COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
No.: LCA 30/2013
07 MARCH 2014
PINAH ZINC CORPORATION (PTY)
Pinah Zinc Corporation (Pty) Ltd v Naukushu (LCA
30/2013)  NALCMD 12 (7 March 2014)
Labour law – appeal against arbitrator’s award –
Award issued in favour of the respondent – On appeal, the
finding of the arbitrator set aside and appeal upheld.
The appellant has appealed against the arbitral award issued in
favour of the respondent by the arbitrator. The respondent, an
employee of the appellant who worked as an operator at the mining
division was charged with and found guilty of misconduct for being
absent from work for 5 days at the disciplinary hearing and was
dismissed. However, the arbitrator, after the arbitration
proceedings, found in favour of the respondent and issued an award
ordering his re-instatement and compensation. On appeal, the
Court found that the arbitrator made a wrong conclusion from the
evidence presented before him – upheld the appeal and the award
The appeal is upheld.
The arbitration award by the arbitrator issued on 12 March 2013 is
The appellant is appealing
against an award by the arbitrator in favour of the respondent
following the provisions of section 89(2)
read with rule 17(1)(c) of the Labour Court Rules.
As the appeal was noted two days outside the prescribed time,
condonation for the late noting of the appeal was applied for and the
legal practitioner for the appellant gave reasons why the appeal
could not be noted within the prescribed time of 30 days.
Respondent did not oppose the condonation application by the
appellant therefore, there is no reason why the application should
not be granted. The late filing of the appeal did not cause any
prejudice to the respondent at all. The application for
condonation is granted as prayed for in paragraphs 1 and 2 of the
Notice of Motion dated 29 October 2013.
Now, a brief summary of what transpired between the appellant and the
The respondent was employed by the appellant for nine years as an
operator in the mining division. During the period late August
to early September 2012, he went on leave without permission or
authority from the appellant as his application for vacation leave to
attend a wedding of his niece was not granted.
On his return, the respondent was charged with misconduct of being
absent from work for 5 days consecutively, found guilty and was
dismissed from employment.
His internal appeal against the conviction and dismissal was
unsuccessful as the finding of dismissal by the chairperson in the
disciplinary hearing was confirmed. That being the case, the
respondent referred the matter to the Office of the Labour
Commissioner as a dispute of unfair dismissal.
The Labour Commissioner appointed Matheo Rudath as an arbitrator on
30 January 2013, who on 12 March 2013 set aside the finding of the
disciplinary hearing and issued an award in favour of the
respondent. It is the award so granted by the arbitrator the
appellant is appealing against, on the following questions of law
supported by the grounds listed here under:
appeal on questions of law is as follows:
Whether the Arbitrator could have come to the decisions contained in
the award on the evidence presented during the arbitration
Whether the Arbitrator on the facts common between the parties in law
could have come to the conclusion that Respondent is not guilty on a
charge of absence of 5 or more consecutive days?
Whether the Arbitrator was in a position, on the facts before him to
conclude that Respondent must be reinstated?
Whether the Arbitrator was in a position, on facts before her to
conclude Respondent is entitled to payment of N$61 800.00 being
an amount equal to six months’ salary?
The grounds on
which the questions of law are based are:
On the facts common to the parties the arbitrator erred in law in
concluding that Appellant dismissed respondent from employment in
contravention of section 33(a) of the Labour Act, 2007 (Act 11 of
2007) or dismissed Respondent unfairly and has, as such no legal
basis for such conclusion;
On the facts presented as evidence during the arbitration proceedings
on the arbitrator erred in law in concluding that Appellant must
reinstate Respondent and that Appellant must pay respondent an amount
of N$61 800.00.’
At the hearing of the appeal, Messrs de Beer and Daniels acted on
behalf of the appellant and the respondent respectively. Both
counsel submitted written heads of argument which they supplemented
with oral submissions.
It is apparent from the grounds on which the questions of law are
based that the appellant is attacking the award, firstly because the
arbitrator, according to the appellant, on the evidence presented,
could not have concluded that the appellant dismissed the respondent
from employment in contravention of section 33(a) of the Labour Act,
2007, or has dismissed the respondent unfairly, which, according to
the appellant, does not have any legal basis.
The respondent, on the other hand, is opposing the appeal on the
grounds that, based on the evidence presented at the arbitration
hearing and the Labour Act, the arbitrator made a correct decision
In his written heads of argument, Mr Daniels, counsel for the
respondent argues that the Labour Act, 2007 provides that an employer
may not terminate an employee’s employment without a valid
reason and in compliance with the procedures. He goes on
further and states that in labour matters, evidence is considered on
a balance of probabilities and that the employer bears the onus to
prove that the dismissal was procedurally and substantively fair.
In support of his contention, he referred to the matter of House
and Home v Ricardo Majiedt
and to Parker, Collins – Labour Law in Namibia.
Counsel is correct in both his submission and the authority he had
referred to. It is also not in dispute that the employer bears the
onus to prove that the dismissal of an employee is procedurally and
substantively fair. The employee only bears the onus to prove
that he or she was employed by the employer and that he or she has
Therefore, to be able to know that the respondent in this appeal was
dismissed for a good reason or not and as whether the arbitrator, on
the evidence presented before him, could not have come to the
conclusion that the dismissal of the respondent was contrary to the
provisions of section 33(a) of the Labour Act, 2007 or has dismissed
the respondent unfairly without a legal basis, a brief survey of the
evidence presented at the arbitration proceedings has to be
Collectively, three witnesses testified on behalf of the appellant at
the arbitration proceedings. They were Messrs Valombola, Nepaya
and Bobeje. Mr Valombola, was first to testify for the
appellant. He testified that he worked for the company as a
security boss, and the complainant who charged the respondent with
misconduct for taking unauthorised vacation leave. He said that
in charging the respondent with misconduct, he took into account the
company policy which provides how an employee should go about to take
his or her annual leave. He read into record clauses 10.1 and
10.2 of the policy which provide, amongst others that the granting of
leave is at all times subject to an agreement between the employer
and employee but in the absence of any agreement, the employer may
determine when an employee will be required to take leave after
taking operational requirements into account (emphasis added).
Mr Valombola continued and read paragraph 10.2 of the policy also
into the record, which provides as follows: ‘No employee may
proceed on leave without completing a leave form and obtaining
prior written approval. Application should be submitted in
good time in order to permit arrangement to be made for the relief of
any employee during any leave period. The employer will advise
an employee in writing if the leave application is declined’.
In this instance, it is not in dispute that the respondent has
completed the leave form for five days before going on vacation.
Similarly, it is common cause between the parties that the respondent
went on leave without his leave application being approved, meaning
that no prior written approval of his leave was obtained allowing him
the opportunity to go away from his work place.
It is also Mr Valombola’s testimony that he did not recommend
and approve the leave of the respondent because his co-operator, Mr
Ndatipo’s leave, almost the same time as that of the
respondent, was already approved. According to him, he advised
the respondent to fill out another application form to change the
dates but respondent insisted that he will go. Thus, the
respondent knew that his leave has not been approved, but
nevertheless proceeded and went home without permission
The second witness called by the appellant during the arbitration
proceedings, was Mr Nepaya who was the Chairperson of the
disciplinary hearing. His evidence is essential in that he
corroborates the evidence of Mr Valombola and Mr Bobeje. Both
Messrs Nepaya and Bobeje testified amongst others that the respondent
was obliged to make sure that his leave was approved before going on
leave and that the respondent’s leave application was declined
because his co-operator was granted leave for the same period.
Relevant to the issue in dispute, the respondent in his testimony
admitted that he was aware that he has to get something in writing
back after submitted his leave application. He also admitted
that he knew that his application for leave was not approved, but
said that this was due to the incompetency of the foreman, Mr
Valombola. He further denied being told that he could not go on
leave because his colleague was already granted leave and that he
could make alternative arrangements for his leave.
With these pieces of evidence at his disposal and after listening to
submissions from representatives of the applicant and the respondent
then, the arbitrator proceeded and issued the following award in
favour of the applicant, the respondent in this appeal.
In view of the
above, I find that the respondent dismissed the applicant without a
valid and fair reason. Therefore based on the evidence placed
before me, I find that the respondent dismissed Mr Immanuel Naukushu
in contravention with section 33(a) of the Labour Act 11 of 2007.
I therefore order
the respondent must reinstatement (sic) Mr Immanuel Naukushu and to
pay Mr Immanuel Naukushu his monthly salary in the amount of
N$10 300.00 x 6 months equal (=) N$61 800.00 on or before
20 March 2013. This arbitration award is final and binding on
Before making this award the arbitrator expressed an opinion with
regard the evidence presented before him as follows:
‘Based on the
evidence before me, I am of the opinion that the foremen (sic), Mr
Frank Valombola did not deny the applicant leave because another
employee applied for leave before him. It is clear in my view
that the applicant supervisor had simply forgot to process the
application leave from (sic) as he took leave himself.’
This finding is totally incorrect and contrary to the evidence
presented before him. The evidence is that the respondent could
not be granted vacation leave for the same period with his
co-operator, Mr Ndatipo, whose application for leave was already
approved. The respondent was asked to amend the days he wanted
to go on leave which he refused to do, because he has to attend a
wedding of his uncle’s daughter. First he created an
impression that the wedding was for his own daughter. There is
nothing on record indicating that Mr Valombola forgot to process the
respondent’s leave application because he himself went on
leave. Something close to that, is the allegation by the
respondent that his leave application was not granted due to the
incompetency of Mr Valombola. What he meant by this, was not
explained. The evidence on record is that the leave application
for the respondent was not approved at that time because his
co-operator was to go. They could not go at the same time for
production purposes. The conclusion by the arbitrator, in my
opinion, is not supported by the evidence presented to him.
Once again, the arbitrator, was wrong to conclude that the respondent
has a reasonable ground to believe that his leave had been approved
as it had always been the practice in the past because he (the
respondent) was not informed in writing as prescribed by the leave
policy. The respondent was informed personally that his
application for leave will not be approved unless he amended the
dates and made some relief arrangements. It is not that he was
not informed about the refusal of his leave – he knew that his
leave application was not approved when he left to attend his niece’s
wedding. Respondent worked nine years for the appellant, he was
thus aware that, according to the company policy, he was not allowed
to go on leave without obtaining prior written approval. He
knew that if he goes without prior written approval of his leave
application, is a serious offence for which he could be charged with
misconduct. He cannot now come and allege that the practice of
the company allowed him to go before obtaining written approval.
He failed to refer to one example where this practice was followed.
Be that as it may, the policy of the company forbids employees of the
company to go on leave without prior written approval.
Therefore, for the respondent to proceed on leave without prior
written approval was tantamount to going on leave without permission
which he was charged with and found guilty of.
Mr Daniels in his written heads echoed the sentiments expressed by
the arbitrator that the only logical conclusion that can be drawn
from the whole saga is that Mr Valombola failed to process the
respondent’s leave application, failed to make arrangements for
replacement staff to be available during the period of the
respondent’s leave and he himself went on leave and as a result
of his failure he decided to charge the respondent with absenteeism.
I totally disagree with counsel. Mr Valombola’s testimony
is loud and clear and satisfactory in all material respects of what
transpired between him and the respondent when the latter submitted
his leave application. In actual fact, the respondent is not a
truthful witness because he told two different versions about whose
wedding he had to attend. At one stage he created an impression
that the wedding was for his daughter, he must go to hand her over to
the in-laws and on another, for a niece or his uncle’s
daughter. On record, the attitude displayed by the respondent
towards his foreman, Mr Valombola, was extremely negative. Such
negative attitude from an employee who worked for the company for
nine years, betrayed the trust placed in him by the employer and also
not good to sound industrial relations and promotion of efficiency
and productivity at his work place. His employer suffered
production loss as a result of his conduct.
Mr Daniels for the respondent submits that there was a duty on the
appellant to inform the respondent in writing that his leave was not
approved and that if he was so informed and still went on leave, the
guilty finding at the disciplinary hearing could have been
justified. However, what Mr Daniels must remember, in case he
forgot, is that his client left before the appellant could inform him
in writing that his leave application was declined.
Similarly, there was also a duty on his client not to proceed on
leave without obtaining prior written approval of his leave
application from the employer which the respondent admitted not to
have obtained before he left. Having say so and taking into
account the evidence presented at the arbitration proceedings, I am
of the view that the arbitrator made a mistake in finding that the
respondent was dismissed unfairly and without legal basis. This
conclusion is contrary to the evidence presented before him.
An employee has a duty, not only to render personal services to his
employer while the contract of employment is in force, but also
obliged by the contract not to be absent from work without a lawful
excuse. In this appeal,
the respondent did not comply with these requirements making him
guilty of misconduct which resulted in his dismissal.
Based on the aforegoing reasons and conclusion, I find it unnecessary
to consider the submissions on reinstatement and compensation.
In the result, I find that the dismissal of respondent at the
disciplinary hearing was substantively fair and make the following
The appeal is upheld.
The arbitration award by the arbitrator issued on 12 March 2013 is
De Beer Law Chambers
Mr C Daniels
Clement Daniels Attorneys
Labour Act, 11 of 2007
Case No LCA 46/2011 – p32
Parker, Collins – Labour Law in Namibia at
42 par 3.3