Court name
Labour Court Main Division
Case number
LCA 56 of 2014

Social Security Commission v Mutwa (LCA 56 of 2014) [2016] NALCMD 2 (18 January 2016);

Media neutral citation
[2016] NALCMD 2
Schimming-Chase AJ




no: LCA 56/2014

18 JANUARY 2016

the matter between:






citation: Social Security Commission v Mutwa (LCA 56-2014) [2016]
NALCMD 2 (18 January 2016)


19 June 2015

18 January 2016

Labour Law – Section 86(2)(b) of the Labour Act No 11 of 2007–
Dispute to be referred within one year of dispute arising –
Dispute referred to Labour Commissioner after a period of four years
– The first respondent made no effort to exhaust her internal
remedies within a reasonable time - Award accordingly made contrary
to the provisions of section 86(2)(b) – Appeal upheld, court
holding that the dispute prescribed under section 86 (2)(b) of the
Labour Act.



On 19 June 2015, this court granted an order upholding the
appellant’s appeal and set aside the arbitration award made by
the second respondent in favour of the first respondent. The appeal
was initially only opposed by the first respondent, who withdrew her
opposition on 24 February 2015. The first respondent also did not
participate in any further process related to the appeal.  The
reasons for the order are set out below.

The appellant appealed against an award granted in favour of the
first respondent on 4 November 2014 and raised a number of grounds in
support of the appeal. One of the grounds raised is whether or not
the first respondent’s claim prescribed in terms of section
86(2)(b) of the Labour Act No 11 of 2007, which provides that a party
may refer a dispute other than a dispute concerning unfair dismissal
within one year of the dispute arising. This question was raised as a
preliminary point at the outset of the arbitration and was
effectively dismissed by the arbitrator.


The first respondent worked for the appellant and was promoted to the
position of Regional Branch Manager in Walvis Bay with effect from 1
December 2009. As part of her remuneration package resulting from the
promotion, the first respondent became entitled to and received a
motor vehicle allowance amounting to N$ 10 668.76 per month, which
significantly increased her monthly income.

The dispute between the parties essentially concerns the increased
promotional package that the first defendant became entitled to in
terms of the new position. The appellant contends that persons
appointed to the specific job category that the appellant was
appointed to, receive a motor vehicle allowance as part of their
increased remuneration. The first respondent contends that the motor
vehicle allowance extended to her when she was so promoted is not
part of her remuneration, but a benefit. The first respondent relied
on clause 10.8.3 of the appellant’s Procedure Manual which

Promotion increase

a serving employee is offered a higher job, which carries a tangible
increased responsibility or greater status and where the salaries
overlap, it can be recognised by giving an immediate promotional
salary increase. This promotional salary increase will be higher than
he /she currently earns.’

The terms of the above policy are not disputed; the appellant
contends that the first respondent did in fact receive a promotional
increase on her appointment to the higher position, and the first
respondent disagrees.  The first respondent referred the dispute
on this issue of her remuneration package in terms of section 86 of
the Labour Act on 30 October 2013. On the first respondent’s
version her disagreement on her new remuneration package resulted in
her querying the issue with the General Manager of the appellant
during December 2009. Feedback was given on the appellant’s
stance on 11 January 2010, and the first respondent was not satisfied
with the feedback.  She communicated this to her supervisor.
 The first respondent did nothing further until July 2011, when
she ‘revived’ her salary query with the new General
Manager (some one and a half years later). Feedback was promised but
apparently not provided according to the first respondent. During
October and November 2011 meetings were then held between the first
respondent and the appellant’s officials, each side remaining
with their initial positions. The first respondent then sent an
official grievance through her union representative during August
2012. Negotiations and consultations intermittently took place
between November 2012 and September 2013. The first respondent then
referred the dispute to the Office of the Labour Commissioner during
October 2013.  According to her, it was only after the latter
consultative processes that the first respondent took a ‘final
decision to declare this issue as a dispute of right and unfair
labour practice’.

On the first respondent’s own version, a dispute arose between
the parties after she received the initial negative response in
January 2010. Between January 2010 and July 2011, the first
respondent failed to take any steps to resolve the dispute and
continued working and receiving the motor vehicle allowance. 
One and a half years later, the first respondent inexplicably decided
to take up the process.  This was in July 2011.  It still
took over two years to refer the dispute.

Although employees have the right of recourse in terms of the Labour
Act to refer disputes relating to their employment, it is not
acceptable that they drag their feet beyond the time clearly set out
by section 86(2)(b) of the Labour Act.  As Mr Tjombe correctly
pointed out, the first respondent’s claim for the remuneration
would also have prescribed by virtue of the Prescription Act, 68 of

I am in agreement with the submissions by Mr Tjombe, appearing for
the appellant, that the first respondent’s explanations for the
delay are entirely unreasonable. In her summary of facts
substantiating her referral to conciliation and arbitration, and in
the arbitration proceedings, she claimed that

“… took
long under discussion internally at the company level and it would
have been a premature decision from my side should I have referred
the dispute while there were positive discussions and email exchanges
creating an impression that the matter would be resolved internally.”

These email exchanges took place after the initial one and a half
year period of complete inaction.  The first respondent also
offered no explanation why she took so long to ‘revive’
her issue some one and a half years after she received the
‘unsatisfactory’ answer. Even the feedback given to her
in November 2011 was according to the first respondent,  “not
encouraging and showed
from management side on the matter”. Yet, the first respondent
did not lodge a dispute. Until October 2013.

I was referred by Mr Tjombe to the decision of the Supreme Court in
Housing Enterprise v Hinda-Mbazira
it was held that Section 86(2)(a) read together with section 82(9)
makes it clear that a referral can only be considered by the Labour
Commissioner once all internal remedies in an undertaking have been

National Housing Enterprise
case involved
inter alia the
determination of the date of dismissal of the employee for purposes
of calculating the 6 month period within which an employee could
refer a dismissal as a dispute in terms of section 86(2)(a). In this
matter, the dispute does not concern a dismissal but an
interpretation and or calculation of additional salary/benefits
accruing subsequent to a promotion. Section 86(2)(b) also
specifically refers to a period of one year “
the dispute arising”
. Dispute is
defined in section 1 as including any disagreement between an
employer and an employee, which disagreement relates to a labour
matter. The remuneration issues between the parties is a labour
matter and the first respondent was aware of the dispute since
December 2009 and received the same negative response in January 2010
and November 2011.

Mr Tjombe correctly has no qualm with the principles set down in the
above case, to the effect that internal remedies should be exhausted
first. His argument is that the first respondent did not take
reasonable steps to internally resolve the dispute before referring
the dispute to the Labour Commissioner. Instead she delayed
unnecessarily and dragged the dispute on for a period of 4 years
after it arose, and only thereafter, did she refer the dispute. 
I agree that in these circumstances the first respondent failed to
comply with the provisions of section 86(2)(b) of the Labour Act and
that her claim in terms of that section had prescribed. 
Accordingly the appeal succeeds.

These are the reasons for the order dated 19 June 2015.




N Tjombe

TjombeElago Law Firm, Windhoek

2014 (4) NR 1046(SC).

At page 24 para 24