REPUBLIC OF NAMIBIA
LABOUR COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: HC-MD-LAB-APP-AAA-2023/00055
In the matter between:
DESMOND NICODEMUS BASSON APPELLANT
and
KEETMASHOOP MUNICIPALITY 1ST RESPONDENT
JOSEPH WINDSTAAN NO 2ND RESPONDENT
THE LABOUR COMMISSIONER 3RD RESPONDENT
Neutral Citation: Basson v Keetmanshoop Municipality (HC-MD-LAB-APP-AAA-2023/00055) [2024] NALCMD 54 (5 December 2024)
Coram: MASUKU J
Heard: 18 September 2024
Delivered: 5 December 2024
Flynote: Labour Law – Unfair dismissal – Effective date of dismissal, whether it is upon dispatch of letter of dismissal or receipt thereof by the employee.
Summary: The appellant was employed by the first respondent as the chief executive officer on a contract of 5 years. Upon expiry, they sent him another letter offering another contract of 5 years, which appears not to have been signed although the appellant appears to have proceeded with his work. The respondent thereafter dispatched a letter to him indicating that they had terminated his employment because no formal contract had been signed between the parties. The appellant lodged a dispute both of unfair dismissal and unfair labour practices, which served before the arbitrator. The arbitrator ruled that the unfair dismissal in question would have taken place on 8 July 2022, when the letter dismissing the appellant was sent. He effectively came to the view that there was no dismissal on the date alleged by the appellant in his referral, namely, 11 July 2022 and thus dismissed the appellant’s claim.
Held that; in matters of dismissal, the pertinent date that determines when the dispute arose, is not when the employer sent the letter of dismissal but rather when the employee receives the letter and forms the view that the dismissal is unfair. It is thus on the receipt of the letter that the dispute arises.
Held that; the principle of fairness requires that the employee must receive the letter of dismissal so that there is certainty regarding the question when dismissal occurred.
Held that; arbitrators must ensure that justice is served and should not adopt fastidious points of law when dealing with labour disputes.
Award issued by arbitrator set aside.
ORDER
The appellant’s appeal is upheld.
The arbitrator’s award dated 15 June 2024, dismissing the appellant’s referral, be and is hereby set aside.
The matter is referred back to the arbitrator to proceed with dispute on the merits.
There is no order as to costs.
The matter is removed from the roll and is regarded as finalised.
JUDGMENT
MASUKU, J:
Introduction
The question falling for determination in this judgment is whether an award, issued by an arbitrator in this matter, dated 15 June 2023, stands up to judicial scrutiny. The applicant has approached this court, submitting vociferously that the award violates the applicable legal principles, as well as stands in stark contravention of the law applicable to when a dispute of unfair dismissal must be reckoned to run.
The all-important question is thus whether the applicant stands on firm legal ground, such that his appeal ought to be upheld or it lacks merit and must thus be dismissed. An important issue to consider, is that neither respondents has opposed the appeal. In point of fact, the first respondent, Keetmanshoop Municipality, filed a notice to abide the court’s judgment, dated 27 June 2024. This fact speaks volumes about the prospects of success of the appellant’s appeal.
The parties
The appellant is Mr Desmond Nicodemus Basson, an adult male who was employed by Keetmanshoop Municipality as its chief executive officer. The first respondent is Keetmanshoop Municipality, a local authority set up in terms of the Local Authorities Act 23 of 1992. The second respondent is Mr Joseph Windstaan NO, an adult male appointed as an arbitrator by the office of the Labour Commissioner. The third respondent is the Labour Commissioner, duly appointed as such in terms of the Labour Act 11 of 2007.
Both the second and third respondents were cited in their official capacities for formalities’ sake in appreciation of whatever interest they may have in the proceedings and the outcome. For all intents and purposes, the effective respondent in this matter, is the Keetmanshoop Municipality, which as I have stated, decided to abide by the decision of the court.
Mr Tjizo represented the appellant in this matter, whereas Mr Vogel appeared on a watching brief. The court records its appreciation to both counsel, especially Mr Tjizo, for the assistance he duly rendered in the determination of this matter. Mr Vogel, must also be commended for acting properly as an officer of the court. There is nothing more concerning and unsettling to a court than when counsel stands up in court to defend the indefensible, thus unnecessarily wasting judicial resources and time. It is at times proper for counsel to do the right thing and advise a client properly so as not to waste the judicial time and resources but also not to put a client without a sustainable case through the judicial process, with the client concomitantly incurring costs that accompany such fruitless endeavours.
In view of what has been stated above, I will refer to Mr Basson as ‘the appellant’ and to the Keetmanshoop Municipality as ‘the respondent’. Where it becomes necessary to refer either to the arbitrator or the Labour Commissioner, each one will be referred to as such. Where the necessity arises to refer to the appellant and the respondent jointly, they shall be referred to as ‘the parties’.
Background
[7] The facts giving rise to this appeal appear to be generally common cause. They acuminate to the following: The appellant was appointed by the respondent as its chief executive officer, on a fixed term contract of five years. That term ended in October 2019. At the expiry of his contract, an extension was granted to him for a further five year term, ending on 31 December 2024.
[8] The appellant contends that he was offered a copy of the proposed contract extension for his comments in March 2022, which he gave but the contract was never returned to him for signature. The respondent thereafter terminated the appellant’s contract during its first ordinary council meeting held on 8 July 2022. The appellant was informed of the decision to terminate his contract via a letter dated 8 July 2022, which he says he only received on 11 July 2022. He is not contradicted on that score.
[9] Disenchanted with those developments, the appellant approached the offices of the Labour Commissioner and there lodged a dispute of unfair dismissal and unfair labour practices on 12 September 2022. The dispute eventually served before the arbitrator, who, after considering the parties’ cases, dismissed the appellant’s matter, holding, as he did that there was no dismissal of the appellant by the respondent on 11 July 2022, as alleged by the appellant. It is that finding that is mother of the present appeal.
[10] Clearly dissatisfied with the award issued by the arbitrator, the appellant then approached this court on appeal, seeking a reversal of the award and requiring a finding that he had been unfairly dismissed by the respondent on 12 July 2022, as he alleged. That is the question for determination before this court, ie, whether the arbitrator was correct in his conclusions and findings that there was no case of unfair dismissal made out as alleged in the appellant’s referral to the Labour Commissioner.
The grounds of appeal
[11] Shorn of all the frills, the appellant submitted that the arbitrator erred in his finding that there was no dismissal that occurred on 11 July 2022. The arbitrator accordingly held that he had no jurisdiction to entertain the dispute, which the appellant submits, was an incorrect and unsustainable finding in law.
[12] The appellant, in essence, applied that the award be set aside and that the court upholds the appeal, with the result that the case be remitted to the arbitrator to deal with dispute on the merits.
Determination
[13] The case before court raises the question whether or not there was a dismissal in this case, on 11 June 2022 or not. It would seem to me that if the court returns a finding that there was a dismissal on 11 June 2022, that would indicate that the award issued by the arbitrator, is unsustainable and must, for that reason be set aside. In order to come to a firm view on the correctness of the arbitral award, it is necessary that an in-depth consideration of the issues is undertaken at this juncture. I proceed to do so.
[14] In his summary of dispute, the appellant alleged a number irregularities leading to his dismissal. First, it was his case that he was not, at any stage, subjected to a disciplinary hearing, before the dismissal. Furthermore, it was his contention that in terms of s 29 of the Local Authorities Act, the disciplinary process relating to him, should have been carried out with the approval of the line Minister. This, he alleged, did not materialise.
[15] It was his further contention that he had been afforded no opportunity to present his case prior to the suspension and subsequent dismissal. He further alleged that he was not subjected to any disciplinary procedure, in line with personal rules applicable to persons in his position. Lastly, he contended that he had appealed against his dismissal but that no action had been taken regarding that appeal. The above issues are not ripe for this court to deal with at the moment. They are mentioned merely for purposes of completeness and nothing more.
[16] The letter written to the appellant dated 8 July 2022, which is the foundation of the case, reads as follows:
‘Dear Sir,
CONTRACT OF THE CHIEF EXECUTIVE OFFICER
The above-mentioned subject refers.
The Council at its first ordinary council meeting held on 8th of July 2022, under item 21: Chief Executive Officer Contract, resolved the following:
Council rescinds the council resolution that was taken in October 2019;
That the working relationship be ended with Mr. Desmond Nicodemus Basson with immediate effect because of the fact that no service contract exists between Keetmanshoop Municipality and Mr. Desmond Nicodemus Basson;
The position of Chief Executive Officer be advertised;
Council to set requirements for the position.
Therefore, be kindly informed that with immediate effect you cease to be an employee of the Municipality of Keetmanshoop and you are required to hand over all council properties in your possession by Monday, 11 July 2022 at 10:00 am.’
[17] In his award, the arbitrator reasoned as follows:
‘The arbitrator has no other option as (sic) to dismiss the matter, because there was no dismissal on the 11th of July 2022 as per the referral LC 21 of the applicant.’
[18] It is clear, from what is stated above, that the arbitrator, in his award, concluded that the appellant had not made a case for his contention that the termination of his employment, took place on 11 July 2022 but that the dismissal actually took place on 8 July 2022. This seems to stem from the fact that the appellant had, in his referral, indicated that the dismissal took place on 11 July 2022, when the letter conveying the termination of his relationship with the respondent, was dated 8 July 2022. Is there any merit in this finding?
[19] I am of the considered view that the arbitrator, in coming to the conclusion that he did, engaged in unnecessary legal sophistry. It is plain in this case that the decision to terminate the appellant’s contract took place on 8 July 2022, when the letter, bearing even date, was signed and probably dispatched. It appears common cause that the letter was only received by the appellant on 11 July 2022. That is the date when he, for the first time, became aware of the fact of his dismissal.
[20] In this regard, I agree with Mr Tjizo that the effective date when the dispute arose, for purposes of this matter, was not the date when the impugned decision was taken, but rather when it was received by the appellant, who on receipt of the bad tidings conveyed in the letter, perceived it as raising a labour dispute. In this connection, it is clear that the appellant was not informed of the decision the same day it was taken. He needed to personally receive the letter conveying the decision, with which he was evidently disenchanted. Upon receipt thereof, he took the view that he had been unlawfully dismissed. It was at that point that in my considered opinion, when, he, for the first time, apprehended that a case of unfair dismissal had eventuated. By parity of reasoning, it was on that very day, when he received the contents of the letter, that the dispute arose.
[21] I am of the considered opinion that there could be no dispute arising before the appellant had received, read or became aware of the contents of the letter terminating his employment that the dismissal occurred on 11 July 2022. In this connection, it is my considered opinion that to accept the finding of the arbitrator, would amount to impermissibly applying the doctrine of expedition theory that applies in the law of contract. In essence, it implies that the moment at which acceptance of an offer becomes effectual, is when the offeree posts the acceptance rather than when the offeror receives the acceptance. It must be noted in the regard that the general rule is that the acceptance must be communicated to the offeror in order for the offer to be effective.
[22] It seems to me that common sense and fairness, if I may add, dictate that there must be effective communication between the employer and the employee in regard to termination of employment by the employer. In this connection, an employer must ensure that the notice of termination reaches the addressee in a manner that guarantees awareness. It is from that point that the dismissal may be said to have taken effect – not when the letter bearing the dismissal is dispatched, as the arbitrator appears to have incorrectly held in the instant case.
[23] In the South African case of South African Broadcasting Corporation v CCMA and Others,1 an employer dispatched a dismissal letter to the employees. The latter argued that he had only become of aware of the letter later and challenged its timing. The court held that their dismissal becomes effectual when the employees are informed of the dismissal in a manner that ensures that they are aware of the full reasons behind the dismissal, contained in a formal communication. The date when the employee becomes aware of the letter of dismissal thus is considered as the appropriate date of dismissal. I wholeheartedly embrace this legal position as one that accords with my own sense of fairness and justice.
[24] I accordingly come to the considered conclusion that the arbitrator was obviously incorrect to dismiss the dispute on such highly casuistic and technical grounds and, which were in any event, incorrectly applied. Even if the appellant was incorrect on the date of dismissal, I am not certain that it was appropriate, considering the circumstances of the matter, for the arbitrator to dismiss the dispute without affording the appellant an opportunity to correct what may have been perceived as an error in identifying a date, which is only three days apart from that which the arbitrator considered was the correct one. I merely mention the latter point in passing.
[25] In this regard, it is my considered opinion that arbitrators are engaged at the end of the day, to do justice between the parties. It is unbecoming, in my considered view, that they take or uphold highly technical points that may lead to injustice at the end of the day. What has happened in this case, is that even the respondent has correctly abandoned the position that the arbitrator steadfastly stuck to as a postage stamp to an envelope. The position that the dispute arose on 8 July 2022, now resides only in the bosom of the arbitrator, with the respondent not making common cause with him on that score.
[26] I take note of the various other contentions and arguments advanced on behalf of the appellant in this matter. These include the issue of the actual dismissal and whether it was appropriate or not. I am of the considered view that the court should not, at this stage, engage any deeper in the matter than the decision of the arbitrator regarding when the dispute arose. Once the issue proceeds before the arbitrator, it is that forum that will be appropriately placed to decide the merits of the matter. It would, for that reason, be dangerous, if not ill-advised for the court to entertain the merits of the alleged dismissal at this juncture. That would be premature and would be tantamount to this court prejudging the matter even before the arbitrator deals with it on the merits.
Conclusion
[27] In view of the above conclusion, I am of the considered view that the appellant’s appeal has some merit. The arbitrator committed an irregularity when he took the view that there was no dismissal on the date alleged in the appellant’s referral. That being the case, I am of the considered view that this is a proper case in which the appellant’s appeal ought to be upheld.
[28] I am of the considered view that it is proper in the circumstances, that the matter be remitted to the same arbitrator to deal with the matter before him. The appellant appears comfortable with him dealing with the matter on the merits and I harbour no compunctions that he may not deal with the matter fairly or evenhandedly on the merits.
Costs
[28] The appellant has not prayed for costs in this matter. This comes as no surprise. This is because the provisions of s 118 of the Labour Act 11 of 2007, provide that costs will not ordinarily be awarded in labour matters unless the institution, defence of or continuation with a labour matter, is deemed vexatious or frivolous. Neither epithet is proved in this case. It would therefor not be appropriate to order costs in this matter and I assume this is what motivated the appellant not to pray for costs.
Admonition
[29] Before I draw a curtain on this matter, it is appropriate that I comment on the apparent freestyle reference to the parties by the appellant in the citation. I note that in some of the papers filed, especially the heads of argument, the parties are recorded by the appellant as being the applicant and the respondents. It must be recorded that the convenience or preference of parties plays no role in citing parties. The correct appellations must be employed at all times. This, being an appeal, the parties must accordingly be referred to as appellant and respondents accordingly. There must be no confusion at all in that regard.
Order
[30] That being the case, it seems to me that the proper order to issue in the circumstances, is the following:
The appellant’s appeal is upheld.
The arbitrator’s award dated 15 June 2024, dismissing the appellant’s referral, be and is hereby set aside.
The matter is referred back to the arbitrator to proceed with the dispute on the merits.
There is no order as to costs.
The matter is removed from the roll and is regarded as finalised.
___________
T S MASUKU
Judge
APPEARANCES
APPELLANT: J Tjizo
Of Jerome Tjizo & Co. Inc., Windhoek
1ST RESPONDENT: Z Vogel
Of Dr Weder, Kauta & Hoveka Inc. In watching brief, Windhoek
1 South African Broadcasting Corporation v CCMA and Another [2007] BLLR (449) (LC).
Cited documents 2
Act 2
| 1. | Local Authorities Act, 1992 | 1342 citations |
| 2. | Labour Act, 2007 | 626 citations |