Court name
Labour Court Main Division
Case number
78 of 2013

Life Office of Namibia Ltd (NAMLIFE) v Amakali and Another (78 of 2013) [2014] NALCMD 34 (08 August 2014);

Media neutral citation
[2014] NALCMD 34
Smuts J




no: LCA 78/2013

08 AUGUST 2014


the matter between:





citation: Life Office of Namibia Ltd (Namlife) v Joel Amakali (LCA
78/2013) [2014] NALCMD 34 (8 August 2014)


25 July 2014

8 August 2014

Appeal against an arbitrator’s
award under s89 of the Labour Act, 11 of 2007. A preliminary point
was taken that the award was a nullity because it was issued more
than 30 days after the conclusion of proceedings and outside the time
limit period within which awards are to be issued, as prescribed by
s86(18) of Act 11 of 2007. Reliance was placed upon
v Torbitt
(LC 114/2013) [2014] NALCMD 6
(20 February) which had made a ruling to that effect. The court found
that the approach in
IUM v Torbitt
was clearly wrong and declined to follow it. The court found that the
remedy to be invoked if an award is late is to bring a
against the arbitrator. On the merits of the appeal, the court found
that the arbitrator’s finding of a dismissal for sexual
harassment being substantively and procedurally unfair was one which
no reasonable arbitrator could have reached. The court upheld the
appeal and set aside the award.


appeal against the arbitrator’s award succeeds and the first
respondent’s dismissal is confirmed. The award in favour of the
first respondent is set aside. No order is made as to costs.



is an appeal under s 89 of the Labour Act[1]
against the award of an arbitrator (cited as the second respondent)
reinstating the first respondent in his employment with the

The first respondent was charged on
two counts of sexual harassment of two female employees and one count
of using foul and abusive language towards another female colleague. 
He was found guilty in an internal disciplinary enquiry.  In the
finding on sanction, it was pointed out to the first respondent that,
in terms of clause 17 of the appellant’s disciplinary code,
management may impose a stricter or more lenient measure than that
proposed by the chairperson of the disciplinary enquiry whose
sanction was that the first respondent be suspended without pay for
30 days and two final written warnings valid for 12 months.  The
first respondent was also informed that he had the opportunity to
appeal against the sanction or findings of the disciplinary enquiry.

The Chief Executive Office (“CEO”)
of the appellant thereafter gave the first respondent notice under
clause 17 of the disciplinary code that he intended to impose a more
severe sanction in the form of dismissal by virtue of the fact that
the recommended sanction for sexual harassment under the appellant’s
Disciplinary Code is dismissal. 

The CEO accordingly gave the first
respondent notice of his intention to impose such a sanction and
afforded him the opportunity to make written representations on the
issue.  The first respondent made use of that opportunity and
addressed the CEO on sanction and profusely apologized for what had
occurred.  The first respondent in fact stated that the “finding
of the chairman was reasonable” and stated “I am very,
very sorry for what happened that day”.  He further stated
that it was not his intention to offend anyone and apologized to
those affected for his conduct.  He further stated that “things
like this will never happen again in future” and requested

The first respondent did not appeal
against the findings of guilt.

Despite his plea and his apologies,
the appellant’s CEO decided, in view of the seriousness of the
charges, to dismiss him.

The charges stemmed from an
end-of-year office function held at Midgard and concerned offences
which happened there and on the way back to Windhoek on a bus.

The first respondent referred a
dispute concerning his dismissal to the Office of the Labour
Commissioner.  The matter proceeded to arbitration.  In the
award, the arbitrator found in favour of the first respondent. 
He found that his dismissal was both procedurally and substantively
unfair and for no valid reason.  The arbitrator reinstated the
first respondent to his position with effect from 1 November 2013 and
directed that the appellant pay the amount of N$102 000 representing
a large portion of his salary from the date of dismissal to

The appellant appeals against that

preliminary point

Before referring to the arbitration
proceedings, and the grounds of appeal, a preliminary point, taken by
Mr JPR Jones on behalf of the appellant that the arbitrator’s
award was delivered out of time and is as a consequence a nullity, is
first dealt with.

It is common cause that the
arbitration was heard and concluded on 22 April 2013.  The
award, however, was only forthcoming and delivered on 15 October
2013.  Mr Jones pointed out that the award was, under s 86(18)
of the Act, to be delivered within 30 days of the conclusion of the
proceedings.  He submitted that the award should have been
delivered by 22 May 2013 and was as a consequence some five months
late.  The arbitrator had stated that the lateness of the award
was occasioned by a computer virus.

Mr Jones submitted that s 86(18) is
peremptory.  It provides: 

30 days of the conclusion of the arbitration proceedings, the
arbitrator must issue an award giving concise reasons and signed by
the arbitrator.

Jones further referred to a decision of this court in
University of Management v Torbitt
where Parker AJ held that the provisions of s 86(18) are peremptory
and that non-compliance with those provisions results an award given
outside of that time period being a nullity.  He reasoned as

it is not insignificant, neither is it aleatory that ‘must’
and not ‘shall’ is used in s 86(18) of the Labour Act. It
is to take it out of the hands of the over activist judge who may be
minded to put forth the theory that depending upon the context,
‘shall’ may mean ‘may’, thus creating a
directory or permissive status for ‘shall’ in addition to
its natural, peremptory and mandatory status. Thus, given its
ordinary grammatical meaning by context (see
and Others v Government of the Republic of Namibia

2009 (2) NR 752 (HC)), s 86(18) means that the statutory command in s
86(18) is couched in peremptory terms. That being the case, it is a
strong indication, in the absence of considerations pointing to
another conclusion (as that canvassed by Mr Ncube and Mr Vlieghe,
which I have rejected) that the Legislature intended disobedience of
the time limit prescribed by s 86(18) of the Labour Act to be visited
with a nullity.’

The point was thus taken that the
award, having been given outside the 30 day time period required by s
86(18), was accordingly a nullity on the basis of the decision by
Parker AJ in
IUM v Torbitt.

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 day 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
conseqence 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

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
. 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.

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).

the evil   to be addressed in s86(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
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
Exec CC v Van Wyk and another
Manganese (Pty) Ltd v Katjivena

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
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
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). 

It would follow that the approach in
IUM v Torbitt
is in my view clearly wrong and I decline to follow it.  It
would further follow that the preliminary point raised by the
appellant is dismissed.

I turn to the arbitration
proceedings, the award by the arbitrator and the submissions raised
on appeal before analysing them.

arbitration proceedings

In the arbitration proceedings the
three complainants in respect of the three counts upon which the
first respondent had been found guilty in the internal disciplinary
inquiry gave evidence, as well as another witness who, to an extent,
corroborated one of the complainants.

The first respondent gave evidence
and called 3 witnesses to support his version.

The complainant in the first
incident which had occurred that day, was a certain Ms Cogill. 
She testified that at the proceedings at Midgard, the first
respondent had stared at her incessantly in a manner which made her
feel uncomfortable.  After staring at her in this manner, she
testified that he approached her and told her that she was beautiful
and proceeded to put his arm around her shoulder.  Her evidence
was further that the first respondent backed away when her boyfriend
intervened.  She testified that she did not know the first
respondent.  They worked in different departments of the
appellant.  She testified that the incident made her feel
extremely uncomfortable and that her personal space had been violated
and invaded by his conduct.

The first respondent admitted that
he looked at Ms Cogill and that he had approached her.  He also
admitted that he told her that she was beautiful. But he denied
putting his arm around her.  One of his witnesses, Mr Simeon
Amuyeluka, testified that he had been with the first respondent most
of time and had never seen him assaulting or harassing any woman. 
He further testified that he had not heard the first respondent
telling any person that she was beautiful.  He admitted,
however, that there were times when he had not been together with the
first respondent.  The other two witnesses called by the first
respondent stated that they had not seen him touch Ms Cogill or speak
to her. 

The further incidents which formed
the subject matter of the charges against the first respondent
occurred on the bus back to Windhoek and shortly after its arrival in

The other complainant in respect of
a sexual harassment charge was Ms Rochelle Maasdorp.  Her
evidence was that she was seated on the bus next to Ms Bellavista
Goagoses.  It was not contested that the bus had returned after
dark and that it was fairly dark inside the bus.  Ms Maasdorp
testified that she had drifted off to sleep and was awoken by the
first respondent kissing her on her face.  She testified that
she immediately exclaimed and protested against this and pushed the
first respondent away from her. 

Ms Goagoses stated in her evidence
that she was at the time busy sending a text message on her cellphone
when this occurred and was disturbed by Ms Maasdorp exclaiming and
protesting that the first respondent had kissed her.  Ms
Goagoses stated that she did not see the first respondent doing so,
but saw him in close proximity when Ms Maasdorp had protested. She
had merely heard Ms Maasdorp exclaim that this had occurred. 

The first respondent denied kissing
Ms Maasdorp.  He did not however dispute that he was in her
immediate proximity.  He stated that he was bent over looking
for his sunglasses. 

His three witnesses were on their
versions near the front of the bus some distance away. They stated
that they did not see him kiss anyone on the bus. 

After arrival in Windhoek, Ms
Maasdorp stated that when she alighted from the bus, the first
respondent grabbed her around the waist and that she pushed him
away.  The first respondent denied doing so.  There were no
other witnesses to this event. 

The third charge upon which the
first respondent had been convicted in the internal disciplinary
procedures was the use of foul and abusive language towards Ms Emilie
Nghidinihamba, who worked in the appellant’s human resource
department.  She testified that she was sitting near the front
of the bus and that the first respondent was standing very close by
at the front of the bus.  She testified that he had a glass in
his hand and was off balance.  Ms Nghidinihamba further stated
that she anticipated a bumpy ride back to Windhoek in the bus. She
was concerned for the first respondent’s safety and suggested
that he should sit down, offering him her seat.  This, she
stated, was met with a stream of abuse directed at her by the first
respondent.  He made use of obscenities in doing so in both
Afrikaans and in Oshiwambo.  She testified that she was gravely
insulted and aggrieved by the first respondent’s extremely foul
and abusive language used towards her.

The first respondent denied making
use of foul and abusive language to Ms Nghidinihamba.  His three
witnesses also denied that he had in their presence done so. 

The record of the disciplinary
proceedings and the correspondence between the parties following it,
which had resulted in the first respondent’s dismissal, also
formed part of the arbitration proceedings.  During
cross-examination, the first respondent was questioned at some length
about the email he had sent to the CEO in which he had profusely
apologized for what had occurred.  He confirmed that he had said
that the findings were reasonable, but stated that he addressed that
email to the CEO because he did not want to lose his job. 

arbitrator’s award

In dealing with the evidence of Ms
Maasdorp, the arbitrator referred to the fact that she was asleep at
the time and that Ms Goagoses had not seen the first respondent
kissing her.  He also referred to the fact that nobody else had
seen the first respondent kissing Ms Maasdorp.  He further
referred to the three witnesses called by the first respondent who
testified that they had not seen Ms Maasdorp being kissed by him. 
The arbitrator concluded: 

would then remain the word of the applicant (first respondent)
against that of the witness despite the fact that there were so many
other people in the same bus but did not see anything like that ever

did not deny the fact that he was standing next to Ms Goagoses but he
gave an explanation for his presence there and this was supported by
the witnesses he had called. 

said he was searching for his glasses.

on the evidence given by all these witnesses, I fail to understand
why the applicant was found guilty on this charge.’

In respect of the other charge
involving Ms Maasdorp, he stated that

again nobody saw this except herself despite the fact that there were
many other people around.’ 

In respect of the charge of foul and
abusive language, the arbitrator stated: 

E Nghidinihamba was verbally insulted by the applicant on the bus
full of other people and again surprisingly, it’s only her who
heard this because there were no other witnesses to support her

referred to the first respondent’s three witnesses who did not
hear the insults. 

As far as the other incident is
concerned, he concluded as follows on the facts:

C Cogill alleges that she was also hugged by the applicant at the

though were many other people in the surrounding, none testified that
they saw applicant doing this to her.

three witnesses called by the applicant did not see him hugging and
they maintain that he was in their company at all times.’

He concluded that a valid reason
(for dismissal) had not been established. 

procedural fairness, he referred to the sanction determined by the
chairperson of the disciplinary enquiry and to the provisions of
clause 17 of the Disciplinary Code which permitted stricter or more
lenient measures depending on the circumstances.  He found that
the imposition of a more serious sanction by the CEO was in conflict
with a decision of this court in
Technical Supplies (Pty) Ltd v Kazondunge and another
which had upheld an award in which, the arbitrator said, the court
had held that if an MD was considering to depart from a sanction
imposed by a disciplinary chair, an employee should first be given
another hearing.  The arbitrator accordingly ruled that the
dismissal was also procedurally unfair.  He re-instated the
first respondent and directed he receive payment for remuneration as
set out above.


Mr Phatela, who represented the
first respondent in the appeal, submitted that the attack upon the
merits of the arbitrator’s award related to and concerned his
findings of fact on the three charges in question. He also criticised
the formulation of the grounds of appeal.  He submitted that the
appeal was in essence directed against these findings of fact of the
arbitrator and that this was not permitted by virtue of s 89(1) which
restricts appeals to this court to questions of law alone.

Jones countered that the arbitrator’s findings of fact were so
vitiated by a lack of reason that they were tantamount to no findings
at all and that this would constitute a question of law on the basis
of the decisions of the full court in
v Namibia Development Corporation
and others v Van Wyk.

judgments of the full court were followed in this court where it was

In earlier written argument filed on behalf of the respondent (and
not raised before me), the question was raised as to whether the
appeal was one which relates to a question of law. In my view, it
clearly constitutes a question of law if an appellant can show that
the arbitrator’s conclusion could not reasonably have been
reached. In doing so I respectfully follow the approach of the full
bench of this court in Rumingo and Others v Van Wyk. The full
bench in that matter made it clear that a conclusion reached (by a
lower court) upon evidence which the court of appeal cannot agree
with would amount to a question of law. This approach is also
consistent with that of a subsequent full bench decision in Visagie
v Namibia Development Corporation
where the court, in my
respectful view, correctly adopted the approach of Scott JA in Betha
and Others v BTR Sarmcor
that a question in law would amount to
one where a finding of fact made by a lower court is one which no
court could reasonably have made. Scott JA referred to the rationale
underpinning this approach being that the finding in question was so
vitiated by a lack of reason as to be tantamount as be no founding at
all. That in my view aptly describes the finding of the arbitrator in
this matter.

was further stated by Scott JA, it would amount to a question of law
where there was 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 that finding…’

In the arbitrator’s award, it
is evident from the quoted portions above that the arbitrator was
swayed by the fact that the first respondent’s three witnesses
had not seen the first respondent hugging Ms Cogill, finding that he
was in their company at all times. He also attached much height to
the fact that these witnesses had also not seen him kissing Ms
Maasdorp or heard him insulting Ms Nghidinihamba.

The evidence of those witnesses
clearly weighed very heavily with the arbitrator.  His reliance
upon their evidence is, however, fundamentally flawed.  Firstly,
they did not state that they were in the first respondent’s
at all times
as he found.  Their evidence was in fact to the contrary in
conceding that there were times when he moved on his own.  These
witnesses further denied that the first respondent had approached Ms
Cogill, even though he in fact admitted that he had done so and had
told her that she was beautiful.

It was thus entirely untenable and
grossly unreasonable for the arbitrator to dismiss Ms Cogill’s
version on the basis of the three witnesses called by the first
respondent.  What compounds this flawed approach, is the fact
that the first respondent admitted looking at Ms Cogill and
approaching her and telling her that she is beautiful.  He thus
in significant and material respects corroborated her version. 
The only deviation is in respect of her testimony that he put his arm
around her which he denied.  But tellingly, the basis upon which
her version is rejected by the arbitrator, is so fundamentally flawed
that no reasonable arbitrator could have reached such a conclusion on
the facts. This apart from the first respondent’s subsequent
apology and contrition which was not even considered by the

As for the incident on the bus
involving Ms Maasdorp, the arbitrator again relies upon the evidence
of the first respondent and his witnesses in dismissing her version. 
This despite the fact that the uncontested evidence was that the bus
was in darkness and the fact that the three witnesses were at the
front of the bus and would, if seated, have been facing in the other
direction. The incident would also have occurred some distance from

On the other hand, Ms Maasdorp’s
evidence stood up to cross-examination. It was corroborated by Ms
Goagoses in a significant and material respect concerning the
spontaneity of her exclamation and protestation.  Coupled with
this, the first respondent admitted being in her close proximity and
had bent over her – although to look for his sunglasses on his

The further incident involving Ms
Maasdorp, was without any corroboration and was her word against his.

In respect of the charge of foul and
abusive language, it was also essentially Ms Nghidinihamba’s
word against his although the arbitrator relied heavily upon the
three witnesses of the first respondent in dismissing her version of

process whereby courts resolve two irreconcilable versions was very
eloquently summarised by Nienaber JA in
Group Ltd and Another v Martell et cie and Others
in the following way:

the central issue, as to what the parties actually decided, there are
two irreconcilable versions. So, too, on a number of peripheral areas
of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As to (a), the court's
finding on the credibility of a particular witness will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness' candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events. As to (b), a
witness' reliability will depend, apart from the factors mentioned
under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe the event in question and (ii) the quality,
integrity and independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party's version on each of the disputed issues.
In the light of its assessment of (a), (b) and (c) the court will
then, as a final step, determine whether the party burdened with the
onus of proof has succeeded in discharging it. The hard case, which
will doubtless be the rare one, occurs when a court's credibility
findings compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former, the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.’

Arbitration tribunals are
established as tribunals for the purpose of art 12 of the
Constitution. Their decision making must be able to stand up to
scrutiny and, given the status as tribunals for the purpose of art
12, are to follow the accepted techniques of courts in resolving
factual disputes. This is re-inforced by the fact that appeals
against their awards to this court are limited to questions of law
alone. But if their findings of fact are entirely unsupported by the
evidence or made without a proper evaluation of that evidence to the
extent that no reasonable court or tribunal could have reached those
conclusions, then it would amount to a question of law.

The arbitrator’s reasons, set
out fully above, show little or no appreciation at all as to how
irreconcilable versions of fact are to be resolved. There are no
coherent findings on credibility, reliability and probabilities or an
appreciation for the determination and consideration of those issues.

The arbitrator did not take into
account any possible partiality on the part of the three witnesses
called by the first respondent.  One of those witnesses said
that he was very close to the first respondent whilst the other two
stated that they were in his company that day and were thus
presumably his friends.  Significantly, all three were his
subordinates in the employment relationship.  The arbitrator
should clearly have considered potential bias – even latent –
on their part in their testimony, particularly when their versions
denied that the first respondent had even approached and spoke to Ms
Cogill even though he had admitted this – such was their
eagerness to provide exculpatory evidence for him. This significant
contradiction is not even referred to and would appear to have been
completely overlooked by the arbitrator.

On the other hand, the arbitrator
failed to consider why the four female witnesses in the case,
including the three complainants who worked in different departments
of the appellant, would have falsely accused him of sexual harassment
and of using foul and abusive language.  No credible or
acceptable explanation why this should have occurred is suggested in
the evidence or even considered by the arbitrator. There was no
analysis of the probabilities at all. The arbitrator furthermore did
not consider the opportunities to observe by the respective witnesses
in weighing their versions.

Furthermore, and most significantly,
the arbitrator did not even consider the fact that the first
respondent had not appealed against the findings of guilty and
confirmed that the Chairperson’s findings were reasonable. But
more importantly had in fact, in making submissions on sanctions
subsequently, repeatedly extended apologies and expressed contrition
for what had occurred.  This aspect is not even referred to in
his reasoning and evaluation of evidence in the award, despite its
obvious relevance and even though it had been raised with the first
respondent at some length during cross-examination. 

In short, the conclusions reached by
the arbitrator were so unsupported by any proper analysis and
evaluation of the evidence – and indeed devoid of that process
– that they were tantamount to arriving at no conclusions or
findings at all and are certainly amounted to findings that no
reasonable court or tribunal could have reached.

As for the arbitrator’s
finding that the sanction was procedurally unfair, it was correctly
pointed out by Mr Jones that the case invoked by the arbitrator in
support of his approach, did not however support the conclusion he
arrived at.  In that matter it was found that an employer had
acted procedurally unfairly in more than one respect, including
imposing a sanction more severe than that contained in its
disciplinary code without hearing the employee. That is entirely
distinguishable from the facts of this matter. In that matter the
following was stated with reference to procedural fairness:

procedural unfairness of the respondent’s dismissal rather
arises from the application of the appellant’s code and the way
in which the sanction was ultimately imposed upon the respondent. The
appellant’s disciplinary code provides for specific sanctions
in respect of infractions. The sanction specified in the code for a
first offender for removing company property without permission is
that of a final written warning. As I have already pointed out, only
in respect of a second offence would a dismissal be the given

Vlieghe however submitted that these are mere guidelines and not
binding upon an employer. But even if there were merely non binding
guidelines, (which it does not appear to me from the document in
question), it would seem to me at the very least that the chairperson
of the enquiry should have motivated why a sanction in excess of that
contained in the code should be one of his recommendations. In the
absence of the motivation in that regard, it would seem to me that
his recommendation in respect of sanction was not in accordance with
the code. But furthermore, it would also seem to me that if an
employer would want to impose a sanction more severe than that
contained in its own disciplinary code, then an employee should be
entitled to be heard in respect of that issue and be entitled to
address an employer as to whether the more severe sanction than that
contained in the code should be applied to her. That did not occur.
The failure to do is in my view procedurally unfair.’

Clause 17 of the appellant’s
disciplinary code on the contrary expressly authorised management to
impose stricter or more leniency sanctions than those recommended by
a chairperson of an enquiry.  The appellant’s disciplinary
code understandably viewed sexual harassment in a very serious light.
It was an offence for which the recommended sanction would be a
dismissal. After pointing this out, the CEO then proceeded to afford
the first respondent the opportunity to address him upon the issue of
increasing the sanction, unlike the position in
Technical Supplies
.  The first
respondent made use of that opportunity and sought clemency.  A
sanction of dismissal was, however, imposed. 

There is in my view nothing
procedurally unfair about this sequence of events.  The
disciplinary code itself made provision for management to impose a
more severe or lenient sanction.  The appellant was alerted to
this at the conclusion of the hearing.  He was subsequently
afforded the opportunity to address that very issue when the CEO
considered a more serious sanction.  The first respondent made
use of that opportunity.  This did not amount to procedural
unfairness. The reliance upon the case cited in the award was not
apposite and was incorrect.  The finding of the arbitrator of
procedural unfairness is likewise flawed.

Sexual harassment is after all a
serious matter.  The legislature has provided for sexual
harassment in the workplace in Chapter 2 of the Act, where special
remedies are also provided for discrimination in an employment
setting.  This is a clear indication of the seriousness with
which sexual harassment at the workplace is viewed by the legislature
and rightly so.  Being subjected to unwanted and unwarranted
conduct of a sexual nature not only creates a barrier to equality in
employment as is stressed in s2 of the Act, but it also violates an
employee’s constitutional right to dignity and of the person.

seriousness of sexual harassment in employment is reinforced by the
fact that the failure on the part of an employer to prevent it may
even attract delictual liability.[11]

It would follow in my view that the
arbitrator’s findings in respect of substantive fairness in his
award are entirely unsupported by the evidence before him and are
emphatically excluded by a proper evaluation of that evidence and the
probabilities to such an extent that the findings are in my view of
such a nature that no reasonable arbitrator could have made them.
They are so vitiated by a lack of reason that they are tantamount to
no findings at all.

The arbitrator’s finding with
reference to procedural unfairness is a question of law which, as I
have demonstrated, was also entirely flawed and also cannot stand. 
Apart from these blemishes, I was also concerned by the lack of
control which the arbitrator exercised over the proceedings. There
were incessant interruptions of witnesses and of each other by the
parties’ respective representatives. Needless to say, the
overwhelming majority of these interruptions were entirely
unwarranted and would have been eliminated by properly controlling
the proceedings.

The following order is made:

appeal against the arbitrator’s award succeeds and the first
respondent’s dismissal is confirmed. The award in favour of the
first respondent is set aside.  No order is made as to costs.




Adv JPR Jones

by Köpplinger Boltman


by Shikale & Ass.

Act 11 of 2007

(LC 114/2013) [2014] NALCMD 6 (20 February 2014).

at par 16.

(LC 150/2013) [2014] NALCMD 16 (16 April 2014).

(LC 86/2012) [2014] NALCMD 10 (26 February 2014) these cases
expressly differed with the sentiments expressed in
Wilderness Lodge v Uises and 27 others

16/2011 unreported 20 October 2011 at par 10-12,
Patrols (Pty) Ltd t/a Namibian Protection Services v Jacobs and

LCA 70/2012 unreported 31 May 2013 at par 7 and
of Namibia v Simana and another

(LC 32/2013) [2014] NALCMD 5 (17 February 2014) at par 19 and 23.

LCA 69/2011, unreported 22 March 2012.

1999 NR 219 (HC).

1997 NR 102 (HC) at 105 D-F.

Power Corporation (Pty) Ltd v Nantinda

LC 38/2008.  Unreported.  22 March 2012 par [28].

2003 (1) SA 11 (SCA) at par 5.

24 Ltd v Grobler

[2005] 7 BLLR 649 (SCA) at par 65-76.