6
REPUBLIC OF NAMIBIA
IN THE LABOUR COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
RULING
Case no: HC-MD-LAB-APP-AAA-2022/00075
In the matter between:
BARTHO VENHONA MATUZEE APPELLANT
and
MINISTER OF LABOUR, INDUSTRIAL RELATIONS 1ST RESPONDENT
AND EMPLOYMENT CREATION: ARBITRATOR
MEMORY SINFWA
METHEALTH NAMIBIA ADMINISTRATORS 2ND RESPONDENT
Neutral Citation: Matuzee v Minister Of Labour, Industrial Relations and Employment Creation: Arbitrator Memory Sinfwa (HC-MD-LAB- APP-AAA-2022/00075) [2024] NALCMD 32 (23 August 2024)
Coram: OOSTHUIZEN J
Heard: 16 February 2024
Delivered: 23 August 2024
___________________________________________________________________
ORDER
___________________________________________________________________
IT IS ORDERED THAT:
1. The appeal is dismissed.
2. No order as to costs.
3. The matter is finalised and removed from the roll.
___________________________________________________________________
RULING
___________________________________________________________________
OOSTHUIZEN J:
Background
[1] The appellant is Bartho Venhona Matuzee, an adult male employee of the second respondent, Windhoek.
[2] The second respondent is Methealth Namibia Administrators. The second respondent terminated the services of the appellant during 2014 by way of retrenchment.
[3] During April 2018 the Labour Court ordered the reinstatement of the appellant in his employment with the second respondent.
[4] Subsequent to the reinstatement the appellant complained that he was not reinstated in a comparable position as previously occupied and that his remuneration, pension and bonuses are not correctly paid.
[5] The matter was referred to arbitration and an award was made on
20 December 2022 under case number CRWR 755-20.
[6] The arbitrator found that: 1
(a) The applicant failed, on a balance of probabilities to prove the shortfall claimed by him due thereto that he failed to call the witness who created a document upon which he relied.2
(b) The applicant is not entitled to be remunerated (additionally) for the one day less leave because that was already calculated in his remuneration upon reinstatement.3
(c) The applicant received his bonus for the relevant period.4
(d) The applicant failed to make out a case on a balance of probabilities that the second respondent did not contribute to his pension.5
[7] Consequently the arbitrator ordered that:
(a) The conduct of the second respondent does not amount to an unfair labour practice;
(b) The applicant is not entitled to the relief claimed; and
(c) The matter be dismissed.
[8] The applicant noted an appeal on 22 December 2020.6
[9] The notice of appeal contained no grounds of appeal (form 11).
[10] Two records of appeal were filed during 2023, one on 24 April 2023 and the other on 27 October 2023.
[11] The appellant was required to amend, add or vary his grounds of appeal within 10 days after the record was made available.7
[12] The appellant failed to do so.
[13] The appellant only filed amended grounds of appeal on 23 October 2023 without an application to condone.
[14] The appellant waited until 13 February 2024 to file a condonation application which failed to properly explain the time delay from May 2023 to February 2024 in bringing a condonation application. It is common cause that the appellant was represented by a legal practitioner during October 2023 when the amended grounds of appeal were filed.
[15] The condonation application of 13 February 2024 is declined.
[16] In the event that I might be wrong in declining the condonation application, I in any event find that the appeal instituted had no merits.
[17] The arbitrator did not conduct the arbitration and render the award in an unreasonable way. The findings and orders were made reasonably.
[18] The Labour Court may only interfere in a decision by the arbitrator if the decision was one that no reasonable decision-maker could have reached.
[19] In the premises, it is ordered that:
1. The appeal is dismissed.
2. No order as to costs.
3. The matter is finalised and removed from the roll.
___________________
G H Oosthuizen
Judge
APPEARANCE
Appellant: B V Matuzee
Erf 103 R. Ruzo Street, Wanaheda, Windhoek
2nd Respondents: K Haraseb
of LorentzAngula Inc., Windhoek
1 Record, Vol 6, Arbitration Award, pp 547 to 554.
2 Op cit, p 552.
3 Op cit, p 553.
4 Op cit, p 553
5 Op cit, p 553.
6 Record, Vol 6, pp 557 and 558.
7 Rule 17(15) of the Labour Court Rules.