15
REPUBLIC OF NAMIBIA
LABOUR COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
JUDGMENT
Case No: HC-MD-LAB-APP-AAA-2024/00034
In the matter between:
Jeanetta Abrahams Appellant
and
The Office of the Labour Commissioner First Respondent
Holger Sircoulumb N.O Second Respondent
Plastic Packaging (Pty) Ltd Third Respondent
Neutral Citation: Abrahams v The Office of the Labour Commissioner (HC-MD-LAB-APP-AAA-2024/00034) [2024] NALCMD 46 (06 November 2024)
Coram: NDAUENDAPO J
Heard: 06 September 2024
Delivered: 06 November 2024
Flynote: Labour Law – Appeal in terms of s 89(2) of the Labour Act – Prescription in terms of s 86(2)(b) – Termination of employment contracts – No evidence was adduced before the arbitrator – Appeal succeeds.
Summary: This is an appeal in terms of s 89(2) of the Labour Act, 11 of 2007. The Appellant made an application to the Office of the Labour Commissioner for severance payment from the year 1987 to 2023. The appellant was then offered a number of fixed-term contracts, ending in December 2023, with that having been the last fixed-term contract. The appellant argued that she regarded her period of employment for the entire period of 1987 to 2023, as a continued period and that the termination of her permanent contract of employment, at the date of turning 60 and the subsequent fixed-term contracts are seen as one period. Therefore, she seeks severance payment from 1987 to 2023.
The legal representative of the third respondent raised points in limine, challenging the jurisdiction of the arbitration proceedings to continue under the appointed arbitrator. The second respondent ruled against the Appellant and effectively dismissed her claim.
Held: no evidence was adduced at the arbitration proceedings and the arbitrator made a finding based on written arguments submitted by the parties and those submissions together with the award are part of the record filed, as a result the record is complete.
Held that: it is common cause that the parties did not testify at the arbitration proceedings. No evidence was adduced at the hearing and the arbitrator based his findings on written submissions submitted by the parties. Both counsels were ad idem that it was irregular for the arbitrator to make a finding without hearing evidence from the parties and witnesses. I agree thereto.
Held that: in the result the appeal succeeds.
ORDER
Appeal succeeds. The arbitration award dated 13 May 2024 is set aside.
The matter is remitted back to the Office of the Labour Commissioner to appoint a new arbitrator to conduct the arbitration de novo and to deal with the points in limine and further deal with the dispute.
There is no order as to cost.
RULING
NDAUENDAPO J:
Introduction
[1] This is an appeal in terms of s 89(2) of the Labour Act, 11 of 2007 as amended (‘the Act”) read with rule 17 of the Labour Court Rules GN-279-2008 against the entire award of the arbitrator, Holger Sircoulomb, granted on 13 May 2024.
Background
[2] Ms Jeanetta Abrahams (“the Appellant”) was employed by Plastic Packaging (Pty) Ltd (the “Third Respondent”), a private company with limited liability registered in accordance with the applicable law of Namibia, from 1978 until 2017 when she reached the retirement age of 60. The appellant was then offered a fixed employment, which ended in 2023. Following the termination of the fixed employment contract, she made an application to the Office of the Labour Commissioner for severance payment from the year 1987 to 2023. Following the submission of LC 21 form by the appellant on 31 January 2024, the first arbitration meeting was held on 27 February 2024. At this meeting the representative of the third respondent submitted that they had not been made aware of the set-down of the meeting and both the appellant and the representative of the third respondent agreed to have the proceedings postponed and attempted to resolve the matter amongst themselves.
[3] In the absence of a voluntary settlement, the arbitration was rescheduled for 27 April 2024. During the second arbitration meeting the parties exchanged documents relating to withdrawal of pensionable benefits in 2015 and the subsequent retirement of the Appellant in 2017, when she attained the age of 60.
[4] The appellant was offered a number of fixed-term contracts, ending in December 2023, with that having been the last fixed-term contract.
[5] The appellant argued that she regarded her period of employment for the entire period of 1987 to 2023, as a continued period and that the termination of her permanent contract of employment, at the date of turning 60 and the subsequent fixed-term contracts are seen as one period. Therefore, she seeks severance payment from 1987 to 2023.
[6] The legal representative of the third respondent raised points in limine, challenging the jurisdiction of the arbitration proceedings to continue under the appointed arbitrator. The parties agreed they would submit their arguments in writing. The third respondent submitted their heads of arguments on 08 April 2024, the appellant submitted her heads of arguments on 15 April 2024 and the third respondent replied thereto on 17 April 2024.
[7] The second respondent ruled against the appellant and effectively dismissed her claim for the following reasons:
“(a) Firstly, the applicant’s permanent contract of employment ended in November 2017, after she reached the age of retirement age of 60, as per the contractual agreement.
(b) The applicant was re-employed on, what is termed a fixed term contract in March 2018.
(c) I find that despite the submissions that the applicant’s employment period was regarded by her as continuous, I cannot agree. There was a definite break in employment of four months, which employment was thereafter renewed with the stated fixed term contract. There was a definite end to her permanent contract in November 2017, followed by a definite beginning of a fixed-term contract in March 2018.
(d) Even if the ruling in the Gibeon case were to be considered, I find that the applicant’s plea for severance pay for the period of her permanent employment, i.e. 1987-2017, would have prescribed in line with s 86(2)(b) and as a conciliator/arbitrator, I would be exceeding my powers of authority if I were to entertain such referral.
(e) With regard to the period of March 2018, the first fixed-term contract of employment, to December 2023, the end of the last fixed-term contract, I find I must consider judicial precedence, in particular the matter of John and Penny Group (Pty) Ltd v Gerhardus Gabriel and 5 others, where the court held that the Labour Act does not entitle an employee who has not been dismissed to payment of severance. Further, that an employee whose contract is terminated by effluxion of time is not dismissed as contemplated in section 35(1)(b) and thus not entitled to severance pay.
(f) Having found the above, I must add, that in the absence of the further detailed evidence, I am not sure whether the various fixed-terms contracts had a break of service in between. It may be that the Applicant could have been placed under the reasonable apprehension of a continued contract of employment where such fixed-term contracts followed without a break in service. In my mind this would, however, amount to a different referral with a more specific time line of employment and claim to severance pay in terms of section 35(1)(c).
(g) I would, however, once again be acting outside my powers of authority if I were to express myself in this regard with a ruling.”
[8] The appellant, aggrieved by the decision of the second defendant and pursuant to s 89(2) of the Act, approached this court seeking an order for the setting aside of the award on 12 June 2014.
The appeal
[9] The Appellant seeks the following relief:
‘1 the appeal is upheld.
2. The order of the Arbitrator dismissing the matter dated 12 May 2024 is set aside and replaced with the following order.
3. The arbitration award dated 13 May 2024 is set aside.
4. The matter be remitted back to the Office of the Labour Commissioner to appoint a new arbitrator to conduct the arbitration de novo and to deal with the points in limine and further deal with the dispute.
5. Further and/or alternative relief.’
6. No Cost order.
Grounds of appeal
[10] ‘1. The Arbitrator erred in law by finding that the “Appellant’s plea for severance pay for the period of her permanent employment i.e. 1987 – 2017 would have prescribed in line with section 86(2)(b) and as a conciliator/arbitrator, I would be exceeding my powers of authority if I were to entertain such referral”. The Arbitrator had no evidence before him to support such a finding. The LC21 completed by the Appellant indicated the contrary, stipulating the date the dispute arose surrounding severance pay was 31/12/2023. Therefore, the Arbitrator erred in law by finding that the plea for severance pay had prescribed despite there being no evidence when the severance pay was claimed by the Appellant and when the 3rd respondent refused to pay such severance pay resulting in a dispute to arise surrounding the severance pay.
The Arbitrator erred in law by failing to consider the once and for all rule and finding that ‘in my mind this would, however, amount to a different referral with a more specific timeline of employment and claim to severance pay in terms of section 35(1)(c). I would however be acting outside the powers of my authority if I were to express myself in this regard’. The parties and the subject matter (severance pay) were the same, therefore, the Arbitrator erred in law when he found that the Appellant should have had a different referral.
The Arbitrator erred in law by making the finding that there had been a ‘definite end to her permanent employment contract in 2017” without any oral evidence as to whether there was an end to the Appellants permanent employment despite the stance of the Appellant that the Appellant continued her employment without any break until it ended in 2023. Further, the Arbitrator found that he needed more detailed evidence therefore he erred in law when he did not conduct preliminary issue raised by the Respondent which form the foundation of this matter.’
Grounds of opposition
The third respondent opposes the application for the following reasons:
‘1. The award was not a final determination of the Appellant’s dispute and consequently not appealable. The Appellant had the option to reinstitute the dispute referral for arbitration on improved allegations.
2. The appeal is opposed in that, the record does not contain any evidence of what facts were presented under sworn testimony at the arbitration proceedings. Ground 1 relates to error in fact and not on a question in law only.
3. The Record of the Arbitration proceedings pertaining to what transpired at the arbitration proceedings:
Consists of handwritten notes that is not typewritten;
is copied on landscape and not A4 as required by the directives and rules;
does not reflect what transpired in a clear and understandable manner;
contains no evidence under oath or agreement on facts;
Consequently, the honorable Court is not in a position to consider the appeal as it is presented.
The Record appears to be incomplete and not correct and not in line with the directives and rules pertaining to the preparation of a record for appeal before the honorable Labour Court’s purposes.
The arbitrator was correct when it concluded that the Appellant should have initiated a different referral. There no evidence on which the “once and for all rule” could have been based.
It was the Appellant who had the onus to place evidence before the Arbitrator pertaining to the claim of severance pay. In any event based on the third ground of appeal, it constitutes an error on fact, alternatively, a matter which had to be challenged via a review application as it is not an error in law alone.
An error pertaining to lack of evidence is an error on fact and not on law alone.’
Appellant’s submissions
Ad ground 1
[12] Mr Skeepers, the appellant’s legal practitioner, argued that it is common cause that the appellant worked as an employee of the third respondent from 1987 and retired at the age of 60 in 2017. She was then offered a number of fixed-term contracts of which the last fixed-term contract ended in December 2023.
[13] He submitted that, the second respondent stated that the appellants plea for a severance pay for the period of her permanent employment (1987-2017) prescribed in terms of Section 86(2)(b). Though the second respondent raised section 86(2)(b) as a point of law and raised prescription. He argued that the second respondent failed and/or erred in applying the law. There was not a factual enquiry despite the appellant and third respondent having taken different stances on the facts and when the dispute arose.
[14] Mr Skeepers further submitted that there is no evidence that there was indeed a dispute in 2017 about severance pay. If there was no dispute, then it cannot be argued that the dispute prescribed in terms of s 86(2)(b) of the Labour Act. The arbitrator therefore, erred in law by finding that there was a dispute in 2017 and that the Appellant’s claim had prescribed in terms of s 86(2)(b) of the Labour Act.
Ad ground 2
[15] Mr Skeepers, submitted that the second respondent stated that ‘in my mind this would, however, amount to a different referral with a more specific timeline of employment and claim to severance pay in terms of section 35(1)(c). I would however be acting outside the powers of my authority if I were to express myself in this regard’.
[16] It is the appellant’s argument that, the second respondent failed to consider the once and for all rule. This issue cannot be heard in a different referral due to the fact that the parties involved are the same and the subject matter, which is the severance pay, is the same. The duration in question is equally of such a nature that it involved the entire claim, which the appellant made. Therefore, the claim in terms of section 35(1)(c) should also have been heard in one setting. The Arbitrator therefore, erred in law when he found that in his mind it would amount to a different referral with a more specific timeline of employment and claim to severance pay in terms of section 35(1)(c) and further that, he would be acting outside the powers of his authority if he were to express himself in this regard.
[17] He argued that, there is no reason the rule should not be applied in labour matters. The failure by the arbitrator to apply the once and for all rule amounts to an error in law and therefore, should not be allowed to stand.
Ad ground 3
[18] Mr Skeepers argues that on a proper analysis of the record, it is clear that the second respondent failed to hold a preliminary issue hearing to determine the issues of prescription and jurisdiction.
[19] He states that the third respondent made the conclusion that there was a ‘definite end to the appellants permanent employment contract in 2017’.
[20] He argues that this conclusion was reached without having heard any oral evidence from the appellant. The arbitrator conceded that he indeed required further evidence. The law thus has made provisions for preliminary hearings by arbitrators to enable them to properly deal with preliminary points properly. Upon coming to this determination, the arbitrator must have allocated a date for the hearing of the preliminary points and must have notified the parties of the date, time and place of the hearing of the application on Form LC 44. It is submitted that this is a mandatory provision and as such, the second respondent must have implemented this procedure in terms of Rule 28 of the Con/Arb Rules.
[21] He further submitted that on the strength of the Cloete v Bank of Namibia judgment that such a hearing was not only necessary but same was apposite, in the circumstances of this case. The Arbitrator therefore, erred in law in failing to hold a preliminary hearing and further erred in law by making a ruling despite acknowledging he needed further detailed evidence.
[23] Mr Skeepers argues that the second respondent erred in law in making the determination that the matter has prescribed by applying the wrong legal principles. The second respondent erred in law by failing to apply the once and for all rule. He submitted the second respondent has made serious errors in law and therefore, the appeal should succeed.
Third Respondent’s submissions
Ad Ground 1
[24] Mr De Beer submitted that, the appellant based its allegation that the Arbitrator had no evidence before him and refers to the completed LC 21 Form as evidence. He submits that an averment made in the initiating document, namely the LC 21 form is not per say evidence. It was not confirmed under oath, was not tested under cross-examination and the raising of the points in limine by the Third Respondent is a clear indication that the content is disputed.
[25] He submitted that, the first ground cannot succeed since the “evidence” was not adduced under oath. The arbitrator alerted the appellant that there is no sufficient information contained in the initiating documents and since the Appellant had the onus to prove, she had the opportunity to start afresh with another dispute referral.
Ad Ground 2
[26] Mr De Beer argued that, in respect to the second ground, it is vague and confusing. Reference is made to a “once and for all rule”, in quotation marks which it seems, is a question of law but no basis or background is provided on which such rule, is indeed a rule applicable is based. Therefore, this ground cannot succeed.
Ad Ground 3
[27] Mr De Beer argued that, the third ground is a factual error, in that there is no question of law that needs to be answered. He states that the principles pertaining to severance pay is clear. It is a question of the conclusion of the facts that seems to be the concern of the Appellant.
[28] He argues that, if it’s not an error of fact that was in fact no evidence submitted under oath. He states that the arbitrator concluded that, in the absence of any evidence that would support the apprehension of continued employment until December 2023 a factual conclusion he was not in a position to conclude the severance is to be paid. He states that, the Arbitrator did suggest that a different referral with more specific time line of employment may result in a different conclusion but not on the evidence presented.
[29] Mr De Beer stated that there was no evidence adduced by the appellant that she was entitled to severance pay after 12 months continuous service as envisaged in s 35(1) Labour Act.
[30] Mr De Beer submitted that, in the event the court accepts that the written arguments constituted sufficient evidence of the Arbitrator to conclude that he did not have jurisdiction, then it must be accepted that the Appellant retired in 2017, which means that the time period for dispute referral has lapsed in terms of s 86(2)(b) of the Labour Act in 2018, leaving the position that a claim for severance pay prescribed and the Arbitrator would not have jurisdiction to adjudicate the dispute on the documents before the Arbitrator. A claim for severance pay at that time had to be instituted within one year after the dispute arose.
[31] Mr De Beer submitted that, should an employee retire from permanent employment and the employee has reached the age of 65 before that retirement, or unfairly dismissed (which is not the case in this instance) and the employee was in employment for at least 12 months, and if the employee was in employment for at least 12 months, and if the employee, hypothetically, was not paid severance pay in terms of s 35 of the Labour Act, such an employee has to institute such a claim within one year of the retirement. If not, the claim prescribed.
[32] Mr De Beer, further cited the cases of John and Penny Group (Pty) Ltd v Gerhardus Gabriel & 5 others (LCA 37/2016) [2016] NALCMD 44 (18 November 2016); Overberg Fishing (Pty) Ltd v Alfonso Villar Docampo ( LCA 51/2010) [2011] NALC 17 (5 July 2011), arguing that an employee who has retired and later been employed again on a temporary basis which employment terminated by lapse of time is not entitled to severance pay.
[33] He submitted that the permanent employment of the appellant came to an end in November 2017 when she turned 60 years and is compulsory retirement in terms of the employment agreement.
[34] Mr De Beer further raised issue with the fact that the record of the arbitration proceedings was not on form A4 nor was it typed. It does not contain any transcription of what the parties said or presented during the arbitration proceedings and it is not complete.
[35] Based on the arguments presented the appeal must be struck and must fail.
Issues for determination
[36] The following issues are dispositive of the appeal:
(a) Is the record complete?
(b) Was the arbitrator correct to make a finding on the severance dispute without hearing oral evidence?
Discussion
Dispute regarding the record
[37] No evidence was adduced at the arbitration proceedings and the arbitrator made a finding based on written arguments submitted by the parties and those submissions together with the award are part of the record filed, as a result the record is complete.
[38] It is common cause that the parties did not testify at the arbitration proceedings. No evidence was adduced at the hearing and the arbitrator based his findings on written submissions submitted by the parties. Both counsels were ad idem that it was irregular for the arbitrator to make a finding without hearing evidence from the parties and witnesses. I agree.
[39] In the result, the appeal succeeds.
Order
[40] In the result, I make the following order:
Appeal succeeds. The arbitration award dated 13 May 2024 is set aside.
The matter is remitted back to the Office of the Labour Commissioner to appoint a new arbitrator to conduct the arbitration de novo and to deal with the points in limine and further deal with the dispute.
There is no order as to cost.
_____________
N Ndauendapo
Judge
APPEARANCES APPLICANT: Skeepers Of Brockerhoff and Associates Legal Practitioners, Windhoek. RESPONDENT: De Beer Instructed by Honhe and Co, Windhoek.