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

Methealth Namibia Administrators (Pty) Ltd v Matuzee and Others (22 of 2014) [2015] NALCMD 5 (18 March 2015);

Media neutral citation
[2015] NALCMD 5
Coram
Ueitele J










IN
THE LABOUR COURT OF NAMIBIA


CASE
NO: LCA 22/2014






DATE:
18 MARCH 2015


In
the matter between:


METHEALTH
NAMIBIA ADMINISTRATORS (PTY)
LTD.......................................APPELLANT






And






BARTO
MATUZEE................................................................................................1ST
RESPONDENT






ZENOBIA
FORBES..............................................................................................2ND
RESPONDENT






GERSHON
DAUSAB............................................................................................3RD
RESPONDENT






Neutral
citation: Methealth Namibia Administrators (Pty) Ltd v Matuzee
(LCA2/2014) [2015] NALCMD 5 (18 March 2015)






CORAM:
UEITELE, J






Heard
on: 06 MARCH 2015






Order
handed down 18 MARCH 2015






Reasons
released on:10 APRIL 2015






Flynote:
Labour law - Section 89(1) (a) of the Act restricts an appellant’s
right to appeal to this court against an arbitrator’s award
made in terms of section 86, to questions of law only.






Summary:
On 18 November 2013, the respondents (who are all employees of the
Appellant) purported to jointly refer a dispute of unfair labour
practice (the allegations being amongst others that Methealth Namibia
Administrators (Pty) Ltd (the employer and who is the appellant in
this matter) unlawfully made deductions from the respondents’
remuneration.  On 18 December 2013 unsuccessfully conciliation
conciliated the dispute. After the unsuccessful conciliation the
arbitrator proceeded to arbitrate the dispute.


The
arbitration hearing proceeded as scheduled on 13 March 2014, after
the hearing the arbitrator found that the deductions from the
respondents’ salaries were in contravention of s12 of the
Labour Act, 2007 and thus unlawful. He also found that the refusal by
the appellant to pay to Gershon Dausab subsistence and travelling
allowance when he travelled from outside his duty station to attend
to his duties as shop steward was unfair. The arbitrator ordered the
appellant to pay to the respondents the amounts which it deducted
from their remuneration and to pay to Mr Gershon Dausab the amount of
N$ 3 000 in respect of accommodation and N$ 2400 in respect of
subsistence allowance. It is against that order that the appellant
appeals.


Held
that s89(1) (a) of the Act restricts an appellant’s right to
appeal to this court against an arbitrator’s award made in
terms of section 86, to questions of law only and that in so far as
the Notice of Appeal purports to appeal against the whole of the
arbitration award it is defective, because the award also deals with
finding of facts.


Held
further that the arbitrator did not err in law when allowed the
respondents to participate in the arbitration proceedings despite the
provisions of Rule 5 (3) of the Arbitration Rules.


Held
furthermore that the question as to whether or not the arbitrator was
correct to deny the appellant the opportunity to be legally
represented at the arbitration proceedings involved a factual enquiry
and thus not appealable.


Held
furthermore that the arbitrator did not err in law when he found that
in the present matter the appellant did not have the sanction of the
law, a court order or an agreement with the employees when it
deducted moneys from their remuneration and as such the arbitrator
was correct in in his interpretation and application of Section
11(1), 12 and 76(1) of the Labour Act, 2007.


ORDER






1
That the appeal is dismissed.






2
There is no order as to costs.






JUDGMENT






UEITELE,
J






Introduction
and Background





[1]
In this matter the appellant is Methealth Namibia Administrators Pty
(Ltd) (I will in this judgment refer to it as the appellant). The
three respondents are employees of the appellant and I will
collectively refer to them as the respondents except where the
context require otherwise, in that event, I will refer to a
respondent by his or her surname.  The appellant appeals against
the entire award issued under s 89 of the Labour Act[1],
by the Arbitrator under arbitration case CRWK 861-13 handed down on
23 April 2014. The appeal is opposed by the respondents.





[2]
On 18 November 2013, the respondents purported to jointly refer a
dispute of unfair labour practice to the Labour Commissioner. 
The summary of dispute annexed to Form LC 21 amongst others sets out
the basis of the referral as follows (I quote verbatim):





3.
At all relevant times hereto applicants were duly elected workplace
union representatives of NAFINU at the respondent’s workplace,
elected in terms of section 67 of the Labour Act, 11 of 2007.


 


4
The applicants were duly recognized members of the negotiating
committee which consisted of NAFINU and Methealth representatives.





5
The negotiation committee reached a deadlock and NAFINU
referred a dispute   of interest to the Office of the
Labour Commissioner.  This dispute was not resolved and a
certificate of unresolved dispute was issued.





6.
Upon being issued with the certificate of unresolved dispute a ballot
process was   done on the 20 September 2013 for the
employees in the bargaining unit and the majority voted in favour of
a strike.





7.
After the ballot the parties agreed on the ground rules which
required that members of the negotiation committee stay sided for any
possible meeting.





8.
It is prudent to state that the applicants in this matter are not
part of the bargaining unit as defined in the recognition and
procedural agreement and as such did not participate in the ballot
process.





9.
Furthermore is it prudent to state that the applicants were not on
strike during the   strike period but only stay sided for
any possible meetings as agreed.  However on the particular day
of commencement of the strike were all of them refused access to the
employers premises without any due process of lock out been followed.


10.
As a result of the strike the respondent have embarked upon vicious
campaign harassment and intimidation by amongst other:





10.1
Deducting money from the remuneration of the applicants:





10.2
Refused to pay 2nd applicant who is employed at Walvisbay
his travelling cost and accommodation cost which he normally claim
and been paid when coming to Windhoek for his workplace union
representative responsibilities.





11.
The deductions from the applicants’ remuneration is unlawful as
it did not comply with section 12 of the Labour Act, it is arbitrary
and without any legal basis.


12.
Attempts to resolve the dispute:


12.1
The applicant has engaged the respondent in various ways in an
attempt to persuade the respondent not to violate the rights of
applicants as employees, but to no avail.






12.2As
a result applicants have exhausted all remedies at their disposal.





13.
When making the deductions the concerned applicants were not
consulted nor did they consent to the deductions being made from
their remunerations. I also need to pause here and inform the Labour
Commissioner that the deductions made exceeds the one third of the
applicant’s’ remuneration, which is prohibited by Labour
Act.’





[3]
On 25 November 2013 the Labour Commissioner gave notice,
in
terms of s 86(4) of the Act read with Regulation 20(2) of the Labour
General Regulations[2] (I will
in this judgment refer to these Regulations simply as the
Regulations), that the complaint referred to him by the respondents
was set down
for
conciliation/arbitration hearing on 18 December 2013 before B M
Shinguadja. On the 18
th
of December 2013 the arbitrator embarked on a conciliation process.
Conciliation failed and the arbitrator postponed the dispute for
arbitration before him to 26 February 2014. On 14 February 2014 the
arbitrator gave the parties notice that the arbitration hearing
scheduled for 26 February 2014 will not proceed as scheduled and he
postponed the proceedings to 13 March 2014.


[4]
On 28 February 2014 the appellant, in terms of ss 82(13) & 86(13)
read with Regulation 21, applied to arbitrator for permission to be
represented by a legal practitioner at the arbitration hearing. The
arbitrator refused the appellant’s application, he gave his
reasons for refusing permission to the appellant to be legally
represented as follows:


No
good reasons advanced for legal representation. The other party/ies
are not legally represented and they are likely to suffer prejudice
if legal representation is granted for the respondent…’





[5]
The arbitration hearing which was initially scheduled for 26 February
2014 proceeded on 13 March 2014. At the arbitration hearing the
respondents testified in their own case and the appellant did not
lead any evidence. After the hearing the arbitrator found that the
deductions from the respondents’ salaries were in contravention
of s 12 of the Labour Act, 2007 and thus unlawful. He also found that
the refusal by the appellant to pay to Mr Dausab subsistence and
travelling allowance when he travelled from away from his duty
station to attend to his duties as shop steward was unfair he
accordingly ordered the appellant to pay to:


(a)
Bartho Matuzee the amount N$ 13 705-29;


(b)
Zenobia Forbes the amount N$ 17 035-65;


(c)
Gershon Dausab the amount N$ 15 903-91 plus
the amount of N$ 3 000 in respect of accommodation and N$ 2400 in
respect of subsistence allowance.





The
Appellant’s Notice of Appeal





[6]
The appellant now appeals against the award made by the arbitrator.
As I have indicated above, the notice of appeal states that, the
appellant intends to appeal against the whole of the award of the
arbitrator made on 14 April 2014.
On 14 May 2014 the appellant
served its Notice of Appeal on the respondents, the Labour
Commissioner and the Registrar of this Court. On 21 May 2014 the
Labour Commissioner, in terms of s 89 of the Act read with Rule 23
(4) of the Rules Relating to the Conduct of Conciliation and
Arbitration before the Labour Commissioner (I will in this judgment
refer to these Rules simply as the Arbitration Rules), dispatched a
duly certified record to the Registrar. On 12 December 2014 the
appellant applied to this court for leave to amend its Notice of
Appeal. The application is not opposed and I therefor grant the
appellant leave to amend its Notice of Appeal.


[7]
Section 89(1) (a) of the Act restricts an appellant’s right to
appeal to this court against an arbitrator’s award made in
terms of section 86, to questions of
law
only.
Section 89(1)(a) of the Act, 2007
in material part provides as follows:


89
(1) A party to a dispute may appeal to the Labour Court against an
Arbitrator’s award in terms of Section 86-





(a)
on any question of law alone; or





(b)
in the case of award in a dispute initially referred to the Labour
Commissioner in terms of Section 7 (1) (a) on question of fact, law
or mixed fact and law’.





[8]
The provisions of s 89 of the Act were considered by this Court in
the unreported judgment of
Shoprite
Namibia (Pty) Ltd Appellant v

Faustino Moises Paulo:  Case
No: LCA 02/2010
where Parker, J
said:





The
predicative adjective ‘alone’ qualifying ‘law’
means ‘without others present’. (
Concise
Oxford Dictionary
, 10th edn)
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).’


 


[9]
It thus follows that in so far as the Notice of Appeal purports to
appeal against the whole of the arbitration award it is
defective, because the award also deals with findings of facts. I am,
however, of the view that the defect is ameliorated by the fact that
the appellant tabulates the different grounds on which the appeal is
based. The question which I thus need to answer is
whether each ground of appeal is within the ambit of s 89?





[10]
Before I evaluate the different grounds of appeal, I find it
appropriate to briefly set out how, this Court has dealt with the
vexed question as to how one determines whether an appeal is on a
question of law or fact. In considering whether an appeal is on a
question of law or fact O’Linn, J (As he then was) said in the
matter of
President
of the Republic of Namibia and Others v Vlasiu
:[3]





It
would appear that we are required to determine whether, on the facts
found by the Labour Appeal Court, it made the correct decision and
order. That is a question of law. If it did then the appeal must
fail. If it did not, then this Court may amend or set aside that
decision or order or make any other decision or order according to
the requirements of the law and fairness. It will be convenient
therefore to determine the facts which were common cause or not in
issue before the Court a quo and then to determine what
relevant findings of fact were made by that Court. It is upon the
basis of all those facts that the correctness or otherwise of the
decision and order of the Court a quo must then be
considered.' It is clear from this judgment that:





1.
It was a question of law to determine whether, on the facts found by
the Labour Appeal Court, it made the correct decision and order.





2.
For the purpose of determining such a question of law, the facts as
found by the Court from which an appeal is desired, are the facts on
which the question of law must be argued.’





[11]
The full bench of the High Court per Mtambanengwe, J (with Strydom,
JP and Teek, J concurring) in
Rumingo
and Others van Wyk[4]

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’.





[12]
The full bench of the High Court per Hannah, J (with Gibson, J and
Silungwe, J concurring) in
Visagie
v Namibia Development Corporation[5]

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[6]

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.’





[13]
This Court is, on the strength of these authorities, required to
determine as a question of law whether on the material placed before
the arbitrator during the arbitration proceedings, there was no
evidence which could reasonably have supported his findings or
whether on a proper evaluation of the evidence placed before the
arbitrator, that evidence leads inexorably to the conclusion that no
reasonable arbitrator could have made such findings. Hoff, J[7]
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’.





Consideration
of the different Grounds of Appeal


First
ground of Appeal


[14]
The appellant in its Notice of Appeal formulated the first question
of law which I have to decide on appeal as follows: Whether the
arbitrator erred in law in not adhering to Rule 5 (3) of the Con/Arb
rules allowing respondent to proceed with arbitration
?’ and
the ground of appeal is formulated as follows:





The
arbitrator erred in law in allowing the arbitration to continue in
the absence of proof that there was compliance with Rule 5. The Rule
states that it is peremptory that if more than one applicant is part
of the dispute, such employees must sign a statement, which was not
done and one respondent signed the LC 21 resulting in that
non-compliance with Rule 5(3) renders the whole proceedings invalid
as there was no mandate from the other respondents to sign the
referral form on their behalf.’





[15]
I have no difficulty in accepting that the first question that I am
asked to determine is a question of law. Ms.
Heydenreich
who appeared for the appellant argued that the decisions in the
matters of
Agribank
of Namibia v Simana & Another
,[8]
Purity
Manganese (Pty) Ltd v Katjivena and Others[9]

and
Springbok
Patrols (Pty) Ltd t/a Namibia Protection Services v Jacobs and
Others[10]
have
the effect that if a joint referral is not signed by all applicants
and the parties are not represented by legal practitioners, the
arbitration proceedings are invalid and a nullity. She thus submitted
that in the present matter the referral order Form LC 21 was not
signed by any of the respondents and that the statement authorising
Mr Vries to act on their behalf and sign the complaint form on their
behalf was not attached to Form LC 21 thus rendering the award a
nullity and must be set aside.





[16]
Rule
14(1)
(b)
of the Rules Relating to the conduct of Conciliation and Arbitration
before the Labour Commissioner[11]
provides that a party that wishes to refer a dispute to the Labour
Commissioner for arbitration must do so by delivering a completed
form (Form LC 21) (I will in this judgment refer to the Form LC 21
simply as the ‘referral document’) whilst Rule 14(2)
(a)
provides that the referral document must be signed by a party in
accordance with Rule 5. Rule 5 provides as follows:





5.
Signing of documents





(1)
A document that a party must sign in terms of the Act or these rules
may be signed by the party or by a person entitled in terms of this
Act or these rules to represent that party in the proceedings.





(2)
If proceedings are jointly instituted ... by more than one employee,
the employees may mandate one of their member to sign documents on
their behalf.





(3)
A statement authorising the employee referred to in subrule (2) to
sign documents must be signed by each employee and attached to the
referral document ..., together with a legible list of their full
names and addresses.’



[16]
It is indeed correct that in the
Agribank
of Namibia v Simana & Another
matter
this court held that the non-compliance with the provisions of Rule 5
is fatal to a party’s case. But in the
Purity
Manganese (Pty) Ltd v Katjivena and Others
Smuts,
J (as he then was) reviewed the legal position with respect to the
effect of statutory provisions which are classified as peremptory. He
thereafter stated as follows:





Whilst
the use of the term ‘must’ may indicate an intention on
the part of the lawgiver or rule giver that a provision is mandatory
or peremptory and that non-compliance may result in invalidity
(Schierhout v Minister of Justice 1926 AD 99 at 110), this is
not the end of the enquiry and may not necessarily arise. The
labeling of provisions as peremptory or directory and ascribing
consequences by virtue of that labeling exercise has, with respect,
been correctly characterized by the Supreme Court (In Rally for
Democracy v Electoral Commission
2010 (2) NR 487 (SC) at par
[36]) as an ‘oversimplification of the semantic and
jurisprudential guidelines pragmatically developed by the courts and
distilled in a long line of judgments to differentiate between –
what they are conveniently labeled as – peremptory and
directory provisions.’





[17]
The learned Judge after revisiting the
survey
and summary of applicable principles, in considering whether a term
(such as ‘shall’ in that case) is to have a mandatory
meaning in the sense that a failure to comply would result in a
nullity, done by Van Niekerk, J in the matter of
Kanguatjivi
and Others v Shivoro Business and Estate Consultancy and Others
[12]
and concluded as follows:





[30]
Applying the approach and guidelines so usefully summarized by Van
Niekerk, J, I turn to the legislative purpose and context of the
rules. The statutory context of these rules, as already set out, is
the conciliation and determination of labour and employment disputes
‘in a manner’ which the arbitrator considers appropriate
to determine the dispute fairly and quickly as is required by s86 (7)
(a). Arbitrators are also enjoined by s86 (7) (b) to deal with ‘the
substantial merits of the dispute with the minimum of legal
formalities.’





[31]
The purpose of the rule requiring that referral documents are to be
signed, as set out in rules 14 and 5, would to be ensure that a
referral is authorized by a complainant. I enquired from Mr. Dicks in
argument whether the applicant’s point would have been
addressed if the third respondent had merely signed the referral form
when the point was taken. He responded in the affirmative. That would
in my view appear to be correct, given the fact that the requirement
of the rules would then have been met, even though the referral
document had not been signed when it had been delivered. The failure
to sign can thus be cured in the course proceedings. This is because
of the doctrine of ratification in the context of the purpose of the
requirement. In view of the purpose of the requirement (of signature
to the referral form), it would be for the office of the Labour
Commissioner to reject a referral and avoid an unauthorized referral.
In that instance, a referring party would then be required by that
office to sign the form to ensure that the referral was authorized.
But once a referring party participates in conciliation and
thereafter in arbitration, without an objection to that
participation, it would seem to me that the requirement of a
signature had at that stage become redundant. This is because of the
fact that the participation by the referring party has resulted in a
ratification of the referral.





[32]
I cannot accept that the rule giver could have intended by this rule
that the failure to have signed a referral form can, after
participation, result in an ensuing award being a nullity for that
reason alone. There is support for this proposition in a judgment by
a full bench in South Africa where there is also a requirement of a
signature to a referral form for conciliation, mediation and
arbitration. See ABC Telesales v Pasmans (2001) 22 ILJ 624
(LAC); CF Rustenberg Platinum Mines v CCMA and Others (1998)
19 ILJ 327 (LC). A contrary position had been taken previously by a
single judge in an earlier matter, holding that the failure to have
signed a referral form resulted in the CCMA in South Africa not
having jurisdiction to proceed with conciliation, mediation and
arbitration.’





[18]
In the present matter the arbitrator considered that the process,
which had been commenced by the referral document, had reached an
advanced stage when the arbitration started. This is because there
had been conciliation (which also requires a signed referral document
in terms of Rule 14) which had immediately preceded the arbitration
and which had also been chaired by him. The appellant and the
respondents participated in the preceding conciliation process. It
would appear that during the conciliation process the appellant did
not raise the failure on the part of the respondents to have signed
the referral document and joint statement during conciliation. The
point was then taken, after conciliation had been contemplated (and
failed) and the arbitration had got under way. The arbitrator in his
award dealt with the preliminary objection as follows.


It
is important to take note that the parties met first on 18th
December 2013 in conciliation. During the conciliation meeting the
respondent did not raise the issue which it now wanted to raise as
preliminary on 11 March 2014. Even if they were to be permitted to be
raised at the arbitration, this must be done right at the beginning
and not in the middle of the testimony.


On
11 March 2014, all applicants and their representative were present
precisely at 09H30. One of the respondent’s representatives Ms.
Olichea Mukuve was also on time.





At
that time, I enquired whether the arbitration should start as it was
time, all the parties in attendance agreed to proceed. Suprisingly at
about 09H58, way in the first applicant/witness’ testimony the
other two respondent’s representatives arrived. It was at that
point that Mr. Florian Amulungu, Acting Human resource Manager wanted
to introduce the points in limine.





This
was not only unprocedural but also inappropriate to do so. I am now
declining to entertain these points by the representative of
respondent as preliminary for the reasons I advance hereinabove. I
respectfully refer to the case Purity Manganese
(Pty) Ltd v Katjivena and Others
LC
86/2011 the court in that case rightly held as follows “..the
failure to have signed the referral forms in this instance where
there had been participation in conciliation would not result in the
award being a nullity.’





[19]
I am therefore of the view that on all the available evidence, in
respect of a specific finding (namely that ‘the
failure to have signed the referral document in this instance where
there had been participation in conciliation would not result in the
award being a nullity)
, when viewed collectively and applying
the legal principles relevant to the evaluation of evidence, the
arbitrator’s finding was a reasonable one in the circumstances.
The present case is distinguishable from both the Springbok
Patrols
case, where the parties did not sign the referral
document and were not identified on the referral document and the
Agribank v Simana case where, the party signing the
referral document did so well before he was authorized to represent
the complainant and the complainant did not ratify the representation
by his legal representative.





[20]
I further find that the arbitrator did not err when he found that
once a party participated in the conciliation proceedings then it
would not be open to the other protagonist in the proceedings to take
this point (the failure to sign the referral document or the failure
to attach a statement in terms of Rule 5 (3) to the referral
document. I am fortified in this view by the fact that, when I
perused the record of proceedings before the arbitrator I discovered
that, during the arbitration hearing the respondents confirmed that
all three of them authorized Mr. Vries to sign the referral document
on their behalf to that extent they submitted a document which was
marked as Exhibit K. I am thus of the view that, on the facts of this
matter the respondents ratified their failure to have signed the
referral document or to attach the statement contemplated in Rule
5(3) of the Arbitration Rules to the referral document.  I
furthermore endorse the reasoning of Smuts, J (as he then was) when
he said that, once parties have participated in proceedings which are
the consequence of the submission and delivery of a referral form,
then it would not be open to the other protagonist to take the point
of the failure to have signed form because the question of authority
would then not arise. I accordingly answer the first question in the
negative and find that the arbitrator did not err in law when he
allowed the respondents to participate in the arbitration
proceedings.


Second
ground of Appeal


[21]
The second question of law which the appellant wants this court to
resolve is formulated as follows: ‘Whether the arbitrator
was correct in law not to allow the appellant legal representation’.

The appellant formulated this ground of appeal as follows ‘The
arbitrator is compelled by law to allow legal representation when the
matter is complex but did not allow legal representation for reasons
not covered by Section 86 (13)
of the
Labour Act, 2007, which constitutes an error in law’.

Ms. Heydenreich argued that the arbitrator
has a discretion which must be judicially exercised to allow legal
representation when the matter is complex and the other party to the
dispute will not be prejudice, but in this matter the Arbitrator did
not allow legal representation for reasons not covered by Section
86 (13)
of the Labour Act, 2007. She further argued that there
was no indication whatsoever on the record that the arbitrator
adhered to the strict and peremptory requirements of s 86 of the Act
and that the nature of the dispute was complex but
the arbitrator did not allow legal representation.


[22]
Firstly the appellant does not set out the reasons (advanced by the
arbitrator) which are not covered by the s 86(13) of the Act,
secondly the appellant reaches the conclusion that the nature of the
dispute was complex and therefore the arbitrator had to allow legal
representation. The appellant does not set out the factual basis on
which it alleges that dispute was complex. In my opinion these are
not grounds of appeal at all but are conclusions drawn by the
draftsman of the notice of appeal without setting out the reasons or
basis of the conclusion. Such grounds do not inform this Court of the
grounds on which the award is attacked. Thirdly the question whether
or not the complaint, referred to the Labour Commissioner by the
respondents, is complex involves a factual enquiry and thus not
appealable. I thus find that the second ground of appeal is in this
matter not a ground of appeal at all.


Third
ground of Appeal


[23]
The third question of law which the appellant wants this court
to resolve is formulated as follows: ‘Whether arbitrator was
correct in his ruling by his interpretation and application of
Section 11(1), 12 and 76(1) of the Labour Act, 2007.’
The
appellant formulated this ground of appeal as follows:


The
arbitrator concluded, in essence that Respondents, who were all
workplace union representatives and who participated in strike action
were entitled to remuneration for the period of the legal strike
action, while Section 76 (1) of the Labour Act, 2007 read with
Section 11(1) and 12 of the Labour Act, 2007 provides otherwise and
as such made an error in law by wrong or incorrect interpretation of
section 76(1) of the Labour Act.’


[24]
Ms. Heydenreich argued that the crux of the
appeal is that the Arbitrator erred in law by his interpretation and
application of ss 11, 12 and 76 of the Labour Act, 2007. In
order to determine whether the arbitrator’s finding is one
which no reasonable arbitrator would have found and thus erred in
law,
I first have to determine the facts which were common
cause or not in issue before the arbitrator and then determine what
relevant findings the arbitrator made and then ask the question
whether on the facts found by the arbitrator he made the correct
decision.


[25]
I have indicated above that the appellant did not lead any evidence
at the arbitration hearing. The arbitrator, on the evidence produced
by the respondents thus found the following facts:


(a)
That
the respondents were not in the bargaining unit (the bargaining unit
consisted of employees in job Grades A1 to C1) as defined by
NAFINU[13] (I will in this
judgment refer to NAFINU as the union) and agreed to by the
appellant;


(b)
That the respondents were elected shop stewards (trade union
representatives) who were representing the employees in the
bargaining unit;


(c)
That the respondents represented the employees during the wage
negotiations with the appellant, during the conciliation meetings at
the Labour Commissioner’s Office and during the strike;


(d)
That the respondents were part of the employees ‘negotiating
team’ which was negotiating with the employer’s
‘negotiating team’ prior to and during the strike;


(e)
That prior to the employees of the appellant commencing with
industrial action (i.e. a strike) the appellant and the union
concluded a ‘Memorandum of Action on Industrial Action.’
In the Memorandum the parties agreed upon the ‘Ground Rules
regulating the conduct of industrial action in the dispute of
interest between the …parties.’  Clause 7.1 of that
Memorandum provides that: “The Applicant (i.e. the union) will
appoint 3 authorized representatives who shall be responsible for
ensuring compliance with the Rules.  The respondents were
appointed as the three representatives and their names and
appointments were communicated to the appellant;


(f)
That when the respondents attended to their responsibilities as the
trade union representatives or shop stewards they did not participate
in the strike but executed their duties in terms of the Ground Rules;


(g)
That when the respondents attended to their duty stations their
entrance to the duty stations was blocked and that one of the
respondents was escorted from his duty station by the appellant’s
security guard;


(h)
That Mr. Dausab was called for a meeting on 24 September 2013 which
was to take place on 25 September 2013 and that Mr. Dausab was on
sick leave for a period of two weeks starting on 09 October 2013.
That Mr. Dausab travelled with a company (appellant’s) car from
Walvis Bay to Windhoek during the period of the strike;


(i)
That the employees in the bargaining unit embarked on industrial
action for the period 25 September 2013 to 09 October 2013. The
appellant deducted the amount of:


(i)
N$ 13 705-29 from Mr. Matuzee’s salary;


(ii)
N$ 15 903-91 from Mr. Dausab’s salary; and


(iii)
N$ 17 035-65 from Ms. Forbes’ salary.





[26]
Based on the facts set out above the arbitrator made the following
finding:


Section
12 of the Labour Act sets out the parameters within which lawful
deductions can be made by an employer. It reads as follows:





12
Deductions and other acts concerning remuneration


(1)
An employer must not make any deduction from an employee's
remuneration unless-





(a)
the deduction is required or permitted in terms of a court order, or
any law;





(b)
subject to subsection (2), the deduction is-


(i)
required or permitted under any collective agreement or in terms of
any arbitration award; or





(ii)
agreed in writing and concerns a payment contemplated in subsection
(3).”





None
of the above instances were complied with by the respondent when it
effected the deductions from the applicants’ salaries. ’





[27]
Ms. Heydenreich argued that the arbitrator
erred in law when he arrived at the conclusion that the appellant
acted unlawfully when it deducted moneys from the respondents’
salaries. She submitted that the respondents were
all shop stewards [workplace employee representative] when the strike
commenced on 25 September 2013 and represented the employees who are
part of the bargaining unit, and as such are part of the bargaining
unit. She further argued that for the duration of the strike,
respondents were not at their duty stations at work and did
participate in the strike and picketing as workplace union
representatives as such the appellant was entitled to, in terms of s
76(1) of the Act to withhold payment from the respondents for the
period that they were engaged in the industrial action. Section 76 of
the Act amongst others reads as follows:





76
Strikes and lockouts in compliance with this Chapter





(1)
By taking part in a strike or a lockout in
compliance with this Chapter, a person does not commit a delict or a
breach of contract, but an employer is not obliged to remunerate an
employee for services that the employee does not render during a
strike or lockout in compliance with this Chapter.’





[28]
The difficulty with
Ms.
Heydenreich’s
arguments is that appellant did not testify at the arbitration
hearing and as such there was no evidence adduced before the
arbitrator that the respondents were part of the bargaining unit or
that they participated in the industrial action other than in their
representative capacities. Furthermore the respondents’
evidence that they were prohibited by the appellant’s senior
employees to access their work place stations was not controverted by
the appellant. In the absence of evidence to prove that the
respondents did participate in the industrial action as part of the
employees of the bargaining unit, it will be sheer speculation from
the arbitrator or this court to hold that the respondents were
participating in industrial action. The dearth of evidence would not
have entitled the appellant to the finding contented for by Ms
Heydenreich. [14]





[29]
A court will usually begin its interpretation of a statute by
applying the so-called 'literal rule'[15]
that is, that the words of a statute must be interpreted in their
ordinary, grammatical meaning:





'(I)n
construing the statute the object is, of course, to ascertain the
intention which the legislature meant to express from the language
which it employed. By far the most important rule to guide courts in
arriving at that intention is to take the language of the instrument
. . . as a whole; and, when the words are clear and unambiguous, to
place upon them their grammatical construction and to give them their
ordinary effect.'[16]





[30]
In this process regard will also be had to the 'primary' and
'cardinal' rules of construction:





'(T)he
primary rule of construction of Statutes is that the language of the
Legislature should be read in its ordinary sense; ...’[17]
and 'The cardinal rule of construction of a statute is to endeavour
to arrive at the intention of the lawgiver from the language employed
in the enactment.'[18]





[31]
On application of these general rules it immediately emerges that,
given their ordinary and literal meanings, the words employed in the
ss 11 and 12 must be interpreted to mean that:





(a)
an employer is obliged to pay to an employee any monetary
remuneration to which the employee is entitled on the normal pay day,
which may be daily, weekly, fortnightly or monthly;





(b)
an employer must not make any deduction from an employee's
remuneration unless-





(i)
the deduction is required or permitted in terms of a court order, or
any law;


(ii)
the deduction is-





·
required or permitted under any collective
agreement or in terms of any arbitration award; or






·
agreed in writing and concerns a payment in
respect of the payment of rent in respect of accommodation supplied
by the employer; goods sold by the employer; a loan advanced by the
employer; contributions to employee benefit funds; subscriptions or
levies to a registered trade union.


[32]
In the instant case, I find that the words – all the words, in
ss 11 & 12 are clear, plain and unambiguous and so they should be
given their literal and grammatical meaning and, in my opinion that
will not lead to any manifest absurdity, inconsistency, hardship or a
result that is contrary to the legislative intent and purpose. The
legislative purpose behind the sections is as clear as the day, it
seeks to ensure that employers must pay the employees timeously for
the services that they have rendered and also to disallow employers
from deducting moneys from an employee’s remuneration except
where the deduction is authorized by law. I thus find that the
arbitrator did not err in law when he found that in the present
matter the appellant did not have the sanction of the law, a court
order or an agreement with the employees when it deducted moneys from
the respondents’ remuneration and as such acted in violation of
s12 the Act.





[33]
I am of the view that the third ground of appeal disposes of this
appeal making it unnecessary for me to deal with the fourth, fifth
and sixth grounds of appeal. Given the provisions of s 118 of the
Act, which provides that the Labour Court must not make an order for
costs against a party unless that party has acted in a frivolous or
vexatious manner by instituting, proceeding with or defending those
proceedings. No order as to costs would arise in this appeal.





[34]
The order I accordingly make is:





1
That the appeal is dismissed.





2
There is no order as to costs.




SFI
UEITELE


Judge


APPEARANCES


APPLICANT: D
BUGAN


Of
HARMSE ATTORNEYS


FIRST
RESPONDENT: A HEYDENREICH



Of DE
BEER LAW CHAMBERS







[1]
Act No 7 of 2011.




[2]
Published by Government Notice 261 in Government Gazette No 4151 of
31 October 2008.




[3]
1996 NR 36 (LC) at 43.




[4]
1997 NR 102 at 105D – E.




[5]
1999 NR 219 at 224.




[6]
1998 (3) SA 349 (SCA).




[7]
In the matter
House
and Home v Majiedt and Others

(LCA 46/2011) [2012] NALC 31 (22 August 2012) at para [7].




[8]
An unreported judgment of this Court case
number
LCA 32/2013 delivered on 17 February 2014
.




[9]
An unreported judgment of this Court
case
number LC 86/2011 delivered on 26 February 2014.




[10]
An unreported judgment of this Court
case
number LCA 70/2012) delivered on 31 May 2013.




[11]
Published by Government Notice No 262 in Government Gazette No 4151
of 31 October 2008.




[12]
2013 (1) NR 271 (HC) at par [22] – [25].




[13]
NAFINU is the acronym for Namibia Financial Institutions Union
which is the Trade Union to which the respondents belonged.




[14]
Rodgerson
v SWE Power and Pumps (Pty) Ltd

1990 NR 230 (SC).




[15]
See for instance the unreported judgment of this Court of The
Prosecutor
General v Uuyuni

[2013] NAHCMD 67 (POCA case No 4/2012) delivered on 12 March 2013).




[16]
Per Innes, CJ in
Venter
v Rex

1907 TS 910 at 913.




[17]
Union
Government (Minister of Finance) v Mack

1917 AD 731 at 739 per Solomon, JA.




[18]
See Stratford, JA in
Bhyat
v Commissioner for Immigration

1932 AD 125 at 129.