Court name
Labour Court Main Division
Case number
1 of 2013
Title

DHL International Namibia v Kuritjinga and Others (1 of 2013) [2014] NALCMD 1 (24 January 2014);

Media neutral citation
[2014] NALCMD 1
Coram
Ueitele J










REPUBLIC
OF NAMIBIA




LABOUR
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT








Case
no: LCA 1/2013





DATE:
24 JANUARY 2014








In
the matter between:






DHL
INTERNATIONAL
NAMIBIA............................................APPELLANT





And





ZEDEKIA
KURITJINGA...........................................FIRST
RESPONDENT





PHILIP
MWANDINGI N.O..................................SECOND
RESPONDENT





THE
LABOUR COMMISSIONER.........................THIRD
RESPONDENT








Neutral
citation: DHL International Namibia (Pty) Ltd v Kuritjinga (LCA
1/2013) [2014] NALCMD 1 (24 January 2014)





Coram: UEITELE,
J





Heard: 21
June 2013





Delivered:
24 January 2014





Flynote:
Labour law
– Arbitration - Appeals from arbitrator’s
award- Such only permissible on questions of law - Requirements for
Court to determine when erroneous findings of fact not substantiated
by evidence fall under rubric of questions of law restated.





Summary:





First
respondent was dismissed after a disciplinary hearing for allegedly
physically assaulting a fellow employee. After unsuccessful internal
appeal proceedings, first respondent, on 10 August 2011, referred the
matter to conciliation and arbitration, submitting that his dismissal
was both procedurally and substantively unfair. The arbitrator held
that the dismissal of the first respondent was procedurally and
substantively unfair and ordered that the first respondent be
reinstated and awarded compensation in the amount of N$96 900-00 in
favour of the respondent. The appeal lies against the award of the
arbitrator.





Held
that in determining whether an appeal lies on a question of law
alone, the question is whether on all the available evidence, in
respect of a specific finding, when viewed collectively and applying
the legal principles relevant to the evaluation of evidence, the
factual conclusion by the arbitrator was a reasonable one in the
circumstances.





Held
further that the finding by the arbitrator that once the respondent
raised the issue of ‘self-defence’, the chairperson of
the disciplinary hearing ought to have entered a plea of ‘not
guilty’ and afford the respondent an opportunity to place its
version of events before the disciplinary committee and call
witnesses to testify as to what really transpired, and whether he
acted in ‘self-defense’ or ‘retaliation’ can
in the Court’s view, not be faulted.





Held
further that the arbitrator considered the substantive fairness of
the dismissal of the respondent. The arbitrator made a factual
finding that the appellant did not discharge the burden resting on it
and there was accordingly no valid reason for the dismissal. The
second ground of appeal was found to be without merit and dismissed.





Held
further that the court was not convinced that the finding by the
arbitrator was vitiated by lack of reason warranting this court to
interfere with that finding.





Held
further that it is the appellant who wanted to rely on the CCTV
footage to proof that the respondent unprovoked assaulted Mr
Brussels. The Court further found that in the absence of the
production and viewing of the CCTV footage the evidence of Mr De
Jager is inadmissible hearsay evidence.











ORDER








(a)
The appeal is dismissed. For the avoidance of doubt, the award of the
arbitrator dated 13 December 2012 is varied (where necessary) to
read:





(1)
The dismissal of Zedekia Kuritjinga by DHL Express Namibia (Pty) Ltd
is both procedurally and substantively unfair.





(2)
The appellant is ordered to reinstate the respondent in the position
in which he would have been had he not been so dismissed, i.e.
retrospectively to the date of his dismissal which is 11 May 2011.





(3)
The appellant is ordered to pay to the respondent back pay for the
whole period of dismissal (being 11 May 2011 to 24 January 2014).





(b)
No order as to cost.








JUDGMENT





UEITELE,
J





A
Introduction




[1]
This is an appeal against an award given by the second respondent (I
will, for ease of reference, in this judgment refer to the second
respondent as the arbitrator) in favour of the first respondent on
the 13th December 2012.





[2]
This appeal lies against the arbitrator’s findings that:





1.
the dismissal of Zedekia Kuritjanga by DHL Express Namibia (Pty) Ltd
is both procedurally and substantively unfair;





2.
the respondent DHL Express Namibia (Pty) Ltd, must either reinstate
the Applicant Zedekia Kuritjanga, in the position earlier occupied by
him, with compensation for loss of income covering the period from
his unfair dismissal date, 10 May 2011, to the date of award, (N$ 5
100.00 x 19 months), being an amount of N$96 900.00. Alternatively
the Respondent must re-employ the Applicant in an equivalent
position, with same conditions of service. Reinstatement or
re-employment 1st January 2013.





3.
payment of the amount of N$96 900.00 to be made at the office of the
Labour Commissioner, by cheque made out in Applicant’s name by
not later than the 30th December 2012 alternatively a legally
acceptable proof be provided to the Labour Commissioner /Arbitrator,
that such payment was made directly to the applicant, by no later
than the 30th December 2012.’





[3]
I will first set out the background facts which gave rise to the
arbitrator making the award as quoted above, thereafter I will set
out the grounds upon which the appellant’s appeal is founded,
then the applicable legal principles and I will then finally apply
the legal principles to the facts of this appeal.





B
Background





[4]
The first respondent (I will for ease of reference, in this judgment
refer to the first respondent as the respondent), was on 01 October
2008 employed by the appellant as a courier driver. On 01 May 2011 an
incident occurred at the appellant’s business premises. The
incident is an alleged assault by the respondent of a fellow
employee. On 03 May 2011 the respondent was suspended with full pay
from his employment and on that same day (i.e. 03 May 2013) he
received a notice to appear at the disciplinary hearing scheduled for
10 May 2011.





[5]
On 10 May 2010 the disciplinary hearing commenced as scheduled. At
the hearing the respondent purportedly pleaded guilty and was on his
own plea found guilty and dismissed. The respondent noted an appeal
against the disciplinary chairperson’s finding and sanction.
The first respondent was unsuccessful in his appeal against the
disciplinary chairperson’s finding and the appeal was
ultimately dismissed and the finding and sanction “a quo”
was upheld.





[6]
After unsuccessful internal appeal proceedings, the respondent, on 10
August 2011, referred the matter to conciliation and arbitration,
submitting that his dismissal was both procedurally and substantively
unfair. The arbitrator found that the respondent’s dismissal
was procedurally and substantively unfair and ordered that the
respondent be reinstated and awarded compensation in the amount of
N$96 900-00 in favour of the respondent. As I indicated above this
appeal now lies against that award.





C
Arbitration proceedings





[7]
The complaint lodged by the respondent with the Labour Commissioner
(the third respondent) is one of unfair dismissal. In the brief
summary of facts annexed to the referral form, Form LC 21 the
respondent amongst others alleged that on 01 May 2011 whilst on duty
he was assaulted by his supervisor. He further alleged that
immediately after the assault he called his manager and informed the
manager that his supervisor has just assaulted him and that the
supervisor was threatening to assault him (the respondent). He
further stated that as soon as he put down the phone the supervisor
again approached him threatening to further assault him, out of self
defence the respondent hit the supervisor. As a result of that, he
was charged with misconduct, was found guilty and dismissed. The
respondent further alleged that the disciplinary hearing held on 10
May 2011 was a ‘farce‘ as no evidence was led and that he
was denied the opportunity to be heard by an impartial chairperson.





[8]
The appellant on the other hand denied that the disciplinary hearing
was a farce, it alleged that respondent was charged with misconduct,
given sufficient time to prepare for the hearing which it alleged met
the procedural requirements for a fair hearing. As regards the
substantive fairness the appellant admitted that the respondent was
assaulted by the supervisor. The respondent however later came back
and assaulted the supervisor. Appellant argued that if the respondent
had not returned and assaulted the supervisor in a retaliatory manner
he would not have found himself in the position he was.





[9]
At the arbitration hearing the appellant called four witnesses to
prove its case. The first witness was a certain Mr De Jager who acted
as the initiator at the internal disciplinary hearing. The evidence
of this witness mainly dealt with what transpired at the disciplinary
hearing. He testified that he investigated the charges against the
respondent. This witness further testified that his investigations
included viewing camera (CCTV) footage and taking statements from eye
witnesses. He testified that at the disciplinary hearing the
respondent’s rights were explained to him, which included the
right to representation by a fellow employee. He further confirmed
that the appellant’s procedures only allow representation by a
fellow employee. He could not recall the respondent having indicated
during the hearing that day that he wanted external representation
and why.





[10]
Mr De Jager further testified that it was on a Sunday when a security
guard phoned him, stating that two employees were fighting. He
testified that the respondent also phoned him (i.e. De Jager) and
informed him that his supervisor just hit him on his face. He also
managed to speak to the other person. While he and that person were
conversing the phone went silent. He testified that he viewed the
video (CCTV) footage which confirmed the altercation between the two,
and the fact that it was the supervisor who first hit the respondent.
He continued to testify that the video (CCTV) footage revealed that
the two were then separated for about 10 minutes, however at one
point while the supervisor was walking and conversing on his mobile
phone the applicant followed him, and hit him on the face from
behind. He testified that from the video footage he could not observe
any provocation from supervisor. To his knowledge respondent pleaded
guilty to the charge of assault. It is appropriate to pause here and
observe that the video (CCTV) footage testified to by Mr De Jager was
never viewed at the internal disciplinary hearing, internal appeal
hearing nor was it viewed or submitted as an exhibit at the
arbitration hearing.





[11]
The second witness to testify on behalf of the appellant was a
certain Mr Gebhard Shigwedha who testified that, on Sunday, 01 May
2011 he saw a certain Jeff (the respondent’s supervisor)
hitting the respondent first and then a fight ensued between them. I
pause here to mention that, this person’s names appear to be
Jeff Russell, but I will, in this judgment refer to him as the
witnesses were referring to him (some witness referred to him as
Jeff, others as Brussels and another Russell) in their evidence. The
witness further testified that Linus (the third witness), separated
the fighting parties). The witness continued and testified that
almost two to three minutes after the fighting parties were
separated, Jeff, who had gone into the warehouse, came out of the
warehouse and was busy conversing on his phone. Respondent came
running and hit Jeff, on the head from behind.





[12]
The third witness to testify on behalf of the appellant was a certain
Mr Linus Kataparo who testified that on Sunday 01 May 2011 the
respondent and another employee came out of the office. He then
testified that he saw Jeff hitting the respondent on the head. He
(the witness) then came and stopped the fight. After he stopped the
fight he contacted the manager by telephone and everybody (i.e. the
supervisor and the respondent) went back to do their job. Jeff went
back in the warehouse and respondent went into the Kombi doing his
paper work. About five minutes later he saw Jeff coming out of the
warehouse and the respondent ran after Jeff and hit him from behind
with a fist and Jeff hit himself against the car.





[13]
The fourth witness to testify on behalf of the appellant was a
certain Mr Tobie Wiese who testified that he was the chairperson at
the internal disciplinary hearing. Mr Wiese testified that at the
disciplinary hearing:





(a)
the respondent was asked whether he will represent himself and he
answered in the affirmative;





(b)
the respondent was asked whether it was fine if the proceedings were
to be conducted in the English language and he answered in the
affirmative;





(c)
the respondent pleaded guilty when he was asked to plead. Mr Wiese
further testified that he asked the respondent whether he knew the
difference between guilty and not guilty and the respondent again
answered in the affirmative;





(d)
that after the respondent indicated that he understood the difference
between guilty and not guilty he asked the respondent to plead, the
respondent pleaded guilty and he accepted respondent’s plea of
guilty.





(e)
that it is standard practice that when a person pleads guilty no
evidence is led because that person would have admitted his or her
guilt;





(f)
he explained to the respondent that once he has pleaded guilty the
hearing will proceed to hear mitigating and aggravating
circumstances;





(g)
after hearing mitigating and aggravating circumstances he imposed the
sanction of dismissal as prescribed in the appellant’s
disciplinary code’.





[14]
In cross examination Mr Wiese was asked whether the appellant
provided him with a copy of the appellant’s disciplinary code
and procedures. His answer was that he was only provided with part of
that document and not the whole document (i.e. disciplinary code and
procedures) itself. He was also asked whether the victim of the
alleged assault was present at the disciplinary hearing and his reply
was in the negative.





[15]
On a question by the arbitrator whether the respondent initially
pleaded not guilty to the charge and only later changed his plea to
one of guilt Mr Wiese’s reply was as follows and I quote
verbatim the exchange between the arbitrator and Mr Wiese:





Chairperson:





So
is it correct that initially he pleaded not guilty?





Mr
Wiese:





Yes
whereby I came to the impression that the employee was not clear as
to what he was pleading, and it is merely on a fact to get certainty
from him that he is sure what he is pleading. He by his own accord
changed his plea and pleaded guilty.’1





[16]
After Mr Wiese testified, the appellant closed its case and the
respondent had to testify. The respondent testified that he had a
fallout with his supervisor who refused to assist him with
work-related queries. He testified that he had to collect parcels
from the airport but officials at the airport were refusing to give
him the parcels because of some discrepancies in the paperwork. He
proceeded to testify that whilst he was at the airport he contacted
his supervisor Mr Brussels who refused to assist him and instead
threatened to assault him if he arrived at the warehouse (appellant’s
business place) without the parcels.





[17]
The respondent further testified that he managed to get some of the
parcels from the airport and drove back to the workplace where he met
his supervisor who confronted him and later physically assaulted him.
He reported the matter to the manager, a certain Mr De Jager who
promised to talk to Mr Brussels. The two were separated by the
security officials on duty, whereafter each went to do his work. He
testified that Brussels went into the warehouse and he went in the
Kombi to continue with his work. He continued and testified that a
few minutes later, his supervisor came out of the warehouse, pushed
him and was trying to remove something from his pocket, he did not
know what it was. He then hit his supervisor‘s hand and the
object fell from the supervisor’s hand, the security guard then
came and separated them gain.





[18]
He continued and testified that on the 03rd day of May 2011 he was
suspended from work and informed to appear at a disciplinary hearing
on 10 May 2011, he further testified that when he was handed the
suspension letter he was informed that the company does not allow
external representation that is why he came without any
representative to the disciplinary hearing. He appeared at the
disciplinary hearing as instructed and when asked how he pleads to
the charge against him he said he pleaded not guilty, after pleading
not guilty he was never given opportunity to state his case.





[19]
After the evidence was led and the representatives of the parties
submitted arguments, the arbitrator found that the disciplinary
hearing was procedurally flawed and therefore procedurally unfair.
He justified his conclusions as follows (I will in detail quote his
reasoning):





The
parties reached consensus that the hearing which was conducted did
not comply with the stipulations of the Respondent’s
procedures. Specifically the procedures stated on page 4 para 6.2.2…





The
other issue highlighted during the hearing was the question of how
the Applicant pleaded during the inquiry. There was conflicting
testimonies, as to what really transpired. One would expect two
witnesses both of whom were present at the said hearing to
corroborate each other on what transpired. However one witness
testified that the Applicant pleaded not guilty when he was asked how
he wanted to plead. The chairperson then had a discussion with him
which either resulted in the applicant changing his plea to guilty
plea, or simply the chairperson decided to enter a guilty plea for
whatever reason.





However,
another witness equally called by the respondent testified that the
applicant pleaded guilty right away. Now I am not sure whom to
believe. To add insult to injury, the chairperson of the appeal
hearing on page two of his finding stated the following:





In
studying the recorded minutes, it is evident that the applicant at
first pleaded not guilty, then after proper explanation by the
chairperson as to the allegation and…”





Furthermore,
in the chairperson’s own minutes, on page six, (although these
minutes were never admitted into record, having only been attached to
respondent’s heads of arguments, delivered some days after the
arbitration was concluded, in the applicant’s absence, and as
such the applicant did not see what was submitted by the respondent)
it is clear that when the applicant was asked to plead, he pleaded:
“not guilty”. A long argument with the chairperson then
ensued on why he was pleading ‘not guilty’ etc. it was
only after these long arguments that the applicant changed his plea
from ‘not guilty’ to ‘guilty’. The applicant,
after his ‘not guilty’ plea, made it clear that it was
because he was acting in self-defense as the victim wanted to assault
him. The chairperson however came up with other issues of ‘mitigating
circumstances’, which the applicant at one point indicated that
he did not understand what it was.





Under
normal circumstances, since the applicant was raising the issue of
‘self-defence’, one expected the chairperson to enter the
plea of ‘not guilty’ as initially pleaded by the
applicant. He would then call witnesses to testify as to what really
transpired, and whether it was a ‘self-defense’ action or
‘retaliation’ by the applicant.





The
applicant would then have been accorded opportunity to call
witnesses, especially having earlier indicated that he wanted to call
one witness, as well as to hear the evidence the respondent had
against him and importantly cross examine those witnesses. It would
have been only after the conclusion of this procedure that the
chairperson would be in a position to make a finding of either guilty
or not guilty …





The
Applicant’s contention is that he acted in self-defense when he
did whatever it is which he did that day. His contention is further
that, Mr Bussel who had earlier assaulted him, was threatening to
assault him again when he acted in self-defense which is regarded as
retaliation by the Respondent. The fact is at no point did the
Applicant admit that he was retaliating when he assaulted Mr Bussels.
Therefore it is my finding that, the chairperson of that hearing
misdirected himself when he decided to enter the guilty plea after
the Applicant has pleaded not guilty to the assault charges after
was read out to him.





The
other issue is the fact that no proper investigation was conducted,
as far as no statement from the Applicant was obtained by the
investigation Officer. This compounded with the alteration of his
guilty resulted in a situation where his version of what really
took place that day, including his witness he earlier indicated he
wanted to call to testify was never taken into consideration.





It
is subsequently my finding on a balance of probabilities that the
dismissal of the Applicant cannot be said to procedurally fair for
the many reasons stated herein above’. 2





[20] As
regards the question whether or not the respondents’ dismissal
was for a valid reason, the arbitrator made the following finding :(
I again quote the arbitrator verbatim):





The
lengthy arguments between the parties relate to whether the Applicant
was retaliating when he punched Brussel or he acted in self-defence
as Brussel wanted to attack him again. I also found the witnesses
called by the Respondent somehow unreliable in their testimony and
thus not credible. I will thus be careful as to how much weight to
attach to their testimony.





It
is important to mention that the Respondent carried the burden to
prove that the dismissal was effected in accordance with a correct
and fair procedure and that such dismissal was effected for a fair
and valid reason. While the respondent claimed that there were some
video footage covering the incident, which could have made it easier
to see whether indeed the applicant retaliated, or acted in
self-defense when Brussels was again threatening to attack him, the
respondent is unable to realize that it was for it to prove that and
not Applicant. Subsequently the claim that the video footages, dvd,
was given to the Applicant, (which in any event he denied), does not
help the respondent’s case. It is not clear why the video
footage concerned was not viewed by the chairperson of the
disciplinary hearing, to resolve the claim of self-defense and the
counterclaim of retaliation.





What
is clear is that the parties are unable to agree whether the
applicant acted in self defence or he did retaliate. He could only
plead guilty if he agreed that he did retaliate which does not seem
to be the case. It is also important to note that Mr Brussels whom
the Respondent alleged to have been unprovoked assaulted by the
Applicant was never called to testify as to exactly how he was
assaulted. This could have enabled the applicant to put questions to
him. It is not clear why he was not called, initially at the
disciplinary hearing and then also at the arbitration.





It
is subsequently my finding that the respondent failed, on a balance
of probabilities to discharge the onus to prove that the dismissal of
the applicant was substantively fair.’3





D
Grounds of Appeal





[21]
As I have indicated above the appellant on 07 January 2013 gave
notice of its intention to appeal against the above findings by the
arbitrator. Its grounds of appeal were set out in the Notice of
Appeal and that Notice was amended on 26 February 2013 and the
grounds are that:





(a)
the arbitrator erred in law in finding on the facts that the
respondent’s dismissal had been procedurally unfair;





(b)
the arbitrator erred in law in finding that he did not have to
‘dwell on issues of substantive fairness’ due to him
having already found that the disciplinary hearing had been
procedurally unfair;





(a)
the arbitrator erred in law in finding on the facts that the
respondent acted in self-defence and that his combined actions did
not amount to assault;





(b)
the arbitrator erred in law in finding that due to the fact that
certain CCTV footage of the alleged incident was not made available
by the appellant, that this had caused the appellant not to discharge
its onus to prove the respondent’s guilt respectively;





(c)
the arbitrator erred in law in finding on the facts that the
respondent had proved that he did indeed suffer damages in the amount
of N$96,900.00.





[22]
In terms of the provisions of section 89(1)(a) of the Labour Act,
20074
a party to a dispute may appeal to the Labour Court against an
arbitrator’s award made in terms of section 86 ‘on any
question of law alone’. The question which is confronting me
in this appeal is the question whether the appellant’s appeal
lies on questions of law alone. Before I answer that question I will
briefly restate how this court has pronounced itself on appeals based
on ‘questions of law alone’.





E
The question of law





[23]
The provisions of section 89 of the Act were considered by this Court
in the unreported judgment of Shoprite Namibia (Pty) Ltd v Faustino
Moises Paulo5
: where Parker, J said:


The
predicative adjective ‘alone’ qualifying ‘law’
means ‘without others present’. (Concise Oxford
Dictionary, 10th ed) Accordingly, the interpretation and application
of s. 89(1)(a) lead indubitably to the conclusion that this Court is
entitled to hear an appeal on a question of law alone if the matter,
as in the instant case, does not fall under s. 89(1)(b). A ‘question
of law alone’ means a question of law alone without anything
else present, e.g. opinion or fact. It is trite that a notice of
appeal must specify the grounds of the appeal and the notice must be
carefully framed, for an appellant has no right in the hearing of an
appeal to rely on any grounds of appeal not specified in the notice
of appeal. In this regard it has also been said that precision in
specifying grounds of appeal is ‘not a matter of form but a
matter of substance … necessary to enable appeals to be justly
disposed of (Johnson v Johnson [1969] 1 W.L.R. 1044 at 1046 per
Brandon, J).





[24]
The full bench of the High Court (per Mtambanengwe, J) in Rumingo and
Others van Wyk6
stated the following on the issue of a question of law:





The
test in appeals based on a question of law, in which there has been
an error of fact was expressed by the South African Appellate
Division in Secretary for Inland Revenue v Guestyn Forsyth &
Joubert 1971 (3) SA 567 (A) at 573 as being that the appellant must
show that the Court’s conclusion ‘could not reasonably
have been reached’.





[25]
The full bench of the High Court (per Hannah, J) in Visagie v Namibia
Development Corporation7
stated that the Labour Court (in this matter the arbitrator) was the
final arbiter on issues of fact and that it was not open to this
Court on appeal to depart from a finding of fact by that Court (in
this matter the arbitrator). Hannah, J referred with approval to the
decision of the Supreme Court of Appeal in South Africa in the matter
of Betha and Others v BTR Sarmcol, A Division of BTR Dunlop Ltd 8
where Scott, JA said the following:





In
the present case, of course, this Court, by reason of the provisions
of s 17 C(1)(a) of the Labour Relations Act 28 of 1956, is bound by
the findings of the LAC. According, the extent to which it may
interfere with such findings is far more limited than the test set
out above. As has been frequently stated in other contexts, it is
only when the finding of fact made by the lower court is one which no
court could reasonably have been made, that this Court would be
entitled to interfere with what would otherwise be an unassailable
finding. (See Commissioner for Inland Revenue v Strathmore
Consolidated Investments Ltd 1959 (1) SA 469 (A) at 475 et seq;
Secretary for Inland Revenue v Trust Bank of Africa Ltd 1975 (2) SA
652 (A) at 666 B – D). The enquiry by its very nature is a
stringent one. Its rationale is presumably that the finding in
question is so vitiated by lack of reason as to be tantamount to no
finding at all. The limitation on this Court’s ordinary
appellate jurisdiction in cases of this nature apply not only to the
LAC’s findings in relation to primary facts, i.e. those which
are directly established by evidence, but also to secondary facts,
i.e. those which are established by inference for the purpose of
establishing a secondary fact is no less a finding of fact than a
finding in relation to a primary fact. (See Magmoed v Janse Van
Rensburg and Others 1993 (1) SA 777 (A) at 810H – 811G). It
follows that it is not open to this Court to depart from a finding of
fact by the LAC merely on the grounds that this Court considers the
finding to be wrong or that the LAC has misdirected itself in a
material way or that it has based its finding on a misconception. It
is only where there is no evidence which could reasonably support a
finding of fact or where the evidence is such that a proper
evaluation of that evidence leads inexorably to the conclusion that
no reasonable court could have made the finding that this Court will
be entitled to interfere.’





[26]
This Court therefore, on the strength of these authorities, is
required to determine as question of law whether on the material
placed before the arbitrator during the arbitration proceedings,
there was no evidence which could reasonably have supported such
findings or whether on a proper evaluation the evidence placed before
the arbitrator, that evidence leads inexorably to the conclusion that
no reasonable arbitrator could have made such findings. Hoff, J 9
put it as follows





The
question is therefore whether on all the available evidence, in
respect of a specific finding, when viewed collectively and applying
the legal principles relevant to the evaluation of evidence, the
factual conclusion by the arbitrator was a reasonable one in the
circumstances’.





F
Consideration of the different grounds of Appeal





The
first ground of appeal





[27]
It must be remembered that the appellant’s first ground of
appeal is that the arbitrator erred in law in finding on the facts
that the respondent’s dismissal had been procedurally unfair.
It thus follows that I have to consider whether, on the evidence that
was placed before the arbitrator, the factual conclusion (namely that
the dismissal of the respondent was procedurally unfair) which he
(the arbitrator) reached was a reasonable one.





[28]
Mr Jones who appeared for the appellant argued that the respondent
was afforded all his rights at the disciplinary hearing and therefore
no procedural irregularity could have occurred. He further argued
that the portion of the appellant’s policy which the arbitrator
held had not been complied with refers to the investigation that
should be undertaken to determine if the complaint was one of
misconduct or one of incapacity and poor work performance. He thus
concluded that the complaint’s disciplinary policy and
procedure which the arbitrator accused the appellant of not
‘slavishly adhering to’ find no application in the
present matter.





[29]
I do not agree with Mr Jones’ submission. The crux of the
procedural irregularity lies not in the fact that, the appellant did
not ‘slavishly adhere to’ its disciplinary policy but in
the fact that the respondent did not get an opportunity to put its
version of events to chairperson of the disciplinary hearing. The
finding by the arbitrator that once the respondent raised the issue
of ‘self-defence’, the chairperson of the disciplinary
hearing ought to have entered a plea of ‘not guilty’ and
afford the respondent an opportunity to place its version of events
before the disciplinary committee and call witnesses to testify as to
what really transpired, and whether it was a ‘self-defense’
action or ‘retaliation’ by the respondent, can, in my
view, not be faulted and is therefore not unreasonable.





[30]
I say the finding of the arbitrator cannot be faulted for the
following reasons. Section 33 (4) of the Labour Act, 2007 in material
terms provides as follows:





(4)
In any proceedings concerning a dismissal-





(a)
if the employee establishes the existence of the dismissal;





(b)
it is presumed, unless the contrary is proved by the employer, that
the dismissal is unfair.





[31]
On a proper construction of section 33(4), it is self-evident that,
where an unfair dismissal is alleged against an employer, the onus to
proof the alleged misconduct lies upon the employer. The employer
must thus lead evidence to prove the existence of an act of
misconduct. In criminal proceedings the State is absolved by section
112 of the Criminal Procedure Act 10
1977 from the obligation to establish a crime committed by an accused
and an accused person can be convicted on the strength of admissions
made by him or her. The Labour Act, 2007 has no provision which is
equivalent to section 112 of the Criminal Procedure Act, 1977. The
appellant’s disciplinary code also does not have a provision
which is equivalent to section 112 of the Criminal Procedure Act,
1977. The appellant’s disciplinary code sets out the procedure
which must be followed at a disciplinary hearing11
. The steps outlined in the disciplinary code are not the steps
followed by the chairperson of the disciplinary hearing. There is no
provision in the appellant’s disciplinary code for the
respondent to be found guilty of misconduct on his own plea of guilt.
I therefore find that the first ground of appeal is not on a question
of law and must thus fail.





The
second ground of appeal





[32]
The appellant’s second ground on which it basis its appeal is
that the arbitrator erred in law in finding that he did not have to
‘dwell on issues of substantive fairness’ due to him
having already found that the disciplinary hearing had been
procedurally unfair. Mr Jones who appeared for the appellant argued
that even if the disciplinary hearing inclusive of the appeal hearing
could be seen to be procedurally flawed, the arbitrator was not
entitled to rely on Rossam v Kraatz Welding Engineering (Pty) Ltd12
because that case dealt with dismissal for poor work performance
and in that case the employee had not been afforded any hearing at
all.





[33]
What Mr Jones does not take cognizance of is the fact that although
the arbitrator made mention of the Rossam v Kraatz Welding 13
case and of the fact that he does not have to consider the merits of
the dismissal, my reading of the record is that the arbitrator in
fact went on and considered the substantive fairness of the dismissal
of the respondent. The arbitrator made a factual finding that the
appellant did not discharge the burden resting on it and there was
accordingly no valid reason for the dismissal. The second ground of
appeal is also without merit and I thus dismiss it.





The
third ground of appeal





[34]
The third ground on which the appellant attacks the arbitrator’s
finding is the allegation that the arbitrator erred in law in finding
on the facts that the respondent acted in self-defence and that his
combined actions did not amount to assault. Mr Jones argued that the
arbitrator acted unreasonably in finding on the facts as testified to
and corroborated by at least three witnesses that the respondent had
acted in self defence when it was undisputed that he waited for three
to ten minutes before he struck his alleged attacker who at the time
was standing with his back to the respondent and conversing on his
cellular phone.





[35]
I am not persuaded by Mr Jones’ submission for the following
reasons. Firstly, there were not three witnesses that corroborated
each other, Mr de Jagger the appellant’s manager was not an eye
witness to the events which occurred on 01 May 2011, so he could not
and did corroborate the evidence given by the two security guards
(i.e. Gebhard Shigwedha and Linus Kataporo). Secondly, it is not
correct to say that it is undisputed that the respondent waited for
three to ten minutes before he struck Mr ‘Brussels’. I
say it is incorrect, ‘to say that it is undisputed that the
respondent waited for three to ten minutes before he struck Mr
Brussels’ because the respondent testified, at the arbitration
hearing, that after they were separated Mr Brussels again approached
him in a threatening manner. By that testimony the respondent is
clearly disputing the allegation that he waited for three to ten
minutes before he struck Mr Brussels. Thirdly, I have read the
arbitrator’s award and nowhere in the award does the arbitrator
make a finding that the respondent acted in self defence. What the
arbitrator found is that, once the respondent indicated that he was
acting in self defence there was no basis upon which the chairperson
of the disciplinary hearing could be satisfied that the respondent
had pleaded guilty to the charge of assault.





[36]
The arbitrator made a credibility finding and Mr Jones did not attack
that finding by the arbitrator and I also could not find how the
arbitrator misdirected himself in that regard. I thus agree with Mr
Rukoro who appeared for the respondent when, he argued that the
finding by the arbitrator cannot be faulted as unreasonable because
there were indeed some discrepancies in the evidence of the two
security guards who were allegedly eye witnesses to the assault of Mr
Brussels by the respondent. The discrepancies may seem minor but they
are material. The discrepancies were pointed out by Mr Rukoro as
being the following: Mr Shigwedha testified that he saw Mr Russell
passing the respondent when he was assaulted from behind by the
respondent. Mr Kataporo on the other hand testified that, he saw the
respondent run after Jeff and hit him from behind with a fist and
Jeff hit himself against the car. I am therefore not convinced that
the finding by the arbitrator is vitiated by lack of reason
warranting this court to interfere with that finding and I
accordingly also dismiss the third ground of appeal.





The
fourth ground of appeal





[37]
The fourth ground on which the appellant attacks the arbitrator’s
finding is the allegation that the arbitrator erred in law in finding
that due to the fact that certain CCTV footage of the alleged
incident was not made available by the appellant, that this had
caused the appellant not to discharge its onus to prove the
respondent’s guilt. I fail to see how the arbitrator acted
unreasonably by finding that the failure by the appellant to produce
the CCTV footage led to the appellant failing to discharge the onus
resting on it.





[38]
What Mr Jones fails to appreciate is the fact that, it is the
appellant who wanted to rely on the CCTV footage to proof that, the
respondent unprovoked assaulted Mr Brussels and that the appellant
was the producer of the CCTV footage. I refer in this regard to the
evidence of Mr De Jagger at the arbitration hearing where he
testified that:





MR
DE JAGER:
It baffles me. It is clear from the video footage that
Mr Kuritjinga came from behind. There was absolutely no provocation
at that point. He came from behind and he hit Mr Brussels in the
face.’ 14
(Underlined for emphasis)




I
have earlier indicated that the CCTV footage was not viewed at the
internal disciplinary hearing or the internal appeal hearing. In the
absence of the production and viewing of the CCTV footage the
evidence of Mr De Jager is clearly inadmissible hearsay evidence. I
therefore also dismiss the fourth ground of appeal.





The
fifth ground of appeal





[39]
The fifth ground on which the appellant attacks the arbitrator’s
finding is the allegation that the arbitrator erred in law in finding
on the facts that the respondent had proved that he did suffer
damages in the amount of N$96,900. Mr Jones submitted that where a
party claims an amount owing to him under the Act, that party must
not only plead how those amounts arise but also lead evidence and
prove those amounts, thus substantiating the exact extent of the
claim. He referred me to the case of Springbok Patrols (Pty) Ltd v
Jacobs & Others15
, where Smuts, J stated that:





‘…this
court has made it clear that were the parties seek to claim an amount
owing to them under the Act, they must not only plead how those
amounts arise but also lead evidence and prove those amounts, thus
substantiating the exact extent of the claim…..’





[40]
Mr Jones continued and submitted that the respondent did not plead
his losses or the quantum thereof in the complaint, did not provide
any evidence under oath of his losses or alleged damages, or both
losses and damages. He concluded his submission by stating that there
is simply no evidence in regard to the quantum of the first
respondent’s alleged losses. Mr Rukoro countered these
submissions by arguing that Mr Jones’ submission is without
merit because the respondent did testify as to what his monthly
salary was and that was not put in dispute.





[41]
I have perused the referral form, Form LC 21 and the summary annexed
to that form. It is correct that in the referral form the respondent
simply stated that the nature of the dispute is one of ‘unfair
dismissal’. In the brief summary of the dispute attached to the
referral form the respondent simply gives a summary of what the
dispute is, no mention is made that the respondent is claiming
reinstatement or compensation for loss of income. However, at the
commencement of the arbitration hearing the following exchange
occurred:





CHAIRPERSON
(Arbitrator):
And you are accused of doing what?





FOR
APPLICANT (Respondent)
Assault…





CHAIRPERSON And
what do you want now?





FOR
APPLICANT
Reinstatement in the previous position or a comparable
position to match. And payment in respect of loss of income for the
period that he was dismissed.’





[42]
I accept and fully agree with the legal principles enunciated in the
case of Springbok Patrols (Pty) Ltd v Jacobs & Others16
. I am, however, of the view that the facts in that case are
distinguishable from the facts in the present matter. In the
Springbok case the claim was not for unfair dismissal but for alleged
wrong deductions from the employees’ wages. Furthermore in the
Springbok case no evidence or even reference was made as to how much
was deducted from their wages or what their wages were. I am of the
opinion that in view of section 86 (7) of the Labour Act, 2007 which
provides that:





(7)
Subject to any rules promulgated in terms of this Act, the
arbitrator-


(a)
may conduct the arbitration in a manner that the arbitrator considers
appropriate in order to determine the dispute fairly and quickly; and


(b)
must deal with the substantial merits of the dispute with the minimum
of legal formalities.’





The
appellant was alerted and knew that the remedy which the respondent
is seeking if the arbitrator were to find that the dismissal was
procedural and substantially unfair is reinstatement and payment for
the months which the respondent was unemployed. The appellant further
did not dispute that the respondent’s salary was N$ 5100 per
month and that he (respondent) was unemployed for 19 months at the
time when the arbitrator made his award. I thus agree with Mr Rukoro
that Mr Jones’ submissions are without merit. I am thus of the
view that the arbitrator did not act unreasonably in making the award
which he made.





[43]
Mr Rukoro alerted me to the fact that the appellant does not object
to the order of reinstatement or re-employment. It is indeed so that
the appellant has not specifically objected to the order of
reinstatement or re-employment but it must be remembered that
appellant appealed ‘against the entire award’ issued by
the arbitrator. I have above indicated that this Court is entitled to
hear an appeal on a question of law alone if the matter, as in the
instant case, does not fall under s. 89(1)(b). I also held that “the
predicative adjective ‘alone’ qualifying ‘law’
means ‘without others present’. It thus follows that the
notice of appeal in so far as it purports to appeal against the
entire award is defective. The fifth ground of appeal accordingly
also fails.





[44]
Consequently, the appeal fails and is dismissed. For the avoidance of
doubt, the award of the arbitrator dated 12 December 2013 is varied
(where necessary) to read:





1
The dismissal of Zedekia Kuritjinga by DHL Express Namibia (Pty) Ltd
is both procedurally and substantively unfair.





2
The appellant is ordered to reinstate the respondent in the position
in which he would have been had he not been so dismissed, i.e.
retrospectively to the date of his dismissal which is 11 May 2011.





3
The appellant is ordered to pay to the respondent back pay for the
whole period of dismissal (being 11 May 2011 to 24 January 2014).





4
I make no order as to cost.








SFI
Ueitele





Judge









APPEARANCES





APPELLANT:
J P Jones



Instructed by GF Köpplinger
Legal Practitioners, Windhoek.





FIRST
RESPONDENT: S Rukoro





Instructed
by the Directorate of Legal Aid.





SECOND
RESPONDENT: No Appearance.





SECOND
RESPONDENT: No Appearance.






1See
page 184 lines12-18 of the record.




2           
See
page 321- 323 of the record.




3See
page 323- 324 of the record.




4Act
11 of 2007.




5           
Case
No. LCA 02/2010.




61997
NR 102 at 105D – E.




71999
NR 219 at 224.




81998
(3) SA 349 (SCA).




9House
and Home v Majiedt and Others
(LCA
46/2011) [2012] NALC 31 (22 August 2012) at para [7].




10Act
51 of 1977.




11Paragraph
10.2 of the Appellant’s Disciplinary code amongst others
provides as follows:


 


10.2    
Procedure


 


10.2.1   Step 1


 


Open the hearing by reading the
name and Company number of the alleged offender from the Complaint
Form and ascertain they are correct. If the alleged offender is not
represented (and the Service Centre is unionized), check that he
understands his right to representation and that he has in fact
waived that right. His/her replies to be recorded.


 


10.2.2   Step 2


 


Read out the complaint. Ask the
accused if he/she understands the charge. Ask the offender to plead
either guilty or not guilty to each charge.


 


10.2.3   Step 3


 


Witnesses for the complaint will
be brought in individually to give their evidence. (The presiding
officer should make notes of this evidence).


 


Note:


 


A
witness can be asked, or may prefer to make a written statement that
must be attested by him (this means that the witness who made the
statement must testify to facts in the statement). Such statements
should be regarded as strictly confidential until the Hearing date.
The alleged offender must be allowed to cross-question the witness.


10.2.4  
Step 4


 


Witness
nominated by the alleged offender should be allowed, and evidence
taken as in Step 3 above. Note that a witness may be requested to
testify but cannot be forced to do so.


 


10.2.5  
Step 5


 


The
presiding officer is to ask the alleged offender and complaint to
leave the room while he/she considers the evidence.


 


10.2.6  
Step 6


 


Having
satisfied himself clearly in his own mind, the presiding officer
will inform the accused of his finding of guilty or not guilty on
each charge.’







121998
NR 90 (LC).




13Supra
12.




14See
page 125 of the record.




15LCA
(702/2012) [2013] NALCMD 17 para [12] an unreported judgment of this
Court delivered on 31 May 2013.




16Supra
14.