REPUBLIC OF NAMIBIA
LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: HC-MD-LAB-APP-AAA-2023/00022
In the matter between:
CASIUS COLLIN WENZEL GEISEB APPELLANT
and
TRANSNAMIB HOLDINGS LTD 1ST RESPONDENT
LEAH SHIMBABA 2ND RESPONDENT
THE LABOUR COMMISSIONER 3RD RESPONDENT
Neutral Citation: Geiseb v TransNamib Holdings LTD (HC-MD-LAB-APP-AAA-2023/00022) [2024] NALCMD 43 (25 October 2024)
CORAM: PRINSLOO J
Heard: 28 June 2024
Delivered: 25 October 2024
Flynote: Labour – Appeal – Arbitration award – Labour Act 11 of 2007– Point in limine – Defective grounds of appeal
A defective notice of appeal is dispositive of the matter – An appeal is lodged in terms of s 89(1)(a) of the Labour Act, on questions of law alone.
Summary: The appellant was employed by TransNamib as a Senior Trains Operating Supervisor. On 29 May 2020, he was involved in a physical altercation with his immediate supervisor. During the altercation, the appellant used a broomstick that broke.
A disciplinary inquiry was held on 23 June 2020 and the appellant was charged with three charges of misconduct under the first respondent’s Disciplinary and Grievance policy. The appellant was found guilty of all three charges and subsequently, the appellant was dismissed from his employment. The appellant lodged a complaint of unfair dismissal, unfair labour practice and unfair discrimination with the office of the Labour Commissioner. The arbitrator held that the dismissal of the appellant by the respondent, TransNamib Limited, was procedurally and substantively fair, and the sanction of dismissal by the respondent was upheld.
The appellant, not satisfied with the arbitrator's award, appealed the award and brought the current labour appeal application.
Held that the appellant’s notice of appeal is not only brought in terms of the wrong section of the Labour Act, being s 90 instead of s 89, but also falls short in complying with the requirements of s 89(1)(a).
Held that the notice of appeal is defective because it sets out the appellant’s conclusion as to the arbitrator’s finding that the arbitrator erred in law and/or on facts and or misdirected herself in finding on the material before her that the appellant is guilty of the allegation against him and that the arbitrator did not include closing arguments points in law and/or requesting witness statements, and mixing labour dispute arguments with criminal statements but it does not put forth the basis or reason for the appellant’s conclusion.
Held that the first respondent’s points in limine are upheld and the appellant’s appeal is dismissed.
ORDER
1. The appeal is dismissed.
2. No order as to costs.
JUDGMENT
PRINSLOO J:
Introduction
The appellant brought an appeal in terms of s 90 of the Labour Act 11 of 2007 (the Act), against the entire arbitration award, awarded by the arbitrator on 7 February 2023 under case number CRWB 216-20. In the appeal, the appellant seeks to set aside the arbitration award as void and erroneous.
The parties
The parties are as follows:
2.1. The appellant is Casius Collin Wenzel Geiseb, a major male currently residing at 2210, Impala Close Street, Narraville, Walvis Bay, Republic of Namibia.
2.2. The first respondent is TransNamib Holdings LTD, a state-owned enterprise with limited liability incorporated in terms of the provisions of the National Transport Service Holding Company Act, 28 of 1998, with its principal place of business situated at 16 Professor Mburumba Kerina Street, Windhoek, Republic of Namibia.
2.3 The second respondent is Leah Shimbaba, an adult female employed as an Arbitrator at the office of the Labour Commissioner, with its place of business at 32 Mercedes Street, Khomasdal, Windhoek.
2.4 The third respondent is the Labour Commissioner, appointed in terms of the Act and having his place of business at 32 Mercedes Street, Khomasdal, Windhoek. No relief is sought against the third respondent, and he is cited herein for the interest he might have in the matter.
Only the first respondent opposed the appeal.
Background
The background facts I set out hereunder appear to be common cause between the parties.
The appellant was employed by the first respondent as a Senior Trains Operating Supervisor. On 29 May 2020, the appellant was involved in a physical altercation with his immediate supervisor. During the physical altercation, the appellant took to his supervisor with a broomstick which broke in the process. The parties were separated by their subordinates and sent home pending an internal investigation.
On 8 June 2020, the Senior Security Officer: Investigations recommended that a disciplinary inquiry be held against the appellant and his direct supervisor for contravening the first respondent’s Disciplinary and Grievance Policy by engaging in a physical altercation at the workplace.
On 23 June 2020, a disciplinary inquiry was held, and the appellant was charged with the following three charges of misconduct under the first respondent’s Disciplinary and Grievance Policy:
Charge one: Section 1.7.4 Disorderly Behavior and Relating Offences, sub-sec 1.7.4.4 Fighting: physical combat with another person.
Charge two: Section 1.7.1, Disobedience and Related Offences, sub-sec 1.7.1.4. Failure to adhere to rules, practices or regulations with regard to the specific job/position and;
Charge three: Section 1.6.1.2.6, Offences Relating to Control at Work, sub-sec 1.6.1.2.7. Negligent Damage to Company property: any act whereby an employee, through carelessness or negligence, causes or allows Company property to become damaged.
The appellant pleaded guilty to charges one and two, however, pleaded not guilty
to charge three.
On 24 June 2020, an internal disciplinary hearing was held, and the appellant was found guilty of all three charges. After that, the appellant appealed his dismissal to the Disciplinary Review Committee and on 6 July 2020, the Chief Executive Officer upheld the appellant’s dismissal and the appellant was dismissed from his employment.
Subsequent to the above, on 7 December 2020 and in terms of s 82(7) and s 86(1) of the Act, read with Regulations 16(1), 18(1) and 20(1) of the Labour General Regulations, the appellant lodged a complaint of unfair dismissal, unfair labour practice and unfair discrimination with the Office of the Labour Commissioner. The matter was set down for hearing on 19 February 2021 to determine whether or not the appellant’s dismissal was procedurally and substantively unfair.
Conciliation was initially set down to proceed on 19 February 2021. However, the applicant’s representative was unavailable to attend the conciliation and requested a postponement. The matter was postponed, and the conciliation proceedings took place on 23 April 2021. However, the issue remained unresolved as the conciliation was unsuccessful. The proceedings were further postponed to allow the parties to compile and submit a report in accordance with Rule 20 of the Rules relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner (ConArb Rules).
On 3 August 2022, the parties filed a rule 20 (2)1 report, and arbitration took place. The issues that the arbitrator needed to resolve were as follows:
Whether or not the respondent’s decision to dismiss the appellant was procedurally and substantively fair;
Whether or not the respondent’s decision to dismiss the appellant constitutes unfair labour practice.
Whether or not the respondent’s decision to dismiss the appellant constitutes a disparity of punishment imposed, compared to the final written warning sanction imposed on the appellant’s direct supervisor.
Whether or not the appellant is entitled to be reinstated by the respondent.
The findings of the arbitrator and the award
On 4 August 2022, the arbitration took place at the office of the Labour Commissioner in Walvis Bay. At the commencement of the arbitration proceedings, the representative of the appellant noted that while the appellant initially raised issues of unfair dismissal, unfair discrimination, and unfair labour practices, he ultimately decided to abandon the claims of unfair discrimination and unfair labour practices. The appellant has chosen to proceed only with the claim for unfair dismissal.
In her analysis of the evidence and arguments, the arbitrator (second respondent) stated as follows (which I replicate verbatim):
‘[53] In any case of dismissal it is the employer’s duty to discharge the onus that the dismissal was fair. The employer must prove that the dismissal was both procedurally and substantively fair. The dual requirements of substantive fairness and procedural fairness constitute the unbreakable unity of the test for fair dismissal. The result is that the fulfilment of one requirement does not satisfy the test.
[54] Based on the above, my findings is that the Applicant’s dismissal was both procedurally and substantively fair considering the following:
1. The applicant and Mr Karon had engaged in a physical altercation in which the applicant enthusiastically participated and both had been charged for such conduct;
2. The conduct in question was not defensive but aggressive in nature and the applicant hold the position of supervisory level placing much high obligation on his conduct towards his employer and his subordinate;
3. The applicant used the an (sic) object being the broom and was thus not an immediate reaction, but marked the commencement of the new chain of events linking the applicant to the sanction of dismissal;
4. The respondent had charged the employee with the same charges except that the applicant was charged with the 3rd charge which is damage to property. Therefore is clear that the two employees were equally to blame;
5. The applicant was not remorseful and the possibility that the applicant would commit the same offence again is virtually there as he keeps saying that he fought because of self-defence;
6. The respondent had proven on a balance of probability that, a disciplinary rule has been contrived, that the employee knew that such conduct could be the subject of disciplinary proceedings, and that applicant was not significantly prejudiced by the incorrect characterization.’
The arbitrator proceeded to issue the following award on 7 February 2023:
‘55. I accordingly order that;
(1) The dismissal of the applicant Casius Collin Wenzel Geiseb by the respondent TransNamib Limited was procedurally and substantively fair.
(2) The sanction of dismissal by the respondent is herewith upheld.
(3) No cost is ordered.’
Grounds of appeal
In Part A of his notice of appeal, the appellant noted the following:
‘TAKE NOTICE that CASIUS COLLIN WANZEL GEISEB (hereinafter called the Appellant) intends to appeal to this Court pursuant to Section 90 of the Labour Act, 2007 against the whole of the decision or order of the Respondents’ made on or about the 7th FEBRUARY 2023 and the arbitration award by MS LEAH SHUMBABA. . .’
The appellant further noted the following grounds of appeal:
‘1. The arbitrator erred in law and/or facts by misdirecting herself on the fairness, procedurally and substantively of the disciplinary hearing by confusing remarks about the disciplinary hearing with the arbitration, which most evidence by First Respondent base on criminal statement.
2. The Arbitrator erred in law/ and or on facts and or misdirected herself in finding on the material before her that the appellant is guilty of the allegations against him.
3. The Arbitrator erred in law/ and or not including closing arguments points in law, and/or requesting witness statements, and arbitrator mix labour dispute arguments with criminal statement.’
Opposition to the appeal
Points in limine
From the onset, the first respondent raised points in limine concerning the appellant’s notices of appeal contained in his form 11 dated 9 March 2023 and LC41 form dated 2 June 2023. The first respondent argued that the notices of appeal were defective.
The first respondent argued that the appellant’s notices of appeal were defective
and non-compliant with the ConArb Rules, for the following reasons:
The appellant’s grounds of appeal are vague and widely expressed, which renders them incapable of proper engagement by the first respondent.
The appellant’s grounds of appeal are conclusions drawn personally by the appellant from his reading of the arbitrator’s award without specifically identifying or referring to the specific portions of the arbitrator’s award, to enable the first respondent to identify the case it should meet.
There are no grounds or reasons on which the appellant based his grounds of appeal.
The appellant’s heads of arguments
The appellant raised a question of law in his heads of arguments and queried whether or not the appellant’s dismissal was substantively and procedurally fair and submitted that the court has a responsibility to consider whether the decision reached by the arbitrator is reasonable and such reasonableness is evaluated based on whether or a qualified arbitrator would have come to the same decision given the present facts.
In support of the above, the appellant referred the court to Namdeb Diamond Corporation v Mupetani,2 where the court held:
‘[50] From the above it must be clear that not all grounds of appeal raised in the current appeal are in terms of questions of law. It must further be understood that although the court in this instance might not agree with all the findings the arbitrator made, the test is not whether the court agree or not but whether the decision reached by the arbitrator regarding the fairness of the proceedings is one that a reasonable arbitrator could have reached. Again, it is not must have reach but could have reached. The court can only interfere with the decision of an arbitrator if the court is of the opinion that the arbitrator came to a conclusion which no other reasonable arbitrator could have come to and in this instance it is not the case’.
The appellant further referred the court to s 33 of the Act, which deals with unfair dismissal. This appellant reinforces that an employee’s dismissal must be both substantively and procedurally fair.
The appellant argues that the arbitrator failed to consider that the first respondent
did not apply the parity principle and thus renders the dismissal unfair. The appellant’s bone of contention is whether the final warning sanction issued to his supervisor, and the dismissal sanction issued to him violates the parity principle because both offences emanate from the same set of facts. The appellant contends that the above decision by the first respondent suggests inconsistent application of the disciplinary code. The appellant argues that applying a lesser sanction like a final warning would have sufficed and maintained consistency in the application of disciplinary measures.
The appellant reasons that although his supervisor instigated the fight, he only received a final written warning and this disparity in punishment forms the basis of the appellant’s claim for unfair treatment.
The appellant, with reference to ABB Maintenance Services Namibia (Pty) Ltd v Moongela,3 contended that the dismissal of an employee must be both substantially and procedurally fair. The appellant argued that consistency is a requirement of a fair dismissal, and the first respondent’s disciplinary sanctions demonstrate inconsistencies.
The appellant referred to numerous cases concerning the principle of consistency in disciplinary fairness. He maintained that the arbitrator concluded that both the appellant and his supervisor faced the same charges and, therefore, should have received equivalent sanctions. The appellant contended that his dismissal was both procedurally and substantively unfair. He highlighted that the arbitrator acknowledged both parties were charged with the same violations and pointed to paragraph 54.4 of the Arbitrator’s Award, where the arbitrator found:
‘The respondent had charged the employee with the same charges except that the applicant was charged with the 3rd charge which is damage to property. Therefore is clear that the two employees were equally to blame;’
In light of the above, the appellant contended that a reasonable arbitrator would not have upheld the inconsistencies by the first respondent in imposing different sanctions on persons charged with the same charges and therefore, the appellant requests the court to rectify the arbitrator’s decision.
The first respondent’s case
Points in limine
The first respondent referred the court to Bothma v Swakopmund Uranium (Pty) Ltd4 and argued that based on the aforementioned matter, the appellant’s notices of appeal constitute a nullity and should be dismissed.
The first respondent further referred the court to Namibia Dairies (Pty) Ltd v Alfeus and Another,5 where Parker J (as he then was) held:
‘[8] In both Form 11 and Form LC 41 an appellant is required to set out not only the questions of law at issue but also the grounds on which the appellant relies in contending that there is a question of law which, if the appeal court determined in the appellant’s favour, should lead to the court upholding the appeal on that question of law. What the appellant has done in the instant case is essentially to tell the court that the question of law is also the ground relied on by the appellant. To say that an arbitrator has ‘erred in law in finding that the first respondent’s dismissal was substantively unfair’ does not tell anyone, including the court and the respondents, the reason why or the basis upon which the appellant contends that the arbitrator erred in law, that is, the reason why or the basis upon which the appellant has raised the question of law. (See Shilongo.) All that the statement in item 1 (and the rest of the items) have done is to state a conclusion of the appellant. The appellant does not tell the court the basis on which or the reason why (that is, the ground) the court should hold for the appellant as respects the question of law raised. In sum, what I see is that the question of law also doubles as grounds. That is wrong: it does not satisfy the requirements of Form 11 and Form LC 41.
[9] A ‘ground of appeal’ in terms of rule 17(2) of the Labour Court Rules and rule 23(2)(d) of the conciliation and arbitration rules connotes the basis or the reason underlying an appellant’s contention that the arbitrator erred, or misdirected himself or herself, on the law; that is, the basis upon which or the reason why the appellant has raised the point of law. The ground is, thus, the basis or the reason upon which the court should determine the question of law raised by the appellant.’
The first respondent contended that with reference to the above matter and the ConArb Rules, the appellant’s notice of appeal is fatally defective and non-compliant with rule 17(2) and rule 23(2) of the aforementioned rules.
The first respondent further argued that the grounds of appeal are vague and expressed widely that they are incapable of proper engagement by the first respondent.
The first respondent further reasoned that the grounds of appeal are conclusions drawn by the appellant from his interpretation of the arbitrator’s award, which parts are not specifically identified or referred to, to enable the first respondent to know the case that it must meet.
The first respondent contended that s 89 (1) of the Act requires grounds of appeal to be based strictly only on questions of law alone, and in reading the appellant’s grounds of appeal, they are optional and defective.
On the merits
The first respondent submitted that the arbitrator correctly found that the appellant was guilty of the charges preferred against him and that the appellant’s dismissal was for a fair and valid reason due to the following reasons:
a) Labour disputes are decided on a balance of probabilities and not beyond a reasonable doubt, and the first respondent proved the charges preferred against the appellant.
b) In relation to charge one, the appellant +admitted to the physical altercation with
his supervisor in the parties’ joint rule 20 report.
c) In relation to the second charge, the appellant admitted that the first respondent’s
policy prohibits the acts of fighting and there is no exception to the rule. The appellant testified that he was aware that a rule prohibiting fighting existed and that if he contravened such a rule, he would be subject to disciplinary action.
d) In relation to the third charge, the appellant testified under cross-examination that
the broom broke as it was used in the physical altercation between himself and his supervisor.
e) The appellant’s third ground of appeal is unsound and confusing as the first respondent is unable to interoperate the appellant’s third ground of appeal and is unable to identify the basis upon which the appellant bases this ground of appeal, and the first respondent is unable to answer to the third ground of appeal.
f) If one accepts that the arbitrator did not include closing arguments of points of all and or witness statements and mixed labour dispute arguments with criminal statements, the same does not constitute a point in law upon which the appellant can base his grounds of appeal.
The first respondent further argued that it appears ex facie the arbitrator’s award that the arbitrator considered and analysed the evidence adduced during the arbitration proceedings, the respective closing arguments and the law therein contained.
Furthermore, the first respondent argued that there is no evidence either in the transcribed record or the arbitration award indicating that the arbitrator mixed or confused labour dispute arguments with criminal statements.
Therefore, in amplification of the above, the first respondent opined that they are satisfied that the appellant’s dismissal was substantively and procedurally fair and, therefore, seeks an order dismissing the appeal with costs.
Supplementary heads of argument
The appellant filed ‘supplementary’ heads of arguments, without leave, I might add, seemingly to address the points in limine raised by the first respondent. The first respondent, in turn, felt obliged to respond to the appellant’s supplementary heads of argument. That, in my view, is labour lost as there is no basis on which this court will consider the further or supplementary heads of argument.
No leave was sought or granted to file the supplementary heads of argument.
Issues for determination and discussion
I will first address the preliminary points raised by the first respondent.
Points in limine
The appellant raised three points in limine, which, in my considered view, can be discussed as one as it all boils down to one thing, and that is whether the appellant’s notice of appeal was defective or not.
Unengu AJ in Tsuseb v Coca Cola Namibia Bottling Company (Pty) Ltd,6 contended that:
‘… In appeal proceedings, the notice of motion must contain and set out clearly and specifically the grounds (reasons) upon which the appellant relies why the award should be set aside…’
An appeal is lodged in terms of s 89(1)(a) of the Act, on questions of law alone.7 The appellant lodged his application in terms of s 90 of the Act, which provides:
‘Enforcement of awards
A party to an arbitration award made in terms of this Part may apply to a labour inspector in the prescribed form requesting the inspector to enforce the award by taking such steps as are necessary to do so, including the institution of execution proceedings on behalf of that person.’
The appellant’s notice of appeal is not only brought in terms of the wrong section
of the Act, being s 90 instead of s 89 but also falls short in complying with the requirements of s 89 (1) (a). Section 89(1)(a) of the Act states that:
‘A party to a dispute may appeal to the Labour Court against an arbitrator’s award made in terms of Section 86, except an award concerning a dispute of interest in essential services as contemplated in section 78 –
(a) on any question of law alone; or
(b) in the case of an award in a dispute initially referred to the Labour Commissioner in terms of section 7(1)(a), on a question of fact, law or mixed fact and law.’ Underlined for my emphasis.
If the appellant’s appeal against the arbitral award was correctly noted in terms of s 89 of the Act, which it was not, there had to be compliance with not only rule 17 of the Labour Court Rules but also rule 23 of the ConArb Rules.
The appellant’s dispute was referred for conciliation proceedings in terms of s 82(7) and s 86(1) of the Act, read with Regulations 18(1) and 20(1) of the Labour General Regulations. When the dispute could not be resolved through conciliation, the matter was referred for arbitration. The dispute was not initially referred to the Labour Commissioner in terms of s 7(1)(a) of the Act, and therefore, s 89(1)(b) is not applicable under the current circumstances. The appellant was required to comply with the requirements as set out in s 89(1)(a), and his appeal was to be brought on questions of law alone.
If one considers Form 11 and the LC 41 filed by the appellant, it is clear that the appellant falls short on the questions of law as none were raised.
In both Form 11 and Form LC 41, an appellant is required to set out the grounds of appeal, but Form LC 41 goes further than that, as the appellant is required to set out the questions of fact (only in the case of a dispute involving the Fundamental Rights and Protections) or law appealed against in the arbitrator’s award on which the appellant relies in contending that there is a question of law which, if the appeal court determined in the appellant’s favour, should lead to the court upholding the appeal on that question of law.8
In applying the Namibia Dairies (Pty) Ltd vs Alfeus judgment9 to the current facts, I am not entirely clear on whether the appellant implies that the question of law is also the grounds of appeal relied on by the appellant, i e the question of law also doubles as grounds of appeal. That would, however, be wrong, as it does not satisfy the requirements of Form 11 and Form LC 41.
The appellant stated in his notice of appeal that he takes issue with the whole judgment or order, and although he listed three grounds of appeal, it is confusing and contrary to the appellant’s contentions. In this regard, I must refer to what the court stated in President of the Republic of Namibia v Vlasiu10 when O’Linn J held that, in circumstances where a party’s right to appeal is restricted to questions of law and that party’s notice of appeal purports to be an appeal against the “whole of the judgment and order as to cost” such notice of appeal is defective.
The grounds of appeal are conclusions drawn from the findings of the arbitrator and it is not clear what the basis of the grounds of appeal are. Nor is it clear which part of the order or arbitration award he takes issue with.
The first respondent raised this point pertinently that the appellant’s grounds of appeal are conclusions drawn by the appellant from his interpretation of the arbitrator’s award, which parts are not specifically identified or referred to, to enable the first respondent to know the case that it must meet. I must agree with the first respondent in this regard.
There was an attempt during oral argument by the appellant’s legal representative to rescue the defective notice of appeal when he contended that relying on s 90 for purposes of the appeal was an error. That much is clear, but the papers of the appellant were never amended to correct the purported mistake.
Unengu AJ in Tsuseb11 supra referred to Shoprite Namibia (Pty) LTD v Faustino Moses Paulo12 and quoted Parker J (as he then was):
‘It is trite that a notice of appeal must specify the grounds of appeal and the notice must be carefully framed for an appellant has no right in the hearing of the matter to rely on any grounds of appeal not specified in the notice of appeal.’
The appellant’s heads of argument are not based on the notice of appeal
In its heads of argument, the first respondent raised a further point in limine pertaining to the appellant’s heads of argument. It was argued that in the appellant’s heads of arguments, the appellant raised issues which were not specified in the notice of appeal. The issues concerned are the parity principle and the issue of law which were only raised in the appellant’s heads of arguments.
I already discussed the appellant’s failure to raise the issues of law in his notice of appeal and will not repeat same. The appellant did not raise non-adherence to the parity principle as a ground of appeal and, therefore, need not be considered for purposes of this discussion. As a result, I adopt the stance of my Learned Bothers that a notice of appeal must be carefully framed because an appellant will not be allowed to rely on any grounds of appeal not specified in the notice of appeal.
In conclusion, I find that the notice of appeal is defective because it sets out the
appellant’s conclusion as to the arbitrator’s finding that the arbitrator erred in law/ and or on facts and or misdirected herself in finding on the material before her that the appellant is guilty of the allegation against him and that the arbitrator did not include closing arguments points in law and/or requesting witness statements, and mixing labour dispute arguments with criminal statements but it does not put forth the basis or reason for the appellant’s conclusion.
Accordingly, I uphold the first respondent’s points in limine. Although the defective notice of appeal is dispositive of the matter, for completeness's sake, I will briefly address the merits of the appellant’s case.
Merits of the appellant’s case
It is common cause that the appellant was dismissed. Dismissal must be substantially and procedurally fair. Section 33 of the Act sets out the circumstances under which an employer may dismiss an employee, that section amongst other things, reads as follows:
‘33 Unfair dismissal
(1) An employer must not, whether notice is given or not, dismiss an employee-
(a) without a valid and fair reason; and
(b) without following
(i) the procedures set out in section 34, if the dismissal arises from a reason set out in section 34(1); or
(ii) subject to any code of good practice issued under section 137, a fair procedure, in any other case.’
There are no allegations of procedural unfairness, and I will thus not address the requirements in that regard.
This court, in Dominikus v Namgem Diamonds Manufacturing,13 dealt with the principle of substantive fairness:
‘[21] 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.’
The appellant seems to aver that dismissal was not substantially fair. The first ground of appeal avers that ‘the arbitrator erred in law and/or facts by misdirecting herself on the fairness, procedurally and substantively of the disciplinary hearing by confusing remarks about the disciplinary hearing with the arbitration, which most evidence by first respondent base on criminal statement.’(emphasis supplied)
It would appear that substantive fairness, or lack thereof, relates to the ‘confusing remarks about the disciplinary hearing’ and evidence based on a criminal statement. Not even by a stretch of the imagination is it clear what the appellant is referring to from the papers. The arbitrator never dealt with a criminal statement.
The arbitrator, in her comprehensive discussion on the issues of substantive and procedural fairness, dealt with the issues raised by the appellant in support of his contention that the dismissal was unfair. Amongst others, she discussed the parity principle in her discussion on substantive fairness as well as the appellant’s version that he acted in self-defence and held that the argument advanced in that regard by the appellant did not support his case.
Unfortunately, the remaining two grounds of appeal make even less sense than the first grounds of appeal.
Having carefully considered the arbitration award and the arguments advanced, I must conclude that there are no arguments advanced on behalf of the appellant or anything evident from the record as to why the court must interfere with the decision of the arbitrator. The reasoning was sound, and even if this court did not hold the same view (which is not the case), the finding can, on no construction, be found to be perverse.
Costs
On the issue of costs, s 118 of the Act14 reads as follows:
‘Despite any other law in any proceeding before it, the Labour Court must not make an order for costs against a party unless that party has acted in a frivolous or vexatious manner by instituting, proceeding with or defending those proceedings.’
Having considered s 118, I will not make an adverse cost order against the appellant.
I make the following order:
The appeal is dismissed.
No order as to costs.
________________________
J S Prinsloo
Judge
APPEARANCE:
Appellant: M Ikanga
Of M. Ikanga & Associates Inc.
Windhoek
First Respondent: N Knittle
Of LorentzAngula Inc.
Windhoek
1 Rules relating to the conduct of conciliation and arbitration before the labour commissioner: Labour Act, 2007 (Act 11 of 2007).
2 Namdeb Diamond Corporation v Mupetani (HC-MD-LAB-APP-AAA 29 of 2020) [2021] NALCMD 9 (16 March 2021) at para 50.
3 ABB Maintenance Services Namibia (Pty) Ltd v Moongela (11 of 2016) [2017] NALCMD 18 (7 June 2017).
4 Bothma v Swakopmund Uranium (Pty) Ltd (HC-MD-LAB-APP-AAA-2018/00048) [2019] NALCMD 9.
5 Namibia Dairies (Pty) Ltd v Alfeus and Another (4 of 2014) [2014] NALCMD 36 (18 September 2014) at paras 8-9.
6 Tsuseb v Coca Cola Namibia Bottling Company (Pty) Ltd (LC 106/2015) [2016] NALCMD 39 (06 October 2016) at para 32.
7 Ibid at para 31.
8 The Minister of Labour, Industrial Relations and Employment Creation v Panduleni (HC-MD-LAB-APP-AAA-2021/00004) [2021] NALCMD 45 (1 October 2021) at para 16.
9 Namibia Dairies (Pty) Ltd v Alfeus and Another (4 of 2014) [2014] NALCMD 36 (18 September 2014) at para 9.
10 President of the Republic of Namibia v Vlasiu 1996 NR 36 (LC) 42A.
11 Ibid at para 34.
12 Shoprite Namibia (Pty) LTD v Faustino Moses Paulo Case No. LCA 02/2010
13 Dominikus v Namgem Diamonds Manufacturing (LCA 4 of 2016) [2018] NALCMD 5 (28 March 2018).