Court name
Labour Court Main Division
Case number
21 of 2014
Title

Windhoek Tool Centre CC v Pitt and Others (21 of 2014) [2015] NALCMD 2 (22 January 2015);

Media neutral citation
[2015] NALCMD 2
Coram
Parker AJ










REPUBLIC OF NAMIBIA





LABOUR COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK





JUDGMENT



Case no: LCA 21/2014





DATE: 22 JANUARY 2015





REPORTABLE





In the matter between:





WINDHOEK TOOL CENTRE
CC..................................................................................APPELLANT





And





ANDREAS NATANGWE
PITT........................................................................FIRST
RESPONDENT





KELVIN
KAARIMUJE................................................................................SECOND
RESPONDENT





ELVIS
KANDOVAZU......................................................................................THIRD
RESPONDENT





EMMA
NIKANOR.......................................................................................FOURTH
RESPONDENT





Neutral citation: Windhoek Tool
Centre CC v Pitt (LCA 21/2014) [2015] NALCMD 2 (22 January 2015)





Coram: PARKER AJ





Heard: 31 October 2014





Delivered: 22 January 2015





Flynote: Labour law –
Conciliation – Notice of conciliation meeting delivered to
parties – On day of conciliation meeting appellants having
failed to appear at meeting conciliator proceeded to conduct
arbitration and made an award – Court held that a conciliator
has discretion under s 83(2)(b) of the Labour Act No. 11 of 2007 to
determine the matter in the absence of the party other than the party
who referred the dispute to the Labour Commissioner who fails to
attend the meeting – But a conciliator has no power to turn a
conciliation meeting into arbitration proceedings or dovetail an
arbitration proceeding with a conciliation meeting at which no
determination is made and make an award in terms of s 83(2)(b) of the
Labour Act – Court held further that the clause ‘determine
the matter if the other party fails to attend conciliation meeting’
in s 83(2)(b) of Act No. 11 of 2007 means determine the matter by
conciliation; nothing more, nothing less – Court found that by
failing to determine the matter by conciliation the conciliator acted
ultra vires s 83(2)(b) of Act – Consequently, the court
concluded that the conciliator is wrong and she misdirected herself
very seriously on the law and is such a kind that can lead to the
conclusion that there has been a failure of justice and which the
court cannot overlook – Consequently, the arbitration award was
set aside.





Summary: Labour law –
Conciliation – Notice of conciliation meeting delivered to
parties – On day of conciliation meeting appellants having
failed to appear at meeting conciliator proceeded to conduct
arbitration and made an award – The appellant failed to attend
the conciliation meeting – Conciliator proceeded to conduct
arbitration and make an award without determining the matter by
conciliation in the circumstances as required by s 83(2)(b) of the
Labour Act – Court found that by so acting the conciliator
acted ultra vires s 83(2)(b) of the Act – Court held that in
any case a conciliator cannot make an award that is enforceable under
the Act – Court concluded that the conciliator misdirected
herself very seriously on the law – And it is such a
misdirection that can lead to the conclusion that there has been a
failure of justice and which the court cannot overlook –
Consequently, the appeal succeeded and the arbitration award was set
aside.





ORDER





(a) The arbitration award in case no
CRWK 49-14, dated 7 April 2014 is set aside.





(b) I make no order as to costs.





JUDGMENT





PARKER AJ:





[1] This appeal is instituted by the
appellant, represented by Mr Barnard, in terms of ‘Amended
notice of Appeal in Terms of Section 89(1) of the Labour Act, 2007’.
The appeal is on questions of law, and grounds of appeal are as set
out in para 3 of the notice. The appellant appeals ‘against the
entire arbitration award’ dated 7 April 2014, made in an
arbitration held on 6 March 2014 in case no. CRWK 49-14.





[2] I note that Mr Barnard, on behalf
of the appellant, abandoned grounds 2 and 3; and so the appeal
proceeded on grounds 1 and 4 only. For ease reference, I set out,
hereunder, grounds 1 and 4:





Ground 1





The arbitrator proceeded into
arbitration immediately after the conciliation, without notice to
that effect to the appellant.





Ground 4





The arbitrator incorrectly and without
grounds in law made a costs order against the appellant.





[3] As I have said previously, the
appellant appeared at the hearing of the appeal by counsel. I am
satisfied that the application for a hearing date and the notice of
set down were served on the respondents in terms of the Labour Court
Rules (‘the rules’). Despite all this, the respondents
did not appear in person or by counsel for the hearing of the appeal,
and no explanation was placed before the court as to the reasons why
there was no appearance by the respondents. As is the practice in the
court, the court instructed the court orderly to announce three times
the names of the respondents through the corridors of the court up to
the temporary main gate. The orderly reported that there had been no
response. Based on these considerations I decided to hear the appeal.





[4] Ground 1 relates to the arbitrator
proceeding with arbitration on 6 March 2014 without notice that the
proceeding would entail arbitration proceedings, and the arbitrator
not granting a postponement to enable the appellant to attend. The
arbitrator qua conciliator had given notice to the appellant
(respondent then) and the respondents (applicants then) that the
matter was set down far ‘conciliation (meeting) hearing’
before Ms Emma Nikanor at 09h00 on 6 March 2014 in the offices of the
Labour Commissioner.





[5] It is crucial to note that as far
as the Labour Act 11 of 2007 and the rules are concerned, 6 March
2014 was for conciliation only: the notice says so in clear and
unambiguous terms. In this regard, in terms of s 83(2)(b) of the
Labour Act a conciliator has discretion to determine the matter if
the other party to the dispute fails to attend the conciliation
meeting, as in the present matter. But the conciliator has no power
under s 83(2)(b) of the Labour Act to turn a conciliation meeting
into an arbitration proceeding without more on the day a conciliation
meeting is set down by notice to take place; neither has a
conciliator the power on a day set down for a conciliation meeting to
dovetail arbitration proceedings with such conciliation meeting,
where the conciliator has not determined the matter by conciliation,
and make an arbitration award.





[6] In this regard, it should be
understood that the clause ‘determine the matter if the other
party to the dispute fails to attend a conciliation meeting’
provided for in s 83(2)(b) of the Labour Act, as is in the instant
matter, means ‘determine the matter’ by conciliation in
the absence of such party; nothing more, nothing less. In the instant
case, on the record it is not clear what the conciliator did about
the conciliation she was seized with. That is to say; there is
nothing on the record tending to establish that the appellants (ie
‘the other party’, to use the wounds of s 83(2)(b) of the
Labour Act) having failed to attend the conciliation meeting the
conciliator ‘determined’ the matter by conciliation as
provided for in s 83(2)(b) of the Labour Act. Indeed, the arbitration
award that was made is completely silent as to whether the
conciliator-cum-arbitrator determined by conciliation the matter as
was expected of her under s 83(2)(b) of the Labour Act.





[7] Following upon her refusal to
determine the matter by conciliation – as was expected of her
by the Act – the conciliator metamorphosed the conciliation
meeting into arbitration proceeding and metamorphosed herself into an
arbitrator and proceeded to conduct an arbitration and make an award
– all in one day, 6 March 2014, and all in the absence of the
appellant. I find that the conciliator acted ultra vires the Labour
Act, particularly s 83(2)(b) of the Act. That being the case, I
conclude that the conciliator-cum-arbitrator was wrong. She
misdirected herself very seriously on the law, and it is such a kind
of misdirection that can lead to the conclusion that there has been a
failure of justice and which the court cannot overlook. It follows
that the so-called arbitration award is tainted and it cannot be
allowed to stand. In any case, even if the conciliator had determined
the matter by conciliation she could not, as Mr Barnard submitted,
have made an award contemplated in Part C of Chapter 9 of the Labour
Act. See Classic Engines CC v Nghikofa 2013 (3) NR 659, paras 6 and
7.





[8] Based on these reasons and
conclusions it serves no purpose to consider ground 4. The
conclusions I have reached on ground 1 is dispositive of the appeal.
In my judgment, therefore, the appeal succeeds; whereupon I make the
following order:





(a) The arbitration award in case no
CRWK 49-14, dated 7 April 2014 is set aside.





(b) I make no order as to costs.





C Parker





Acting Judge






APPEARANCES








APPELLANT: P C I Barnard





Instructed by Mueller Legal
Practitioners, Windhoek








RESPONDENTS: No appearance