REPUBLIC
OF NAMIBIA
LABOUR
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
CASE
NO.: LCA 2/2014
DATE:
03 DECEMBER 2014
In
the matter between:
PURITY
MANGANESE (PTY)
LTD...............................................................................APPELLANT
And
FERDINAND
KAKOTIFIRST.....................................................................................RESPONDENT
KAHITIRE
KENNETH HUMU
N.O..........................................................SECOND
RESPONDENT
THE
LABOUR
COMMISSIONER................................................................THIRD
RESPONDENT
Neutral
citation: Purity Manganese (Pty) Ltd v Kakoti (LCA 2/2014)
[2014] NALCMD 51 (3 December 2014)
Coram:
UEITELE, J
Heard:
31 October 2014
Delivered:
03 December 2014
Flynote:
Labour law – Appeal – appeal against dismissal
of application for
rescission of arbitration award - the period within
which an application for the rescission of an arbitrator’s
award must be made must be computed with reference to the date on
which the award was served on the parties-Arbitrator misdirected
himself for computing period from date of hearing complaint.-
Applicant failing to show
reasonable prospects of success in the application.
Summary:
The appellant appeals against the entire award made, on 16 December
2013, by the second respondent Mr Kahitire Kenneth Humu (the
arbitrator), under s 89(1)(a) of the Labour Act, 2007.
Mr
Ferdinand Kakoti (the first respondent) was employed by the appellant
as a maintenance foreman. On 17 March 2010 Mr Kakoti was charged with
misconduct and suspended from his employment. The charges against him
are that he allegedly committed fraud and that he left the work place
without permission. On 20 March 2010 Kakoti’s employment
with the appellant was terminated on grounds of alleged misconduct
following a disciplinary hearing which was held on 20 March 2010. He
appealed his dismissal but the appeal hearing never took off.
On
28 May 2010 Kakoti referred a dispute of unfair dismissal to the
third respondent (the Labour Commissioner). On 07 June 2010 the
Labour Commissioner designated, in terms of s 85(5) of the Labour
Act, 2007 a certain Mr Sonnyboy Mwanawina to arbitrate the matter.
The arbitration hearing was set down for 07 July 2010. The
arbitration hearing did not take place as scheduled and the reasons
for the arbitration hearing not taking place on 07 July 2010 do not
appear from the record that was placed before this court.
The
record of proceedings in the arbitration proceedings is silent on
what transpired between 07 July 2010 and 05 April 2011 in the matter
of Kakoti and the appellant. On 05 April 2011 the Labour Commissioner
designated Mr Kenneth Kahitire Humu to arbitrate the dispute between
Kakoti and the appellant and also gave notice to both the appellant
and Kakoti that the dispute will be heard on 19 April 2011 at the
offices of the Labour Commissioner in Khomasdal. On 12 April 2011 Ms
Annerrie Keulder of Pieter J de Beer acting for the appellant and a
certain Mr Sakaria Simon of the Mine Workers Union of Namibia acting
on behalf of Kakoti agreed that the hearing scheduled for 19 April
2011 be postponed to 23 May 2011. The record of arbitration
proceedings is again silent as to what transpired on 23 May 2011.
On
26 July 2013 the arbitrator telephonically contacted the Human
Resources Manager of the appellant a certain Mr Silas Iipumbu and
enquiring from him (i.e. Iipumbu) whether he was aware of the fact
that the matter between Kakoti and the appellant was set down for
hearing on 26 July 2013. Mr Iipumbu informed the arbitrator that he
was not aware of the hearing and that he had never received the Form
LC 21 referral order and the Form LC 28 notice of conciliation
meeting. The arbitrator then informed Mr Iipumbu that he will
postpone the hearing to another date. Iipumbu states that he
was not informed as to which date the hearing would be postponed. On
23rd September 2013, the arbitrator, at 09h30 again called
Mr Iipumbu and enquired whether the appellant will be attending the
hearing of the dispute between Kakoti and the appellant scheduled for
23 September 2013.
The
arbitrator proceeded to hear Kakoti’s complaint of unfair
dismissal in the absence of the appellant or its representative.
At the hearing on 23 September 2013 Kakoti testified and after
hearing his evidence the arbitrator found that Kakoti was unfairly
dismissed ordered the appellant to pay Kakoti an amount of N$ 160 000
and made an award to that effect. The award dated 08 November 2013
was faxed to the appellant on the same date (i.e. on 08 November
2013). On 03 December 2013 the appellant lodged an application for
the rescission of the award of the arbitrator dated 08 November 2013.
On 17 December 2013 the arbitrator handed down his ruling in respect
of the application for the rescission of the order of 08 November
2013 in the ruling he dismissed the application for the rescission of
the order of 08 November 2013. It is against the dismissal of the
application for the rescission of that ruling that the
appellant now appeals.
Held
that Section 88 of the Act gives an arbitrator the power to, vary or
rescind an arbitration award, if it was erroneously sought or
erroneously made in the absence of any party affected by that award;
or if it is ambiguous or contains an obvious error or omission, but
only to the extent of that ambiguity, error or omission; or if that
award was made as a result of a mistake common to the parties to the
proceedings. A default is only willful if the defaulter knows
what he is doing and is a free agent and is willing that the
consequences of his default should follow.
Held,
further that the period within which an application for the
rescission of an arbitrator’s award must be made must be
computed with reference to the date on which the award was served on
the parties. Since the award was served on 08 November 2013 the
arbitrator misdirected himself when he computed the period from 23
September 2013 and the dismissal of the application for rescission on
the basis that the application for rescission was filed out of time
must accordingly be set aside and is hereby set it aside.
Held,
furthermore that the applicant through its functionaries knew that
the conciliation / arbitration hearing was scheduled for 23 September
2013 and despite that knowledge deliberately, consciously and freely
took the decision not to attend the hearing irrespective of the legal
consequences that may follow. The appellant has no reasonable
explanation for its default.
Held,
furthermore that the finding by the chairperson of the
internal disciplinary hearing that ‘the fact that Kakoti
has a final warning for (9) month on similar charges that he was
absent without permission. This court comes to the conclusion
that he ‘is guilty as charged’ is irrational and absurd.
Held
furthermore, that chairperson of the internal disciplinary
hearing failed to understand the case which was presented by Kakoti
and the weight to be accorded to the explanation provided by Kakoti
and his witnesses, the chairperson internal of the disciplinary
hearing failed in his basic duty of properly determining the evidence
before him. In fact the chairperson of the internal disciplinary
misunderstood the case that was before him.
Held
further, that the appellant has not made out a prima facie
case that it had a valid reason to dismiss Mr. Kakoti and this court
holds that the appellant has not made out a defence to that part of
the complaint. Apart from the absence of a valid reason the
disciplinary hearing was also characterized by a number of procedural
irregularities, rendering the hearing procedurally unfair.
ORDER
1.
The appeal succeeds in respect of the arbitrator’s dismissal of
the appellant’s application to rescind the award made by the
arbitrator Mr. Humu, on 08 November 2013 is set aside.
2.
The determination and award made by the arbitrator, Mr. Humu, on 08
November 2013 is altered to read:
2.1
The dismissal of the respondent, Mr. Kakoti, was procedurally and
substantively unfair.
2.2
The appellant, Purity Manganese, is ordered to pay Kakoti the salary
and benefits he was earning at the time he was dismissed, from 20
March 2010 to 08 November 2013, including bonuses, salary
increments/adjustments and any other benefits respondent would have
been entitled to within the period of 20 March 2010 to 08 November
2013.
2.3
In terms of s 87(2) of the Act, appellant is ordered to pay interest
on the amounts mentioned in paragraph 2.2 of this order at the rate
of 20% per annum from 08 November 2013 until the date of payment.
3
I make no order as to costs.
JUDGMENT
UEITELE,
J
Introduction
and Background
[1]
The appellant appeals against the entire award made, on 16 December
2013, by the second respondent Mr Kahitire Kenneth Humu (I will in
this judgment, for ease of reference, refer to him as the
arbitrator), under s 89(1)(a) of the Labour Act, 2007[1].
[2]
The background to this matter is briefly as follows. Mr Ferdinand
Kakoti the first respondent, I will in this judgment, for ease of
reference, refer to him as Kakoti) was employed by the appellant as a
maintenance foreman. On 20 March 2010 Kakoti’s employment with
the appellant was terminated on grounds of alleged misconduct
following a disciplinary hearing which was held on 20 March 2010.
[3]
On 28 May 2010 Kakoti referred a dispute of unfair dismissal to the
third respondent (I will in this judgment, for ease of reference,
refer to the third respondent as the Labour Commissioner). On 07 June
2010 the Labour Commissioner designated, in terms of s 85(5) of the
Labour Act, 2007 a certain Mr Sonnyboy Mwanawina to arbitrate the
matter. The arbitration hearing was set down for 07 July 2010. The
arbitration hearing did not take place as scheduled and the reasons
for the arbitration hearing not taking place on 07 July 2010 do not
appear from the record that was placed before me.
[4]
The record of proceedings in the arbitration proceedings is silent on
what transpired between 07 July 2010 and 05 April 2011 in the matter
of Kakoti and the appellant. On 05 April 2011 the Labour Commissioner
designated Mr Kenneth Kahitire Humu to arbitrate the dispute between
Kakoti and the appellant and also gave notice to both the appellant
and Kakoti that the dispute will be heard on 19 April 2011 at the
offices of the Labour Commissioner in Khomasdal. On 12 April 2011 Ms
Annerrie Keulder of Pieter J de Beer acting for the appellant and a
certain Mr Sakaria Simon of the Mine Workers Union of Namibia acting
on behalf of Kakoti agreed that the hearing scheduled for 19 April
2011 be postponed to 23 May 2011. The record of arbitration
proceedings is again silent as to what transpired on 23 May 2011.
[5]
On 26 July 2013 the arbitrator telephonically contacted the Human
Resources Manager of the appellant a certain Mr Silas Iipumbu and
enquired from him (i.e. Iipumbu) whether he was aware of the fact
that the matter between Kakoti and the appellant was set down for
hearing on 26 July 2013. Mr Iipumbu informed the arbitrator that he
was not aware of the hearing and that he had never received the Form
LC 21 referral order and the Form LC 28 notice of conciliation
meeting. The arbitrator then informed Mr Iipumbu that he will
postpone the hearing to another date. Iipumbu states that he
was not informed as to which date the hearing would be postponed. On
23rd September 2013, the arbitrator, at 09h30 again called
Mr Iipumbu and enquired whether the appellant will be attending the
hearing of the dispute between Kakoti and the appellant scheduled for
23 September 2013. I find it appropriate to quote from the
appellant’s affidavit in the rescission application as to what
the arbitrator said to Mr Iipumbu and what Mr Iipumbu said to the
arbitrator. Mr Iipumbu said:
‘17.9
On 23 September 2013, the arbitrator once again phoned me and
enquired whether I was coming to the case of the respondent as same
was apparently set down for that day. This came as a surprise as the
applicant was never served with a Form LC 28 notice of set down and
did not receive any verbal or written indication that the matter
would be set down for 23 September 2013. I accordingly informed the
arbitrator, once again, that I still did not receive the Form LC 21
referral of dispute and that I have not received any form of notice
for the hearing of the matter on 23 September 2013 or any other date.
17.10
The Arbitrator then informed me that he will not postpone the matter
again as it was the second time that “this” has happened
and that we can take the matter further after that. I can only assume
that he was referring to the applicant not being present at the
hearing, however, as I stated before, the applicant never knew that
it had to appear at the Office of the Labour Commissioner on 26 July
2013 or on 23 September 2013. In amplification to this, the applicant
was never served with a form LC 21 referral of dispute or any notice
of set down as stated previously.
17.11
The arbitrator’s indication that I have been informed on 26
July 2013 to be present for the hearing to take of place on 23
September 2013 is unfounded and simply not correct.
17.12
Following the arbitrator’s indication that he will not postpone
the matter, notwithstanding what I have indicated before, I informed
him that I am not prepared for the hearing as a result of what has
been stated before and informed him that I can therefore not attend
the arbitration proceedings before having had sufficient time to
prepare. I also informed him that he can continue with the
proceedings if he is not inclined to postpone the matter in order for
me to prepare sufficiently.’
[6]
The arbitrator proceeded to hear Kakoti’s complaint of unfair
dismissal in the absence of the appellant or its representative.
At the hearing on 23 September 2013 Kakoti testified and after
hearing his evidence the arbitrator found that Kakoti was unfairly
dismissed and ordered the appellant to pay Kakoti an amount of N$ 160
000. The arbitrator amongst others said the following (I quote
verbatim from the award):
‘Preliminary
issues
[2]
…
[3]
The respondent was absent despite having been informed on the 17th
July 2013 to come to the hearing which was set for 26th
July 2013.
[4]
On the date of the hearing respondent was called in the presence of
the applicant and his representative and Mr. Silas Ipumbu was
informed to be present for 23rd September 2013 but he
failed to show up.
[5]
On the 23rd September 2013 at around 09h30 he was also
called but he was not willing to come to the meeting.
[6]
Therefore conciliation was not possible, I decided to proceed with
arbitration.’
Analysis
of Evidence and Arguments
[18]
Since the respondent decided not to attend the hearing, I am left
with no choice but to accept the version of the applicant to be true
and correct since it went unchallenged.
Award
[19]
Having said the above I now decide to order as follows:
·
The respondent to re-instate the applicant in the position he held
prior to his dismissal or in a comparable position with effect from
22nd November 2013.
·
The respondent to pay applicants’ salary from the date of
dismissal to the date of finalization of this matter, which is:
20th
March 2010 to 08th November 2013=
20
Months x N$8000.00 =N$160 000.00
Total
due to the applicant: N$ 160 000.00
·
This amount must be paid over to the applicant on or before 09th
December 2013 at 10h00 at the Office of the Labour Commissioner in
Windhoek.’
[7]
The above mentioned award is dated 08 November 2013 and from the
record of proceedings in the arbitration proceedings it appears that
the award was faxed to the appellant on the same date (i.e. on 08
November 2013). On 3 December 2013 the appellant lodged an
application for the rescission of the award of the arbitrator dated 8
November 2013. On 17 December 2013 the arbitrator handed down his
ruling in respect of the application for the rescission of the order
of 08 November 2013, in the ruling he dismissed the application for
the rescission of the order of 08 November 2013. The arbitrator said
the following when he dismissed the application (I again quote
verbatim what the arbitrator said):
‘1
KINDLY TAKE NOTICE that the arbitrator, Mr K K Humu did
receive your written application for rescission of the award handed
down on the 23rd September 2013.
2
TAKE FURTHER NOTICE that I have carefully read the
accompanying affidavit of Mr Silas Iipumbu attached to your
application.
3
HOWEVER, must advice that you had ample time to file your
application within 30 days from date of issue but you failed to do
so.
4
THEREFORE, your application is out of time and could not be
entertained.
5
THEREFORE YOUR APPLICATION IS HEREBY DISMISSED
6
The arbitration award handed down on the 23rd September
2013 remains in force.’
The
Appeal
[8]
It is against the order quoted above in paragraph [7] that the
current appeal lies. The appellant noted its appeal on 13 January
2014. My reading of the appellant’s notice of appeal is that,
although the appellant states that it is appealing against the
‘entire arbitration award/ruling by the arbitrator Kahitire
Kenneth Humu on 16 December 2013’ the appellant seems to be
also asking this Court to pronounce itself against the order of the
arbitrator made in its absence on 08 November 2013. I say so for the
following reasons. In the notice of appeal the appellant states that
it will ask this Court for an order in terms of the following:
‘A)
That the arbitrator’s award and sanction as per paragraphs 1,
2, 3 and 4 of his award be set aside;
B)
That the appeal is upheld;
C)
Costs in the event of any vexatious and/or frivolous opposition to
this appeal.’
[9]
The appellant furthermore advances the following as the grounds on
which the appeal is based:
‘1
No reasonable arbitrator could not have found on the facts appearing
from the record, inter alia, that:
1.1
That the LC 21 form had been properly served on the appellant and
that proof of service had been served properly on the appellant, and
filed as contemplated in Rule 6,7 and 14 of the Rules Relating to the
Conduct of Conciliation and Arbitration before the Labour
Commissioner (The ConArb Rules).
1.2
That having regard to the LC 45 form, signed by the arbitrator
himself, that this form could have possibly been dated on any other
date, save 8 November 2013.
1.3
That having regard to the first and last page of the arbitration
award itself, which is attached to the aforementioned LC 45 form,
that the arbitration award was not signed by the arbitrator himself
and date stamped on 8 November 2013 with the official date stamp of
the Office of the Labour Commissioner.
1.4
That having regard to the first and second page of the arbitration
award that it is not clearly stated that the date of the hearing was
on 23 September 2013 and that the date of delivery of the award was
on 8 November 2013.
1.5
That after specifically finding, in his award at paragraph 2 thereof,
that the matter was heard on 23 September 2013 but that the award
could not have been issued earlier because he was on sick leave and
because of technical issues with his computing hardware, that the
award was delivered on 23 September 2013 and not 8 November 2013.
1.6
That in any event, the appellant could possibly have had knowledge of
the award on any other date prior to 8 November 2013.
2.
No reasonable arbitrator (after a careful reading) could have found
on the facts as stated in Mr Silas Iipumbu’s sworn
affidavit (inclusive of attached annexures) deposed to on 2 December
2013 and confirmed under oath by Asaf Eretz that, the appellant had
not proved on a balance of probabilities that:
2.1
In terms of section 88 of the Act, there were grounds to grant the
application and specifically that, the award sought to be rescinded:
2.1.1
was erroneously sought or erroneously made in the absence of any
party affected by that award and/or;
2.1.2
is ambiguous or contains an obvious error or omission, but only to
the extent of that ambiguity, error or omission and/or;
2.1.3
was made as a result of a mistake common to the parties to the
proceedings.
2.2
In any event the appellant showed on the uncontested evidence that it
was never served with a referral of the erstwhile dispute as
contemplated in Rule 14 of the ConArb Rules. The appellant therefore
has never been given notice of the dispute and has absolutely no idea
of the grounds that the complaint is based upon.
2.3
The appellant’s uncontested evidence also proves that it was
never served with, and did not receive a Notice of the Conciliation
and/or Arbitration Hearing on Form LC28 as required in Rule 15 of
ConArb Rules.
2.4
The evidence also shows that the arbitrator was made aware of this on
26 July 2013, and therefore at all material times knew that the
continuation of the proceedings would be irregular, yet he failed to
act accordingly and nevertheless proceeded with the matter.
2.5
The uncontested evidence also shows, that after postponing the
erstwhile matter on 26 July 2013, the appellant did not receive any
communication (written or verbal) from the arbitrator in respect to
the dates upon which the hearing would commence, nor did the
appellant receive a Notice of the Conciliation and/or Arbitration
Hearing on Form LC28 as required in Rule 15 of the ConArb Rules.
2.6
The uncontested evidence also shows that the arbitrator erred in
finding that the appellant, on 17 July 2013, had been informed to
attend to the arbitration hearing. Mr Silas Iipumbu states in his
affidavit that this is simply not correct and his evidence on this
score is not contested.
2.7
The uncontested evidence once again shows that the arbitrator erred
in finding that the appellant had been informed on 26 July 2013 to
attend to an arbitration hearing on 23 September 2013. There is
simply no evidence at all to support this.
2.8
The arbitrator also erred in finding on the uncontested evidence at
his disposal that the respondent’s domestic disciplinary
hearing had not been conducted according to fair procedure, and for a
valid and fair reason and specifically that the trust relationship
between the parties had not broken down irretrievably, and
accordingly, that the respondent was fairly dismissed in terms of the
appellant’s company policy.
2.9
The respondent also failed to plead and prove the quantum of his
damages and no evidence in this regard was ever placed before the
arbitrator, upon which the arbitrator could reasonably, in the
erstwhile hearing, have found that the respondent was entitled to be
paid damages in the amount of N$160 000.’
[10]
The notice of appeal together with the grounds of appeal is
convoluted and makes difficult reading. As I have indicated above the
appellant in its notice of appeal simply appeals against the
award/ruling made by the arbitrator on 16 December 2013, but the
appellant is asking this Court to set aside the arbitrator’s
award (without setting out which award) and sanction as per
paragraphs 1, 2, 3 and 4 (I presume the appellant is referring to the
award of 08 November 2013). My assumption is based on the fact that
the ruling of 16 December 2013 makes no award and imposes no
sanction. If my assumption is correct that the appellant wants this
Court to set aside the award made in paragraphs 1, 2, 3 and 4 of the
order of 08 November 2013, then this Court cannot grant that order
because there is no appeal against that order.
[11]
Mr Jones who appeared for the appellant in his arguments further
argued that the date of hearing (i.e. the complaint of unfair
dismissal) was on 23 September 2013. The arbitration award is
date stamped 08 November 2013, approximately one and a half months
after the arbitration took place. He further submitted that it is
clear on the face of the award itself that it was delivered outside
of the thirty day period mandated in the Act and that the award thus
amounted to a nullity. Mr Jones relied on the case of The
International University of Management v Torbitt[2]
for that proposition. The argument of Jones–Ravenscroft cannot
succeed for two reasons firstly the alleged nullity of the order is
not a ground on which the appellant appealed against the award of the
arbitrator. In the case of Standard
Bank Namibia v Grace[3]
Henning, AJ struck an appeal from the roll because the notice of
appeal amongst other things failed to specify the grounds of appeal,
he said:
‘[10]
The Constitution promises the public a judiciary which is effective.
In practice this demands that judicial officers hear and determine
disputes. In order to guide a hearing and to stimulate the discussion
the judicial officer must prepare in advance. Should they not do so,
the hearing is sterile — counsel read their heads of argument
without much enthusiasm and the judicial officer listens. He/she
could just as well have remained in chambers and read the papers. The
hearing is a charade. When it gets to writing a judgment the judicial
officer is what an American Judge called 'a lost soul'. However,
preparation is a time- consuming exercise. The judicial officer needs
all the help he could obtain from the parties. To control a record of
some 400 pages is time-consuming. To do so without knowing exactly
where to look for what, is in addition frustrating.’
[12]
The second reason why the submission of Jones must fail is that the
matter of The
International University of Management v Torbitt was
considered in the case of Life
Office Namibia Ltd T/A Namlife v Amakali[4].In
the latter matter Smuts, J said, ( I must point out that I fully
endorse Smuts, J’s reasoning) the following:
‘[15]
In the course of his reasoning, Parker, AJ referred to the
legislative purpose behind this section and concluded that it was
that arbitration awards are to be issued expeditiously. That is
entirely correct. He points out that the use of the term “must”
casts an obligation upon an arbitrator to deliver an award in that 30
days period. He concludes that the use of the term “must”
is mandatory and peremptory and not permissive or directory. I
respectfully agree with all of those sentiments. But I do not
agree with the consequence which he found followed upon
non-compliance with this statutory injunction of delivering the award
within 30 days. The consequence which he visits upon
non-compliance with s 86(18) is invalidity of an award delivered
beyond the expiration of that period.
[16]
The statutory intention is plainly to ensure that arbitration awards
are delivered expeditiously. But according to Parker, AJ the
consequence of failing to do so means that the award is a nullity if
an award is delivered a day, a week, a month or five months out of
time. That consequence certainly could not, in my respectful
view, ever have been the statutory intention. Parker, AJ does
not deal with the consequences of a declaration of invalidity of the
award. What about the referral and the proceedings themselves? The
most benevolent consequence would be for the arbitration proceedings
to commence again de novo.
But that could never accord with the statutory intention. This
would result in considerable further expense and delay for the
parties and an entirely unnecessary duplication of work for a
different arbitrator. Another consequence which could arise
would be that the complainant would need to refer a dispute afresh.
That would in most instance result in the referral being out of time
and the complainant being non-suited for that reason, even though he
or she would have been entirely innocent in the cause of the delay
which occurred in issuing the award.
[17]
In either event, a considerable further delay would result and the
very real spectre of potential injustice in the event of a referral
being time barred as a consequence. Furthermore, there would be
uncertainty, extra expense and entirely unnecessary duplication of
effort on the part of the Labour Commissioner’s office.
These consequences could never accord with the statutory intention
behind s 86(18).
[18]
Clearly the evil to be addressed in s 86(18) was the problem of
delays in the handing down of awards. Hence the need to require
arbitrators to deliver their awards promptly in mandatory terms. But
to visit such a delay with a late award being a nullity in my view
most certainly undermines that statutory intention and certainly does
not follow from the injunction to deliver the award within 30 days.
The consequence of non-compliance with mandatory provisions is to be
determined within the context of the statutory provision and its
intention construed in that context. This has been addressed in
a different setting with regard to the completion of a referral form
in Auto Exec CC v Van Wyk and Another
(LC 150/2013) [2014] NALCMD 16 (16
April 2014) and Purity Manganese (Pty)
Ltd v Katjivena (LC 86/2012) [2014] NALCMD 10 (26 February
2014).
[19]
Whilst I agree with Parker, AJ that the legislature intended s 86(18)
to be binding and mandatory upon arbitrators, it would not in my view
follow that an award given beyond that time period would be visited
with invalidity as a consequence. On the contrary, it would
seem that the legislature intended other remedies to be available to
parties where an award is late. Either of the parties to the
dispute could for instance bring an application to this court to
compel the arbitrator to hand down the award by way of a mandamus
and possibly seek an appropriate costs order. The Labour
Commissioner would also appear to have standing to compel the
arbitrator to do so by way of a mandamus if the matter were
reported to him or come to his attention. That would be the
nature of a remedy available to a party and the Labour Commissioner
as a consequence of non-compliance on the part of an arbitrator with
the statutory injunction to hand down an award within the 30 day
period prescribed by s 86(18).
[20]
It would follow that the approach in IUM v Torbitt is in my
view clearly wrong and I decline to follow it.’
The
dismissal of the rescission application
[13]
As regards the ruling/award of 16 December 2013 Mr Jones submitted
that the arbitrator misdirected himself when he dismissed the
application for rescission on the basis that the application was
brought out of time. He further submitted that ‘the arbitrator
despite alluding to the fact that he seemingly considered the merits
“carefully” did not provide any reason for dismissing the
rescission application. He argued that the arbitrator was enjoined to
act fairly and reasonably which he did not and the ruling dismissing
the application for rescission must be set aside. I have no
difficulty in accepting this submission by Mr Jones. As I have
indicated above in the introductory part of this judgment the award
by the arbitrator is dated 08 November 2013 and is date stamped that
day and it is also on that date that it was transmitted to the
appellant.
[14]
Section 88 of the Labour Act, 2007 provides as follows:
‘88
Variation and rescission of awards
An
arbitrator who has made an award in terms of section 86(15) may vary
or rescind the award, at the arbitrator's instance, within 30
days after service of the award, or on the application of any party
made within 30 days after service of the award, if-
(a)
it was erroneously sought or erroneously made in the absence of any
party affected by that award;
(b)
it is ambiguous or contains an obvious error or omission, but only to
the extent of that ambiguity, error or omission; or
(c)
it was made as a result of a mistake common to the parties to the
proceedings.’
It
is thus clear that the computing of the period within which an
application for the rescission of an arbitrator’s award must be
made with reference to the date on which the award was served on the
parties. Since the award was served on 08 November 2013 the
arbitrator misdirected himself when he computed the period from 23
September 2013 and the dismissal of the application for rescission on
the basis that it was brought out of time must accordingly be set
aside and I hereby set it aside.
[15]
Having set aside the dismissal of the application to rescind the
award made by the arbitrator on 08 November 2014 the ordinary course
would be to refer the matter back to the Commissioner for him to
appoint another arbitrator to hear the application de
novo.
This matter has its origins in the letter of 17 March 2010 notifying
Kakoti that he is suspended and of a disciplinary enquiry (scheduled
for 19 March 2010) against himself. Four years down the line, the
matter is still in our courts. Imagine the delay if I were to send
this matter back to start de
novo
before another arbitrator, possibly another appeal to the Labour
Court. I agree with Mainga, JA when he said the ‘back and
forth of dispute resolutions defeats the purpose of resolving
disputes expeditiously.’[5]
It is my view that unless the arbitrator misconducted himself/herself
(see s 89(5) of the Act) in conducting the proceedings, the present
is a proper case for the this Court to determine the dispute itself
in terms of s 89(10)(a).
Both Mr. Jones for the appellant and Mr. Hengari for Kakoti
agree that this court determine the dispute. I will therefore proceed
to consider the application for the rescission of the arbitrator’s
award granted on 08 November 2013.
The
rescission application
[16]
Section 88 of the Act gives an arbitrator the power to, vary or
rescind an arbitration award, if it was erroneously sought or
erroneously made in the absence of any party affected by that award;
or if it is ambiguous or contains an obvious error or omission, but
only to the extent of that ambiguity, error or omission; or if that
award was made as a result of a mistake common to the parties to the
proceedings. Parker C argues that the provisions of s 88 are in
material respects similar to the provisions of rule 44 of the High
Court Rules (repealed and now rule 103).
[17]
In addition to the provisions of s 88 of the Act, this Court is,
under the common law, empowered to rescind judgments obtained on
default of appearance, on sufficient cause shown of any party
affected thereby. The approach to be followed in matters where the
applicant seeks to rescind a judgment obtained on default of
appearance is encapsulated in various decisions by the High Court.
For present purposes I refer to the judgment of Leweis
v Sampoio[6]
where Strydom, CJ said the following:
'An
application for rescission is never simply an enquiry whether or not
to penalise a party for his failure to follow the rules and
procedures laid down for civil proceedings in our courts. The
question is, rather, whether or not the explanation for the default
and any accompanying conduct by the defaulter, be it willful or
negligent or otherwise, gives rise to the probable inference that
there is no bona fide defence and hence that the application
for rescission is not bona fide.'
[18]
In De
Wet and Others v Western Bank Ltd
[7]Trengrove, AJA, as he then
was, set out the provisions of our common law relating to the
rescission of judgments as follows:
'Thus,
under common law the Courts of Holland were, generally speaking,
empowered to rescind judgments obtained on default of appearance, on
sufficient cause shown. This power was entrusted to the discretion of
the Courts. Although no rigid limits were set as to the circumstances
which constituted sufficient cause . . . the Courts nevertheless laid
down certain general principles, for themselves, to guide them in the
exercise of their discretion. Broadly speaking, the exercise of the
Court's discretionary power appears to have been influenced by
considerations of justice and fairness, having regard to all the
facts and circumstances of the particular case. The onus of showing
the existence of sufficient cause for relief was on the applicant in
each case, and he had to satisfy the Court, inter alia, that there
was some reasonably satisfactory explanation why the judgment was
allowed to go by default. It follows from what I have said that the
Court's discretion under the common law extended beyond, and was not
limited to, the grounds provided for in Rules 31 and 42(1), and those
specifically mentioned in the Childerley case. Those grounds
do not, for example, cover the case of a litigant, or his legal
representative, whose default is due to unforeseen circumstances
beyond his control, such as sudden illness, or some other
misadventure; one can envisage many situations in which both logic
and common sense would dictate that a defaulting party should, as a
matter of justice and fairness, be afforded relief.'
The
appellant’s reasons for not attending the conciliation/
arbitration proceedings
[19]
I will now proceed to evaluate the reasons advanced by the appellant
for its default to appear at the conciliation/arbitration hearing
with a view to determine whether or not the explanation for the
default and any accompanying conduct by the appellant, be it willful
or negligent or otherwise, gives rise to the probable inference that
there is no bona fide defence.
[20]
Mr. Silas Iipumbu, the appellant’s Human Resources Manager,
deposed to the affidavit in support of the appellant’s
application for the rescission of the arbitrator’s award made
on 08 November 2008. Mr. Iipumbu alleges that the reason why
the appellant did not appear at the conciliation / arbitration
hearing is because the appellant was not served with a Form LC 21
complaint and did also not receive a notice of the conciliation
/arbitration hearing as required by rule 15 the Rules[8].
I have, below, in detail and verbatim quoted the explanation advanced
on behalf of the appellant for its default.
‘Good
cause
Explanation
of default and/or mistake
[17.1]
No Form LC 21 referral of dispute was ever served on the
applicant, either before or during the course of my employment with
the applicant [i.e. the current appellant]. I also refer to
the Mr. Eretz’s confirmatory affidavit in this regard. This
follows that the respondent never properly referred his dispute to
the Office of the Labour Commissioner, as he did not comply with Rule
14 of the Rules which clearly requires of a referring party to not
only serve the Form LC 21, but provide proof to the Labour
Commissioner on Form LG 36 and under oath that he had done so. The
applicant [i.e. the current appellant] has to date, not receive a
Form LC 21 referral form or any form of proof that same had been
served on it.
[17.2]
The applicant never received a notice of conciliation meeting and/or
arbitration hearing on Form LC 28 as required by Rule 15 of the or
any other form and/or document which may have served as of notice
that the matter would be set down on a certain date . As a
result the applicant and myself as the Human Resources Manager was
totally unaware of the matter.
[17.3]
On 26 July 2013, for the first time, the respondent’s
[i.e. Kakoti] name and this matter came to knowledge. I was
contacted by Mr. Humu, the arbitrator, on 26 July 2013, when he
enquired from me as to whether I was aware of the case of Mr. Kakoti
and that it was set down for the said date of 26 July 2013. I
categorically stated and informed him that I was not aware of the
matter or that it had been set down on the said date. I also
specifically informed him that I have never received a Form LC21
referral of despite for the matter of Mr. Kakoti, nor did I receive
any Form LC28 notice of conciliation meeting or arbitration hearing
and/or any other form of notice of set down.
[17.4]
The arbitrator then informed me that he did not want to assume that
the applicant did not show up to the proceedings on purpose and
informed me that he will postpone the matter. The arbitrator did
however not inform me of any further and/or future date to which the
matter will be postponed and I understand that he will provide the
applicant and the respondent with a new notice of set down, or at
least a written indication as to the date to be set for the hearing
of the matter.
[17.5]
…
[17.8]
The arbitrator’s indication that I have been informed on 17
July 2013 to be present for the hearing to take place on 26 July 2013
is thereof simply not correct.
[17.9]
On 23 September 2013, the arbitrator once again phoned me and
enquired whether I was coming to the case of the respondent as same
was apparently set down for that day. This came as a surprise as the
applicant was never served with a Form LC28 notice of set down and
did not receive any verbal or written indication that the matter
would be set down for 23 September 2013. I accordingly informed the
arbitrator, once again, that I still have not receive the Form LC21
referral of dispute and that I have not received any form of notice
for the hearing of the matter on 23 September 2013 or any other date.
[17.10]
The Arbitrator then informed me that he will not postpone the matter
again as it was the second time that “this” has happened
and that we can take the matter further after that. I can only assume
that he was referring to the applicant not being present at the
hearing, however, as I stated before, the applicant never knew that
it had to appear at the Office of the Labour Commissioner on 26 July
2013 or on 23 September 2013. In amplification to this, the
applicant was never served with a form LC21 referral of dispute or
any notice of set down as stated previously.
[17.11]
The arbitrator’s indication that I have been informed on 26
July 2013 to be present for the hearing to take of place on 23
September 2013 is unfounded and simply not correct.
[17.12]
Following the arbitrator’s indication that he will not postpone
the matter, notwithstanding what I have indicated before, I
informed him that I am not prepared for the hearing as a result of
what has been stated before and informed him that I can therefore not
attend the arbitration proceedings before having had sufficient time
to prepare. I also informed him that he can continue with the
proceedings if he is not inclined to postpone the matter in order for
me to prepare sufficiently.’ I have italicized and
underlined certain portions of the quotation for emphasis.
[21]
I must state that I find some of the allegations by Mr. Iipumbu to be
improbable and bordering on misleading the court. The allegations I
find improbable and bordering on misleading the court are the
allegations that:
(a)
The Form LC 21 referral of dispute was never served on
the applicant, either before or during the course of Mr. Iipumbu’s
employment with the appellant;
(b)
On 26 July 2013, for the first time, Mr. Kakoti’s name and this
matter came to knowledge of the appellant.
(c)
The appellant was never served with a form LC21 referral of dispute
or any notice of set down.
I
say so for the following reasons. The record of proceedings under
case number CRWK 409-10 filed by the appellant reveals that there is:
(i)
a duly completed Referral of Dispute For Conciliation or Arbitration
Form (Form LC 21) on the record,
(ii)
an affidavit by Sakaria Simon, (who, on behalf of Kakoti referred the
dispute to the Labour Commissioner) that he served certain documents
(although the affidavit omits to mention the nature of the documents)
on the appellant;
(iii)
a designation of Arbitrator (Form LC 27 dated 07 June 2010) addressed
to the appellant and faxed to it at fax number 061 253784;
(iv)
on 21 June 2010 Ms. Annerie Keulder (of the Law Firm Pieter J de Beer
) acting on behalf of the appellant applied to the Labour
Commissioner to represent the appellant at the arbitration hearing
scheduled for 07 July 2010;
(v)
a second designation of Arbitrator (Form LC 27 dated 05 April 2011)
addressed to the appellant and faxed to it at fax number 061 253784;
(vi)
an agreement dated 12 April 2011 to postpone the
conciliation/arbitration hearing which was scheduled for
19 April 2011 to 23 May 2011.
In
view of the presence of the above documents on the record and the
fact that it instructed legal practitioners to defend it at the
conciliation / arbitration hearing, the inescapable conclusion is
that the appellant must have been and was aware of the complaint
referred to the Labour Commissioner by Kakoti.
[22]
On the version of Mr. Iipumbu, he (Iipumbu) was called twice by the
arbitrator, first on the 26th
of July 2013 and second time on the 23rd
September 2013 by the arbitrator and asked whether he was not
attending the arbitration hearing, his reply was that he was not
served with a Referral Form (Form LC 21) and Notice of Hearing (Form
LC 28). When, on 23 September 2013 the arbitrator indicated that he
was not going to postpone the conciliation/arbitration hearing for
the second time Mr. Iipumbu indicted to the arbitrator that the
arbitrator can continue with the proceedings. I am of the view
that Mr. Iipumbu’s attitude is clear demonstration of the
disdain he has for the conciliation and arbitration proceedings and
that he was also not entirely truthful when he said that the
appellant was not serve with a referral form. In the matter of
Hainard
v Est Dewes[9]
De Villiers, JP said that ‘a
default is only willful if the defaulter knows what he is doing and
is a free agent and is willing that the consequences of his default
should follow.’
In the matter of Maujean
t/a Audio Video Agencies v Standard Bank of SA Ltd[10]
King, J said the following:
‘….
'Wilful' has several meanings; The Oxford English Dictionary
gives no less than five. In the legal lexicon two of these meanings
are habitually employed; the one connotes consciousness and
intention; the other has an additional ingredient, a perverseness or
absence of regard to reason. More specifically in the context
of a default judgment 'wilful' connotes deliberateness in the
sense of knowledge of the action and of its consequences, i.e. its
legal consequences and a conscious and freely taken decision to
refrain from giving notice of intention to defend, whatever the
motivation for this conduct might be. See in this connection Kouligas
& Spanoudis Properties (Pty) Ltd v Boland Bank Bpk 1987 (2)
SA 414 (O) at 417 and authorities there cited. In other words the
additional element of perverseness or obstinacy is not required.’
I
have thus come to the conclusion that the appellant through its
functionaries knew of that the conciliation / arbitration hearing was
scheduled for 23 September 2013 and despite that knowledge
deliberately, consciously and freely took the decision not to attend
the hearing irrespective of the legal consequences that may follow.
The appellant in my view has no reasonable explanation for its
default.
The
existence of a bona fide defence or prospects of success
[23]
Despite my finding that the appellant does not have a reasonable
explanation for its failure to attend the conciliation/arbitration
proceedings I will proceed to evaluate the nature of its defence. I
will again in detail quote what the appellant say with regard to its
defence. Mr. Iipumbu said the following:
[22]
I refer to the applicants’ disciplinary code which is well
known to the respondent. It is evident that the respondent intended
to defraud the applicant when he opted not to sign out his clock card
as is required practice of the applicant.
[23]
Allegations to the effect that the respondent was unfairly dismissed
are blatantly untrue.
[24]
There can be no other explanation for the ruling and/or award in the
respondent’s favour, other than the fact that the arbitrator
was misled by the respondent. I doubt that the respondent testified,
under oath, to the full extent of what is reflected in the summaries
of the disciplinary hearing. Had the arbitrator heard this as
evidence, then he could have made no other ruling than that the
respondent was dismissed for a fair and valid reason and by way of a
fair procedure.
[25]
…
[26]
There can be no doubt that the sanction of dismissal was the
appropriate sanction in the circumstances. As a consequence the
applicant has strong prospects of success in the arbitration.’
[24]
Mr. Kakoti was, on 17 March 2010 charged with misconduct and
suspended from his employment. the charges against him are that he
allegedly committed fraud and that he left the work place without
permission. After a disciplinary hearing Kakoti was found
guilty and dismissed from his employment. He appealed his
dismissal but the appeal hearing never took off. At the disciplinary
hearing the appellant led two witnesses a certain Mr. Bennie
Engelbrecght and a certain Mr. George Garab. Mr. Kakoti called
two witnesses a certain Mr. Stephanus Heita (the senior Human
Resources Manager of appellant) and a certain Andreas Kambonde (a
security guard) to testify on his behalf. The evidence of Mr. Bennie
Engelbrecght was to the effect that on 15 March 2010 he left the mine
and Mr. Kakoti was at the mine. Mr. Engelbrecght testified that he
saw Kakoti and personally spoke to Kakoti, at around 10H00 he left
the mine for home and at about 12H00 a certain George Garab phoned
him (Engelbrecght ) asking where Kakoti was. Engelbrecght returned to
the mine at about 23H00 and at that time found Kakoti at the mine
working. He further testified that after his return Garab
advised him (Engelbrecght) that he must lay charges against Kakoti
because Kakoti left the mine without permission and without clocking
out.
[25]
Mr. Kakoti’s evidence was to the effect that on 15 March 2010
he arrived at the mine clocked in and worked until ten o’clock.
While he was working he started experiencing breathing problems.
He then went to the Senior Human Resources officer a certain Mr.
Heita and told him about the problem who replied that since Kakoti
was not injured whilst on duty there was not much he could do for
him. So he then went to Garab’s office and there was nobody at
Garab’s office, he walked slowly to the gate. When he got to
the gate the clocking lady and the clock card were not there. He
testified that he waited until he could not wait anymore, so he told
the security guard that he could not wait anymore so he would go and
he asked the security guard to tell the clocking lady to clock him
out. The security guard (Mr. Kambonde) also testified at the
hearing, he corroborated Mr. Kakoti’s evidence and proceeded to
state that Mr. Kakoti asked him to tell the clocking lady to clock
him out because he was sick. He testified that he started his patrol
duties and he forgot to inform the clocking lady about Kakoti’s
request. After all these evidence the chairperson of the disciplinary
hearing adjourned the hearing and on 20 March 2010 he made the
following ruling (I quote verbatim).
‘I
come to the following finding conclusion when I listen to both side s
in the hearing.
A)
I find sufficient evidence on the charge of fraud against the
accused, Mr. Kakoti had the intent to defraud the company based on
the way he left the working place and the way he come in he was not
even in position of his clinic card.
Based
on this I found him guilty on the charge.
B)
On the charge of living work without permission I found the accused
guilty based on that he Mr. Ferdinand did not inform his superior.
And also the fact that he has a final warning for (9) month on
similar charges that he was absent without permission I come to the
conclusion that he is guilty as charged therefore I found him guilty
as charged.
I
recommend dismissal of Mr. Ferdinand Komati.’
[26]
In the absence of any specific definition in the appellant’s
rules and regulations, fraud must be given its ordinary mean within
the general law applicable in the country. In the South
African Criminal Law and Procedure[11]
fraud is defined as follows:
‘Fraud
consists in the unlawful making with intent to defraud, a
misrepresentation which causes actual prejudice or which is
potentially prejudice to another.’
[27]
It follows that for the appellant to succeeded in discharging its
onus, it had to adduce evidence that showed that Mr Kakoti in failing
to clock out as he did, unlawfully failed to clock and that the
omission or failure was calculated or intended to misrepresent to the
employer that he was on duty and that the misrepresentation caused
the appellant prejudice or potential prejudice. On the evidence
before the chairperson of the disciplinary hearing I fail to see how
and on what basis the chairperson of the disciplinary hearing could
find ‘sufficient evidence’ to prove the charge of fraud
against Mr. Kakoti and that Mr. Kakoti had the intent to defraud the
company.
[28]
I say so for the following reasons Mr. Kakoti’s evidence that
he went to Mr. Garab’s office (the maintenance manager) to ask
for permission was never contradicted, the human resources
practitioner confirmed that he was approached by Kakoti and that he
told Kakoti that he could not assist him. The security guard
confirmed that Kakoti asked him to inform the clocking lady to clock
him out but he (the security guard) forgot to inform the clocking
lady. The finding by the chairperson of the internal disciplinary
hearing is such that no reasonable chairperson of a disciplinary
hearing would have made such a finding. The finding by the
chairperson that ‘the fact that Kakoti has a final warning for
(9) month on similar charges that he was absent without permission I
come to the conclusion that he is guilty as charged’ is
irrational and absurd. It is therefore my view that chairperson
of the internal disciplinary hearing failed to understand the case
which was presented by Kakoti and the weight to be accorded to the
explanation provided by Kakoti and his witnesses, the chairperson of
the disciplinary hearing failed in his basic duty of properly
determining the evidence before him. In fact the chairperson of the
disciplinary misunderstood the case that was before him. I therefore
conclude that the appellant has not made out a prima facie
case that it had a valid reason to dismiss Mr. Kakoti and I hold that
the appellant has not made out a defence to that part of the
complaint. Apart from the absence of a valid reason the disciplinary
hearing was also characterized by a number of procedural
irregularities, (for example the chairperson of the disciplinary
hearing without affording Mr. Kakoti the opportunity to address him
on the evidence led, made a finding on his guilt, the sentence was
imposed without affording Mr. Kakoti the opportunity to lead evidence
in mitigation. Mr. Kakoti filed an appeal which was not heard)
rendering the hearing procedurally unfair.
[29]
In the result I make the following order:
1.
The appeal succeeds in respect of the arbitrator’s dismissal of
the appellant’s application to rescind the award made by the
arbitrator, Mr. Humu, on 08 November 2013 is set aside.
2.
The determination and award made by the arbitrator, Mr. Humu, on 08
November 2013 is altered to read:
2.1
The dismissal of the respondent, Mr. Kakoti, was procedurally and
substantively unfair.
2.2
The appellant, Purity Manganese, is ordered to pay the Kakoti a
salary and benefits he was earning at the time he was dismissed, from
20 March 2010 to 08 November 2013, including bonuses, salary
increments/adjustments and any other benefits respondent would have
been entitled to within the period of 20 March 2010 to 08 November
2013.
2.3
In terms of s 87(2) of the Act, appellant is ordered to pay interest
on the amounts mentioned paragraph 2.2 of this order at the rate of
20% per annum from 08 November 2013 until the date of payment.
3
I make no order as to costs.
SFI
Ueitele
Judge
APPEARANCES
APPELLANT:
Mr JP Jones
Instructed
by GF Kopplinger Legal Practitioners
FIRST
RESPONDENT: Mr U Hengari
Instructed
by the Directorate of Legal Aid
[2]
An unreported judgment of the Labour Court
of Namibia (LC 114/2013) [2014] NALCMD 6 (delivered on 20 February
2014.
[3]
2011 (1) NR 321 (LC).
[4]
An unreported judgment of the Labour Court of Namibia (LCA 78/2013)
[2014] NALCMD 17 (delivered on 17 April 2014).
[5]
See the unreported judgment of National
Housing Enterprise v Hinda-Mbazira
NASC (SA 42-2012) delivered on 4 July 2014 at para [34]
[7].
1979 (2) SA 1031 (A) at 1041B.
[8]
That is the Rules relating to the conduct of conciliation and
arbitration before the Labour Commissioner (Government Notice No.
262 in Government
Gazette
No. 4151 of 31 October 2008).
[10]
1994 (3) SA 801 (C).
[11]
Hunt and Milton (1982, Juta &Co Ltd, Volume II 2ed) at 755.