conciliation by Mr Tjombe that is demonstrated by the applicant. In my view, this complaint is of no moment. Despite, Mr Tjombe was not afforded an opportunity to respond to the serious allegations made against him by the applicant, thus nothing turns on this complaint.

[43] The applicant further complains that the respondent unilaterally changed the procedure for High Voltage regulations and training without an appeal option to affected persons. The exact change complained of is not explained by the applicant and on this aspect alone, I find that the complaint ought to be dismissed for not being properly set out and not factually grounded. Furthermore, the evidence reveals that the applicant was invited to attend to practical assessment in order to qualify for level 6, in line with the applicable grading system of the respondent. He was found to fall short of the requirements. He appealed, albeit unsuccessfully. I am, therefore, inclined to accept that there were appeal processes in place as opposed to the applicant’s claim to the contrary.

[44] The applicant spent a considerable amount time addressing the alleged unlawful award of a level 5 certificate to Mr Freddy Thompson. He also alleged that fraud may have been committed in the process and that Mr Thompson was awarded the said certificate without attending the assessment. He argued that Mr Thompson was so awarded the certificate on the basis that he was a white employee compared to him who was a black employee. The allegations made by the applicant are very serious, not only against the respondent but more so against Mr Thompson. Mr Thompson is not a party to these proceedings. It is vital that where a party intends to make serious allegations of impropriety against another, such other person must be joined to the proceedings and be afforded an opportunity to respond to such grave allegations made against him or her. In casu, on account of the fact that Mr Thompson is not party to these proceedings and there were no attempts on record to join him to the proceedings, I decline to entertain this subject any further.

[45] The applicant seeks compensation similar to that awarded to Mr Yilonga. The applicant, however, fails to establish that Mr Yilonga’s matter is on all fours with his. In the absence of evidence to demonstrating that Mr Yilonga’s matter is similar to that of that of the applicant, it is difficult to comprehend the argument by the applicant that he should be treated in the same manner as Mr Yilonga.

[46] The remainder of the grounds of review raised by the applicant do not establish that the arbitrator committed gross irregularities. To the contrary, it is apparent from the review grounds raised that the applicant is aggrieved by the finding of the arbitrator and, therefore, questions the correctness of the award. In my view, that should have been questioned through a labour appeal and not a review. A review does not concern itself with the correctness or otherwise of the decision but the irregularities committed during the proceedings. In labour matters, reviews are clarified by s 89(5) of the Act, which sets out the permitted grounds upon which a decision can be challenged on review. The applicant, having alleged that the arbitrator committed gross irregularities, was duty bound to establish such gross irregularities, which in my view he failed to do.

Conclusion

[47] In view of the foregoing conclusions and findings, I hold the view that the applicant’s application for review to have the arbitration award dated 9 April 2021, reviewed and set aside falls to be dismissed, which I hereby do.

Costs

[48] As regulated by s 118 in the Act, despite having been successful to ward-off the review application, the court is only permitted to award costs if it is established that the application was instituted and proceeded with frivolously or vexatiously. This was not established in this matter. Ttherefore, there will be no order as to costs.

Order

[49] In view of the foregoing findings and conclusions, I make the following order:

1. The applicant’s application to review and set aside the arbitration award delivered on 9 April 2021, is dismissed.

2. There is no order as to costs.

3. The matter is removed from the roll and is regarded as finalised.

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O S Sibeya

Judge

APPEARANCES

FOR THE APPLICANT: In person

FOR THE RESPONDENT: B Ulrich

Of AngulaCo Inc, Windhoek