Bobo v Ohorongo Cement (Pty) Ltd (LC 81/2013) [2014] NALCMD 7 (19 February 2014);

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Full judgment

REPUBLIC OF NAMIBIA


IN THE LABOUR COURT OF NAMIBIA


JUDGMENT


Case no: LC 81/2013


DATE: 19 FEBRUARY 2014


REPORTABLE


In the matter between:



THEORY BOBO............................................................................APPLICANT/APPELLANT


And


OHORONGO CEMENT (PTY) LTD.............................................................RESPONDENT


Neutral citation: Theory Bobo v Ohorongo Cement (Pty) Ltd (LC 81/2013) [2014] NAHCMD 7 (19 February 2014)


Coram: SMUTS, J


Heard: 16 January 2014


Delivered: 19 February 2014


Flynote: Application for condonation for late filing of notice of appeal under s 89(3) of Act 11 of 2007. No notice of appeal when application brought. It was only filed after this point was taken in the answering affidavit. Application defective. Section 89(3) presupposes the filing of a notice of appeal (which is late) and whose lateness is then sought to be condoned. Applicant also and in any event failing to meet both requisites of good cause by failing to provide an adequate explanation and the appeal not enjoying prospects of success.



ORDER


a) The application is dismissed;


b) There is no order as to costs




JUDGMENT



SMUTS, J


[1] This condonation application has been made to this Court by a former employee of the respondent, seeking to condone the late filing of his appeal against the award of an arbitrator under s 89 of the Labour Act (the Act). 1 The applicant served as the respondent’s Technical Assistant / Operations Manager at its mine in the vicinity of Otavi in the central northern area of Namibia. The applicant was on 16 July 2012 charged with misconduct by the respondent for being under the influence of alcohol when he reported for work on that day. In the alternative he was charged with gross negligence for being ignorant of the company policies dealing with the consumption of alcohol. A breathalyser test was taken. It revealed a blood alcohol content of 0.23%.


[2] A disciplinary enquiry was subsequently conducted on 27 July 2012. The applicant pleaded guilty and was found guilty on the main charge and the sanction was a dismissal.


[3] The applicant appealed internally against that dismissal. The respondent engaged an independent legal practitioner to hear the appeal, Ms Mia Swart. Ms Swart considered the sanction of dismissal to be too severe and recommended the imposition of a less severe sanction and reinstatement. But the respondent’s Managing Director held the view that the appeal chairperson did not take all the evidence into account and did not apply her mind fully to it and resolved to proceed with the dismissal. The applicant was informed that the dismissal would still stand.


[4] The applicant thereafter referred the dispute to the Office of the Labour Commissioner. An arbitration was subsequently held. The arbitrator ruled that the dismissal was procedurally and substantively fair and dismissed the applicant’s case. This occurred on 8 March 2013.


[5] The applicant took the issue up with a practising legal practitioner,


Ms Mugaviri on the day after the award was handed down. The applicant states that she informed him that she required to do further research on the matter. The applicant left for Zimbabwe on 11 March 2013 and says he sent Ms Mugaviri the arbitration award from Zimbabwe on or about 18 or 19 March 2013. He states that after he heard nothing further from Ms Mugaviri ,he contacted a friend on 15 April 2013 who recommended his current legal practitioner of record. He thereafter contacted his current legal practitioner on 19 April 2013 and on the following day instructed him to file a notice of appeal against the arbitration award.


[6] The applicant states that he was under the impression that the 30 day period from the handing down of the award (to note an appeal) would run out on 22 April 2013 as was under the impression that the prescribed 30 day period for noting appeals was calculated with reference to court days and not ordinary days. He was advised by his current legal practitioner that his understanding was not correct. He then instructed him to apply for condonation and for reinstatement of the appeal on 23 April 2013. This application was filed shortly thereafter on 10 May 2013.


[7] In the applicant’s notice of motion, the following relief is sought by the applicant:


‘1. Condoning applicant’s failure to note an appeal in accordance with Rule 17 of the Labour Court Rules;


2. Reinstating the appeal;


3. Leave to file a notice of appeal within 10 days of the court order or such time period as this court may prescribed;


4. Further and/or alternative relief.’


[8] The application is opposed by the respondent. In the answering affidavit filed on 3 June 2013, the respondent took two preliminary points. These were persisted with in argument.


[9] The first point is that the applicant should have filed a notice of appeal prior to lodging the application. It is common cause that no notice to appeal had been filed at that stage. It was only filed on 20 June 2013, sometime after receipt of the answering affidavit on 3 June 2013. The respondent contended that, in the absence of filing a notice of appeal, this court would not have jurisdiction to hear the application and that the relief sought is ultra vires the powers of this court under the Act. In support of these contentions, the respondent submitted that the relief was not competent in the absence of filing a notice of appeal.


[10] The second preliminary point concerned the founding affidavit. It was contended that it had not met the requirements of the court rules for the deposition of affidavits outside the Republic of Namibia with regard to authentication. The original authenticated affidavit was provided much later. Given the absence of any prejudice at all to the respondent, the respondent did not with any vigour persist with this point. Insofar as may be necessary, I am prepared to and accordingly grant condonation for the subsequent filing of the applicant’s authenticated founding affidavit.


[11] The respondent also opposes this application on its merits, contending that the explanation provided by the applicant was inadequate and not acceptable and that condonation should not be granted for that reason. The respondent also opposes the condonation application on the grounds that the appeal itself would not enjoy prospects of success on appeal.


[12] The remaining preliminary point raised by the respondent is first dealt with. I then consider the adequacy of the explanation and finally the issue of prospects of success.


Preliminary point


[13] Section 89(3) of the Act provides:


‘The Labour Court may condone the late noting of an appeal on good cause shown.’


[14] A party to a dispute who wishes to appeal against an arbitrator’s award in terms of subsection 89(1) must note an appeal in accordance with the rules of the High Court within 30 days after the award had been served on the party. 2


[15] Rule 17 of the rules of this court is also of relevance. It sets out the peremptory prerequisites for notices of appeal. It requires that an appeal is to be noted by delivery of a notice of appeal in accordance with form 11 of the rules and to set out concisely and distinctly which part of the decision or order is appealed against and the grounds of appeal which the appellant relies upon for the relief sought. That rule is of considerable importance, given the provisions of s 89(1) of the Act which restricts appeals to this court against an arbitrator’s award to any question of law alone.


[16] Mr Boltman, who appeared for the respondent, contended that this court’s discretionary power to condone the late noting of an appeal can only be exercised where a proper notice of appeal has been filed. He submitted that this court would not have jurisdiction to condone the late noting of an appeal where no notice had been filed and that an application for condonation can only be brought once a notice of appeal has been filed.


[17] Mr Boltman relied upon a dictum of Parker AJ 3 where the following was stated:


‘In all this it must be remembered that what s 89(3) of the Labour Act empowers the court to do – in the exercise of a discretion, as I have said previously – is to condone the late noting of an appeal. The statutory language admits of no other construction. And, I should say, ‘appeal’ in that subsection means indubitably a proper appeal, as Ms De Jager submitted. Where there is no proper notice of appeal, and accordingly no appeal, as is in the present proceeding, it matters tupence if what is masquerading as a notice of appeal was delivered within the statutory time limit. There is simply no appeal that has been noted; and as a matter of law and logic if there is no appeal there is nothing whose late noting the court may condone: there is simply nothing for the court to condone in terms of s 89(3) of the Act.’



[18] Mr Marcus, who appeared for applicant, countered that a notice of appeal was filed after this point was taken and had thus addressed it. He also submitted that it was also clear from the founding affidavit upon what ground the arbitration’s award was challenged. This was that it was procedurally and substantively unfair because the arbitrator failed to take into account that there was a decision made by the internal appeal chairperson and that the respondent’s refusal to comply with the appeal chairperson’s decision rendered the dismissal substantively and procedurally unfair. He submitted that this was a question of law alone.


[19] This court has the power in s89(3) to condone the late noting of an appeal on good cause shown. The ordinary meaning of that statutory provision plainly presupposes and is premised upon the noting of an appeal which is late, as was held by Parker AJ. 4 I agree that an application for condonation under s89(3) can thus only be brought once a notice of appeal has been filed out of time the purpose of seeking condonation for its late filing.


[20] At first blush, this may seem to be a highly technical construct upon s89(3). But it plainly is not. There are good reasons which underpin why the legislature has seen fit to adopt the wording of s89(3) which is premised upon the existence of a notice of appeal for which condonation is sought when an application is brought. As was stressed by Parker, AJ condonation can only be given if the notice is a proper one in the sense of raising a point of law only and complying with rule 17 by setting out concisely and distinctly which part of the decision is appealled is against and the grounds of the appeal. In the absence of meeting these requisites, condonation would not be granted.


[21] A respondent should also be entitled to deal with the notice of appeal in its answering affidavit in case it does not deal with a question of law alone and scrutinise the grounds raised. Although these aspects may give rise to legal argument which can be addressed in argument at the hearing, there may be occasions where a respondent may want to deal with its contents in the answering affidavit. But apart from that, it seems to me that a respondent is entitled to consider the notice at the time when the condonation application is brought, as is thus required upon an ordinary meaning of s89(3).


[22] It accordingly follows that the application for condonation is defective and has not been properly brought under s89(3) to condone the late filing of a notice of appeal which had not even been filed. This is also demonstrated by the second paragraph of the notice of motion, seeking an order to reinstate the appeal before and without an appeal even having been noted.


[23] It follows that the first preliminary point is upheld and the application is dismissed for that reason.


[24] At the hearing of the application, I also heard full argument on the merits of the condonation application which included the merits of the appeal because the requisites of good cause require an applicant to establish both prospects of success on appeal and an acceptable explanation for the default in failing to comply with the 30 day period to note the appeal.


The applicant’s explanation


[25] I have already set out the gist of the applicant’s explanation. In the answering affidavits, some aspects were dealt with. The respondent secured an affidavit from Ms Mugaviri who denied crucial aspects of the applicant’s version. Ms Mugaviri however went further and raised matter which was not even referred to in the applicant’s founding affidavit.


[26] Ms Mugaviri said that the applicant contacted her already in August 2012 for advice with regard to the internal disciplinary hearing and appeal as well as lodging a complaint afterwards at the Labour Commissioner’s office. Ms Mugaviri further denied stating that she needed to do some research. Ms Mugaviri also stated that the award was only provided to her on 25 March 2013 – and not on 18 or 19 March, as averred by the applicant. She further stated that her secretary contacted the applicant on 4 April and requested a deposit of N$2 000 in order for her to provide assistance and to cover perusal of the award. The applicant was informed that a deposit and further instructions were required. But no deposit or instructions were received and various attempts were made to call him on his cell phone and his number was unreachable. Ms Mugaviri denied communicating with the applicant as alleged by him on 1, 2 and 7 April 2013 and said that the only communication with him over that period had been when her secretary requested the deposit and instructions.


[27] The respondent also criticises the adequacy of the applicant’s explanation in the answering affidavit.


[28] In reply, the applicant concedes certain inaccuracies contained in his founding affidavit in view of what is stated by Ms Mugaviri. He accepts that she only received the award on 25 March and says that he had sent it on Friday 22 March 2013 – a working day sandwiched between Independence Day, the previous day and a weekend. But he accepts that his statement of sending it on 18 or 19 March was thus incorrect. He also accepts that his statement in his founding affidavit that he contacted her on about 9 March after attending at the prosecutor’s office in Tsumeb was also incorrect and says this was during about 8 to 16 August (as had been stated by her). He however denies in reply that a deposit was sought from him and also disputes other aspects of Ms Mugaviri’s version.


[29] Mr Boltman submitted that the Plascon-Evans rule5 is to be applied in this opposed application and that should approach the disputed facts on the basis of the respondent’s version and the admitted facts contained in the applicant’s founding affidavit. When I asked Mr Boltman to refer me to any authority in support of the application of that test to interlocutory applications and especially those for condonation, he was understandably unable to do so. That is because it does not apply to applications of this nature and rescission applications for that matter. A preferred approach would be to consider the totality of the facts deposed to by both parties, the incidence of the onus and the probabilities.


[30] In my view, the probabilities favour Ms Mugaviri’s version of requiring the payment of a deposit before perusing the record and giving advice. In reaching this conclusion, I take into account much of the other matter which she stated which was at variance with what was in the founding affidavit and which the applicant was constrained to concede in reply.


[31] Given this conclusion, it follows from it that I find the applicant’s explanation for his default to be inadequate and unacceptable. It is well settled that an application for condonation must satisfy both elements of good cause. The application would thus also fall to be dismissed for this reason.


Prospects of success


[32] But there is a yet further reason to dismiss this application. The appeal does not in my view enjoy prospects of success. The only ground of appeal raised in the notice which was eventually forthcoming – although alluded to in the founding affidavit – is that the arbitrator failed to take account the appeal chairperson’s recommendation and the contention that the respondent’s refusal to ‘comply’ which it rendered it procedurally and substantively unfair.


[33] Mr Marcus submitted that the internal appeal chairperson was binding upon the respondent. He argued that the appeal was out sourced and that the outcome was binding upon the respondent. I do not agree.


[34] When appeals or hearings are chaired by an outside person, which would not be uncommon when dealing with members of management, such as the applicant, a recommendation would need to be made to the employer as to a sanction. That is because it is obviously the respondent which would need to implement or give effect to such a recommendation. It may also depend upon the terms of reference of such an appeal and the terms of the disciplinary procedures of that employer or what is contained in a collective agreement if the issue is covered by those instruments. 6 In this instance, the right of appeal is referred to in the disciplinary hearing procedural document as an appeal being ‘lodged with senior management.’ As the applicant was a member of management, it is understandable that an outsider was engaged to hear the appeal (and make a recommendation).


[35] What is to be considered is whether the arbitrator’s finding of procedural fairness, considered in the context of the facts as a whole, was incorrect. In my view it was not.


[36] In her award, the arbitrator correctly found that the applicant was aware of the respondent’s zero tolerance policy towards alcohol and drug use. At the disciplinary hearing, he pleaded guilty to the main charge of being under the influence of alcohol. The respondent’s policy (of zero tolerance on alcohol) was, according to the internal appeal, relied upon at the disciplinary hearing and the applicant did not contest it.


[37] At the internal appeal where the respondent was not represented, the applicant contested the applicability of the policy and said that it was a work in progress and was not yet implemented. The chairperson of the internal appeal rightly rejected that opportunism on his side and found that he was bound by his plea and the matters not put in issue at the hearing such as the policy which he had not contested at the hearing. The chairperson was however obviously not aware of the terms of the policy. This is because she recommended that a zero tolerance policy should be implemented by the respondent. Had she been aware of its terms, no doubt her recommendation would have been vastly different and she would not have recommended a lighter sanction.


[38] At the arbitration hearing, the arbitrator correctly accepted evidence on behalf of the respondent that the policy had been implemented prior to the applicant being found to be under the influence. The arbitrator also correctly held that the applicant was aware of the policy on all the facts before her. Apart from the evidence to that effect, no doubt she also took into account the applicant’s seniority and his management position on the mine. One of the responsibilities of his position which emerged from an exhibit 7 handed in by the applicant at the hearing albeit in a different context – is to ‘take responsibility for OH&S (occupational health and safety) and convey this to everybody.’ It was also a condition of his employment (in his letter of appointment) that he undertook to respect and obey all safety and health rules laid down by the employer and to require employees under his supervision to do the same. Quite how he could contend that he was unaware of the policy, given his responsibilities, is inconceivable.


[39] Furthermore the mining regulations referred to in evidence also clearly prohibit both employees and visitors to a mine from being under the influence of alcohol at a mine. It would certainly in my view have in any event constituted an implied or tacit term of his conditions of employment that he could not report for work under the influence of alcohol. This would in my view be the case in any employment setting, but particularly so at a mine where the safety of fellow employers is paramount and where the potential consequence of errors of judgment as a result of being under the influence of alcohol may be very serious and even fatal to other employees but also to nearby communities and the environment.


[40] The internal appeal chairperson’s recommendation was based upon the absence of a zero tolerance policy and without knowledge of the terms of the mining regulations. Implicit to the applicant’s approach at that appeal hearing was to ensure that the chairperson would accept the absence of a zero policy on alcohol being applicable to him, which then occurred. The arbitrator correctly on evidence found that this basis to her recommendation was false in that the applicant was aware of the policy whose effect was of zero tolerance and that it was applicable to him. He not only failed to disclose to the appeal chairperson the basis of the policy but also asserted that it did not apply to him. He cannot then in my view be heard to complain when the respondent corrects the appeal chairperson’s misapprehension as to the consequence of being under the influence of alcohol and the consequent confirmation of the dismissal. The arbitrator thus did not need to take into account the recommendation of the internal appeal chairperson by reason of the entirely faulty and flared basis for that recommendation induced by the applicant.


[41] The authorities relied upon by Mr Marcus8 are in my view distinguishable. They were decided in the context of an internal appeal finding which in terms of a disciplinary code or collective agreement made that appeal outcome binding upon that employer. In this instance, the appeal lay to senior management which engaged an outside lawyer to hear the appeal and make a recommendation, given the fact that the applicant was a member of the mine’s management. Whilst I in any event agree with the general proposition posited by Mr Marcus than where an employer considers the imposition of a heavier sanction on appeal that that imposed at a hearing, depending upon the terms of the procedure, an employee should be entitled to be heard on that issue. But this proposition does not apply to the circumstances of this case. The procedure, viewed as whole, was in my view fair, as was found by the arbitrator. But a further distinguishing feature of this case is that the applicant appealed internally against his dismissal which was ultimately upheld. The applicant was at risk of that outcome and was afforded an opportunity to address that eventuality before the internal appeal chairperson whose recommendation was on reasonable grounds not followed and the sanction imposed at the hearing was ultimately confirmed. The position may be different where a lighter sanction is imposed at a hearing but sought to be changed to a more onerous one on appeal by an employer. The issue is one of procedural fairness so as to afford an employee the opportunity to address the prospect of a more onerous sanction. That did not arise in this matter. The same sanction was imposed by the employer, even though a recommendation was made to the contrary. As I have said, the procedure, viewed in its entirety, was not unfair.


[42] I also take into account that the applicant had pleaded guilty at the disciplinary hearing and the appeal chairperson’s correct approach that it was not open to the applicant to challenge the finding of guilt in his internal appeal. A finding by an external lawyer, sitting as chairperson, that the guilty finding was fatally flawed and should be set aside, may be another matter. But in this instance, the applicant was appealing against the sanction, asserting that the appropriate sanction for being under the influence of alcohol should not be a dismissal. In appealing, he was thus not at risk of a more severe sanction being imposed – which may require the right to be heard if it were to be considered. The issue was whether a dismissal was the appropriate sanction in the circumstances. The appeal chairperson, without knowing of the terms of the respondent’s zero tolerance policy, recommended the imposition of a less severe sanction. It was clear to the respondent that this recommendation rested on a faulty premise – unawareness of a zero tolerance policy. The respondent was not in these circumstances bound to accept her recommendation and found a dismissal to be appropriate and imposed it.


[43] I thus cannot fault the finding of the chairperson that the procedure, viewed as a whole, was not unfair, given her correct factual finding, not open to be challenged on appeal, that the applicant was aware of the terms of the policy and its applicability to him. There is in my view clearly no substance in the contention that the dismissal was procedurally and substantively unfair when considered as a whole.


[44] There are thus in my view no prospects of success in the appeal. This would also and of its own result in the dismissal of the application.


[45] The order I thus make is:


a) The application is dismissed;


b) There is no order as to costs.




D F SMUTS


Judge

APPEARANCES



APPLICANT/APPELLANT: N Marcus


Instructed by Nixon Marcus Public Law Office, Windhoek


RESPONDENTS: J Boltman


Instructed by GF Köpplinger Legal Practitioners


1Act 11 of 2007.

2S 89(2) of the Act.

3In Pathcare Namibia (Pty) Ltd v Du Plessis (LCA 60/2012) [2013] NALCMD 43 26 November 2013 at par 8.

4Pathcare supra at par 8.

5As set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 635 (C) as consistently followed by the courts in Namibia.

6South African Municipal Workers Union obo Mahlangu v South African Local Government Bargainmy Council and Others (2011) 32 ILJ 2738 (LC); County Fair Foods (Pty) Ltd v CCMA & Others [2003] 2 BLLR 134 (LAC); SA Revenue Services v CCMA & Others (2010) 31 ILJ 1238 (LC).

7An advertisement advertising his position.

8South African Municipal Workers’ Union obo Mahlangu v South African Local Government Bargainmy Council and Others (2011) 32 ILJ 2738 (LC); County Fair Food (Pty) Ltd v CCMA & Others [2003] 2 BLLR 134 (LAC); SA Revenue Services v CCMA & Others (2010) 31 ILJ 1238 (LC).

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