REPUBLIC
OF NAMIBIA
LABOUR
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case
no: LC 160/2014
DATE:
22 JANUARY 2016
In
the matter between:
RONALD ALBERT
SLABBERT......................................................................................APPLICANT
And
THE
LABOUR
COMMISSIONER.......................................................................1ST
RESPONDENT
MATHEO
RUDATH,
N.O......................................................................................2ND
RESPONDENT
NAMDEB
DIAMOND CORPORTATION (PTY)
LTD......................................3RD
RESPONDENT
THE
MINISTER OF
LABOUR.............................................................................4TH
RESPONDENT
Neutral
citation: Slabbert v The Labour
Commissioner (LC 160/2014) [2016]
NALCMD 4 (22 January 2016)
Coram:
UNENGU AJ
Heard:
25 September 2015
Delivered:
22 January 2016
Flynote:
Review application to review a decision
by the arbitrator – Referral of dispute filed out of time –
No provisions for condonation of late filing of referral of dispute
in terms of s 86(2)(a)
of the Labour Act 11 of 2007 – Application dismissed –
Dispute had prescribed.
Summary:
The applicant launched an application
to review and set aside the refusal of the arbitrator to accept a
dispute referral form filed after the prescribed period of six months
within which to file such a referral in terms of s 86(2)(a)
of the Labour Act 11of 2007 – Court dismissed the application
as it
has been filed outside the prescribed time and there is no
condonation for the late filing of the referral form in terms of
section s 86(2)(a)
of the Act.
ORDER
The
application is dismissed.
JUDGMENT
UNENGU
AJ:
[1]
This is an application for review brought by the applicant in terms
of s 89(A) of the Labour Act[1]
(herein referred to as the Act), read with Rule 14 of the Labour
Court Rules.
[2]
The relief, the applicant seeks from the court is set out in the
notice of motion which reads.
‘TAKE
NOTICE that RONALD
SLABBERT (hereinafter called the
applicant) intends to apply to this Court for the proceedings and/or
decision set out below to be reviewed and for an order in the
following terms-
1.
Reviewing and setting aside the decision taken on 19 September 2014
by the First Respondent not to accept the referral of dispute dated
15 July 2014 and filed 17 July 2014 and not condone the
non-compliance with Section 86 (2) (a) of the Labour Act, 2007 (Act
11 of 2007).
2.
In the alternative to 1 above that it be declared that the First
Respondent failed to exercise his judicial discretion in not
accepting the condonation application, and failed to act fairly and
reasonably in terms of the common law and/or Article 12 and 18 of the
Namibian Constitution.
3.
In addition to 2 above, that it be (sic) declare that the First
Respondent failed to apply the Audi alterm partem rule in
terms of the common law and/or Article 12 and 18 of the Namibian
Constitution.
4.
Order that the First Respondent condone applicant’s
non-compliance with Section 86 (2) (a) of the Labour Act, 2007 (Act
11 of 2007) and that the matter be referred back for Arbitration to
be heard de novo before a different arbitrator.
5.
Confirm that the Arbitration proceedings, under arbitration number
SROR 14-12, conducted by the Second Respondent on 02 July 2012 and
the subsequent “Dismissal of the Arbitration” made by the
Second Respondent on 22 July 2014 is null and void as there was
non-compliance with Section 86(12) of Act 11 of 2007.
6.
That in the event of this application being opposed, such opposing
party be ordered to pay the costs of this application, jointly and
severally, if applicable, only if the above Honourable Court deems it
appropriate within the circumstances; and
7.
Granting such further or alternative relief as this Honourable Court
may deem appropriate.’
[3]
The third respondent is opposing the review application on the
grounds which will be discussed later in the judgment.
[4]
The applicant was an employee of the third respondent who was
dismissed from employment on 22 August 2012 after a disciplinary
hearing conducted against him on misconduct charges of
misappropriation, breach of trust, non-compliance with the employer’s
policies and breach of the code of ethics. Although the applicant was
not happy with the result of the disciplinary hearing, he did not
appeal the finding on any of the charges he was found guilty by the
Disciplinary Review Committee of the Company. He referred a dispute
to the Office of the Labour Commissioner on 11
December 2012, instead.
[5]
The dispute was set down for conciliation and arbitration on 28
January 2013, but the applicant was not prepared to proceed and as
result, he applied for the proceedings to be postponed so that he
could prepare for the hearing. The postponement was refused. The
applicant again not happy with the ruling of the arbitrator, he
decided to stay away from the hearing. However, the arbitrator
proceeded with the hearing in absence of the applicant and dismissed
the dispute. On 22 February 2013 he received a fax by which he was
informed that his complaint was dismissed.
[6]
He took the decision to dismiss his complaint on review and the
Labour Court on 4 October 2013 set aside the award and referred the
complaint back to the Office of the Labour Commissioner with a
direction that the arbitration be heard afresh on merits before a
different arbitrator. On 2 July 2014 the second respondent dismissed
the dispute due to the fact that LC 21 form did not comply with the
Rules relating to conciliation and arbitration as the form was signed
by a consultant who by law was not authorised to sign the LC 21 form.
[7]
The applicant then approached De Beer Law Chambers legal
practitioners who adviced him to lodge a fresh dispute to the Office
of the Labour Commissioner – which he did on 17 July 2014. The
decision of 2 July 2014 by the arbitrator, however, was not
challenged, therefore still valid.
[8]
In the written heads of argument, Ms Heydenreich, counsel for the
applicant argues that the reason why the second respondent’s
dismissal of the dispute was not taken on review is because of the
decision in the matter of Agricultural
Bank of Namibia v Simana[2]
by Hoff J delivered on 12 February 2014 where Hoff J, said that the
referral in terms of Rule 5 must be signed by a party or person
entitled to represent the party in the proceedings. According to her,
as the labour consultant who signed the LC 21 on behalf of the
applicant was excluded by the provisions of s 86(12) of the Act,
coupled with the decision in the Agribank
case, it was thought that the referral of the dispute for which Form
LC 21 was signed by the labour consultant, was a nullity, therefore,
arbitration proceedings following such a referral, likewise was a
nullity and any award following therefrom is also a nullity.
[9]
However, in her oral submission Ms Heydenreich conceded that the
award was valid and that the applicant had the opportunity at that
stage to have the decision reviewed. The only reason why the award
was not taken on review, she said, is because they were unclear
because of the judgments of Hoff J in Agribank
supra and the judgment of Smuts J in Purity
Manganese (Pty) Ltd v Katjivena[3].
[10]
The reason why it was unclear to counsel, I cannot comprehend. The
decision by Smuts J in the Purity
Manganese was in their favour,
therefore, could have afforded the applicant good authority to take
the decision of the arbitrator on appeal or review but decided not to
follow the decision, instead, launched another referral to the Office
of the Labour Commissioner with regard the same dispute. This is the
referral the arbitrator said it has been lodged out of time
prescribed by the Labour Act, namely six months from the date of
dismissal.
[11]
Assuming that counsel is correct, that, because the LC 21 form which
was signed by the labour consultant, who by law, was not allowed to
sign the form, rendered the referral of the dispute and the
arbitration flowing therefrom a nullity, still the time of six months
prescribed by s 86(2)(a)
of the Act, within which the applicant had to refer the dispute after
his dismissal remained six months. And this six months period started
running from the day the applicant was informed about the decision or
finding of the arbitrator.
[12]
Counsel, therefore, cannot be correct in her argument that because of
the defect in the first referral, another referral to the Office of
the Labour Commissioner could be made even outside the six months
period stipulated in the Act.
[13]
Ms Heydenreich also referred to Purity
Manganese (Pty) Ltd v Katjivena and Auto Exec CC v Johan van Wyk[4]
in
which cases it was said, amongst others that, the rule given had not
intended that the proceedings will not result in a nullity where the
referral form had not been signed and when the parties had
participated in the proceedings – because the participation of
the litigants in the proceedings amounted to ratification of the
unsigned form.
[14]
I find nothing wrong with the view expressed in the abovementioned
cases. Once a litigant to a dispute has taken a decision, that
litigant also accepts the consequences which may or might flow from
the selection made provided it was made without undue influence.
[15]
Having said that, the facts of the present matter is distinguishable
from the facts of the cases referred to above, in my opinion.
Unsigned referral forms were the subject matters in the cases
referred to above whereas in the present matter, the issue is the
time within which to refer a dispute for resolution to the Office of
the Labour Commissioner.
[16]
Referral forms are regulated by the Rules of the Labour Court and
Regulations dealing with Conciliations and Arbitration –
therefore any non-compliance therewith, may be condoned by the court
on application and on good cause shown[5],
at any time of the proceedings. However, the same is not with regard
the failure to comply with the provisions of s 86(2), which reads as
follows:
‘(2)
A party may refer a dispute in terms of subsection (1) only –
(a)
within six months after the date of the dismissal, if the
dispute concerns a dismissal, or
(b)
within one year after the dispute arising, in any other case.’
[17]
In the review application at hand, the dispute concerns a dismissal,
therefore, the provisions of subsection (2)(a)
is applicable. Rule 15 grants the Labour Court a discretion to
condone a non-compliance with any rule – on application and on
notice to all interested parties explaining the reason(s) for the
default in an affidavit. No such a provision is in the Labour Act
authorising the court or a tribunal to condone the non-compliance
with the section or to extent the six months period after the date of
dismissal within which a dispute of such dismissal may be referred
for conciliation and arbitration.
[18]
The applicant did comply with the provisions of s 86(2)(a)
initially but the second referral was done after the expiration of
six months rendering the referral of the dispute to the Labour
Commissioner out of time and as a result had prescribed in terms of s
86(2)(a).
(See Nedbank Ltd v Louw
(LC 68/2010) delivered on 30 November 2010 at para 10; Namibia
Development Corporation v Mwandingi and Others
2013 (3) NR 737 (LC) para 34).
[19]
As indicated above that no condonation is provided for the late
referral of the dispute to the Labour Commissioner in terms of s
86(2) while in s 89(3) condonation for the late filing of an appeal
can be granted by the Labour Court. If it was the intention of the
legislative body to make a provision for the late filling of a
referral to the Labour Commissioner with regard the dismissal, it
could have expressly stated so in the Act but left it out probably
for a good reason which is for speedy resolutions of disputes
concerning dismissals. This is clear from the provisions of
subsection (2)(a) and (b).
[20]
It is clear from the evidence on record and from both written heads
and the oral submissions by counsel for the applicant that his legal
practitioners did not advise him and handled his case properly. This
include the service he got from the labour consultant. They are the
architects of his rue, in my view. In her oral submissions, Ms
Heydenreich, amongst others, submitted that due to the fact that was
at that stage, that two different cases dealt with form LC 21, it
was, (according to her) confusing for the applicant, and as such was
advised to go with the Agribank case to refile the dispute on
a new LC 21 form with a condonation application.
[21]
It shows clearly that counsel was only concerned with the referral
form (LC 21) not with the time within which the dispute self should
be referred to the Labour Commissioner. She conceded that the
applicant had an opportunity to review the decision made by the
arbitrator by the Labour Court but did not make use of that
opportunity.
[22]
It is also not clear why the legal practitioner who advised the
applicant not to appeal or to review the decision of the arbitrator
did not seek assistance from an experienced legal practitioner
(advocate), who could have advised both the applicant and his legal
practitioner of record on the correct course to follow. This, the
legal practitioner did not do and instead elected to advise the
applicant wrongly by launching the second referral of the dispute to
Labour Commissioner out of time. The legal practitioner is the
representative whom the applicant has chosen for himself, therefore,
the applicant will have to stomach the consequences of their
relationship irrespective the circumstances or natures of the
failures are[6].
[23]
In the meantime, it is the contention of Mr Dicks, counsel for the
respondent that the claim or dispute of the applicant has prescribed,
no matter the excuse the applicant has to offer. He submitted that
condonation for the non-compliance with the section providing for the
time of six months, is out of question. He pointed out the difference
between the provisions in the Labour Act of 1992 and the current
Labour Act 11 of 2007. Whereas in the 1992 Labour Act, the period of
12 months could have been extended by the court on good cause shown –
that provision was omitted in the 2007 Labour Act. According to Mr
Dicks, what is relevant is the date of 11 August 2012 when the cause
of action arose, and 2 July 2014 when the dispute was dismissed. What
happened between these two dates are not worth considering, he
further argued. I think he is correct and I tend to agree with him. I
agree again and accept Mr Dick’s submission that the applicant
looked at one decision by Hoff J and ignored other decisions of this
court which cases[7] could have
assisted them in making a correct choice.
[24]
In addition, Mr Dicks argued that s 117 of the Labour Act cannot be
of assistance to the applicant’s case as it is not wide enough
to permit the Labour Commissioner or the court to ignore the existing
law. Further, it is his submission that the arbitrator was correct
not to accept the dispute of 15 July 2014 referred to the Labour
Commissioner – filed on 17 July 2014 as such referral was out
of time, that the arbitrator did not have the power to condone the
non-compliance with s 86(2) and had no judicial discretion to
exercise.
[25]
The gist of Mr Dick’s submissions, if I understood him
correctly, is, that the arbitrator did nothing wrong by refusing to
accept the second referral of the dispute because the dispute had
prescribed, therefore, the applicant had no case to refer to the
Labour Commissioner for conciliation and arbitration. The submissions
are not without substance in my view. That being the case, and as
already said, I am not satisfied that the applicant had managed to
prove on a balance of probabilities that an irregularity or any
misdirection was committed by the arbitrator for the proceedings or
the decision taken on 15 July 2014 to be reviewed and set aside, on
any of the grounds set out in the notice of motion.
[26]
I agree with and accept the arguments by Mr Dicks and reject those of
Ms Heydenreich as unconvincing – which arguments are tainted
with unsubstantiated allegations in an attempt to justify the wrong
advice given to the applicant, namely to file another dispute
referral at the time when the dispute had already prescribed.
[27]
There are other prayers made by counsel for the applicant during oral
submissions, which I have taken note of but in view of the conclusion
I have come to in the matter, I do not think it is necessary to
comment on them.
[28]
In the result, the following order is made:
The
application is dismissed.
E
P UNENGU
Acting
Judge
APPEARANCES
APPLICANT
: A Heydenreich
of
De Beer Law Chambers, Windhoek
3RD
RESPONDENT: G Dicks
Instructed
by Köpplinger Boltman, Windhoek
[2]
LCA 32/2013 [2014] NALCMD 5.
[3]
LC 86/2012 [2014] NALCMD 10.
[4]
LC 150/2013 [2014] NALCMD 16 (16 April 2014).
[5]
Rule 15 of the Labour Act.
[6]
Swanepoel v Marais and Others 1992 NR 1 at 3E-F.
[7]
Purity Manganese (footnote 3 above), Nedbank Ltd v Louw
and the
Mwandingi case cited in para 17