Court name
Labour Court
Case number
51 of 2010
Title

Overberg Fishing (Pty) Ltd v Villar Decampo (51 of 2010) [2011] NALC 17 (05 July 2011);

Media neutral citation
[2011] NALC 17
Coram
Parker J

















SUMMARY
Reportable’







CASE
NO.: LCA 51/2010











IN
THE LABOUR COURT OF NAMIBIA











In
the matter between:







OVERBERG
FISHING (PTY) LTD v ALFONSO VILLAR DOCAMPO







PARKER
J







2011
July 5


____________________________________________________________________________







Labour
Law -
Appeal and cross-appeal – Appellant and
cross-appellant appealing against decision of district labour court,
Walvis Bay, made in terms of the previous Act (Act No. 6 of 1992) –
Court finding that the district labour court misdirected itself when
it failed to determine nature of employment contract between
appellant and cross-appellant – Court concluding that such
determination was critical and crucial in deciding whether there was
even been a dismissal, and if there was, whether the dismissal was
unfair – Court finding that the employment relationship between
the appellant and cross-appellant was based on fixed term contract of
employment which terminated by effluxion of time and it was
terminated fairly – Court finding further that the misdirection
was so serious that it amounted to failure of justice in the
proceedings in the district labour court – Consequently, Court
upholding appeal and dismissing cross-appeal – Court holding
that in the circumstances, the Court was entitled to interfere with
the district labour court’s finding of unfair dismissal and the
sanction imposed.








Held,
that the principle of fixed-term contract of employment is still part
of our law; and a priori, termination of fixed-term contract
of employment by effluxion of time is still part of our law. These
principles were not repealed by the previous Labour Act; neither have
they been repealed by its successor Act, the Labour Act, 2007 (Act
No. 11 of 2007).







Held,
further that fixed-term contract of employment terminates by
effluxion of time and the only thing that remains is whether the
employee was given notice within a reasonable time before the
expiration of the contract that the contract would not be renewed;
and such notice is only required if the fixed-term contract contains
a renewability clause; otherwise such notice is not a requirement of
fairness.



















































































































































CASE NO.: LCA 51/2010











IN THE LABOUR COURT OF NAMIBIA







In the matter between:











OVERBERG FISHING (PTY) LTD
….....................................................................Appellant







and







ALFONSO VILLAR DOCAMPO
…....................................................................Respondent











CORAM: PARKER, J



Heard on: 2011 April 8



Delivered on: 2011 July 5



______________________________________________________________________



JUDGMENT







PARKER J



[1] In this matter there are an appeal
and a cross-appeal. There is the appeal by Overberg Fishing (Pty) Ltd
and it is against the decision of the defunct district labour court
(‘DLC’), Walvis Bay. In the appeal Overberg Fishing (Pty)
Ltd is the appellant, and Docampo the respondent; and I shall refer
to the parties by name, that is, ‘Overberg’ and
‘Docampo’. Then, there is a cross-appeal; also against
the decision of the Walvis Bay DLC in which Docampo is the appellant,
and Overberg Fishing (Pty) Ltd the respondent. In the cross-appeal,
too, I shall refer to the parties by name.











[2] This is an appeal and a
cross-appeal and so it is to the record that I direct my attention to
determine whether or not to uphold the appeal and the cross-appeal.
In the present proceedings it is my view that the critical and
crucial threshold question that the DLC should, as a matter of law,
have determined above all else is the nature of the employment
relationship that existed between Overberg and Docampo; otherwise how
could the DLC have determined the complaint that was lodged by
Docampo, seeing that it was a labour matter. The DLC did not. In the
opinion of the DLC, ‘the nature of the agreement concluded
between the two parties (i.e. Overberg and Docampo) is irrelevant and
rather the manner in which it was terminated is to be addressed.’







[3] The upshot of the DLC’s
holding is that the DLC did not consider the crucial threshold
question, as aforesaid. By so doing, the DLC took a wrong view of the
law. It is only when the nature of the employment relationship
evidenced by the contract of employment is enquired into and
determined that the court or tribunal is able to determine judicially
that one party or the other has not conducted himself or herself in
terms of the Labour Act; in the instant case, the previous Labour
Act, i.e. Act No. 9 of 1992; or even more important, to determine
whether that employment relationship is subject to the Labour Act.
For instance, it is crucial and critical for the DLC to have
determined whether the contract of employment, allegedly entered into
between Overberg and Docampo was a fixed-term contract or an
indefinite-term contract. A fixed-term contract terminates by
effluxion of time and the only thing that remains is whether the
employee was given notice within a reasonable time before the
expiration of the contract that the contract would not be renewed.
For the avoidance of doubt, I note that such notice is only required
if the fixed-term contract contains a renewability clause; otherwise
such notice is not a requirement of fairness. Thus, such notice is
required where the contract of employment is a renewable fixed-term
contract.







[4] The two causes, for our present
purposes, by which an indefinite-term contract of employment
terminates, are (1) dismissal (that is, involuntary termination) and
(2) the giving of notice of termination of the contract (that is
voluntary termination). In cause (1), the question a court or other
tribunal will enquire into and determine is whether a proper notice
was given in terms of the contract of employment or some collective
agreement or in terms of the Labour Act. In cause (2), the question
that the court or other tribunal will enquire into and determine is
whether the dismissal was fair – substantively and
procedurally. If the employer does not give proper notice, that could
amount to unfair dismissal.







[5] In the instant case Docampo lodged
a complaint on Form 2 in terms of rule 3 of the Rules of District
Labour Courts (‘the DLC Rules’) under the previous Labour
Act. Thereafter, Docampo filed with the DLC what Docampo called
‘Notice to Amendment(d)’. In my opinion the DLC should
not have paid any attention to this meaningless paper: a notice to
amend is not an amendment of what the filer of the paper wishes to
amend. Accordingly, the only paper filed in accordance with the DLC
Rules was the complaint on Form 2; and so it was only Form 2 that had
relevance in the proceedings before the DLC.







[6] Appearing in Annexure A to the
aforementioned Form 2 are the following:







5.
On the 30th of August 2007 the Respondent (Overberg), as
represented by Mr. Ivo de Gouveia, presented a written employment
agreement to the complainant (Docampo), which was accepted and signed
by the complainant.







6.
In terms of the said written agreement it was, inter alia, agreed
that the Respondent would employ the Complainant for a fixed term of
one year as chief mate on the Vessel Campa Del Infanson, a fishing
vessel of the Respondent operating from Walvis Bay.







[7] It seems to me clear from the Form
2 that was lodged in terms of the DLC Rules that the employment
relationship that existed between Overberg and Docampo was based on a
one-year-fixed-term contract of employment and that the contract came
to an end in August 2008. And as I have shown previously, a
fixed-term contract comes to an end by effluxion of time. And the
procedure that was adopted by Overberg was fair in that in June 2008,
that is, two months before the expiration of the fixed-term period,
Overberg informed Docampo that the contract would not be renewed and,
furthermore, Overberg did that which, in my view, was supererogatory:
Overberg gave Docampo the reason why the contract would not be
renewed at the expiration of the fixed-term period. Overberg was
applying the provisions of the Affirmative Action (Employment) Act,
1998 (Act No. 29 of 1998) to the extent that there was sufficient
‘affirmative action personnel’ (i.e. preferential
personnel) available who, in terms of that Act, took preference over
Docampo.







[8] I find that Overberg cannot be
faulted on any legal ground under the previous Labour Act for unfair
conduct: Docampo’s contract came to an end by effluxion of
time. And two months before the expiration of the contract, Overberg
informed Docampo that it would not renew the contract upon its
expiration. Overberg furthermore informed Docampo that Overberg
applied affirmative action in its decision in terms of Act No. 29 of
1998.







[9] It cannot on any legal ground be
argued that there has been an unfair dismissal. Who dismissed
Docampo? With the greatest deference to the learned magistrate, the
learned chairperson misread the ratio decidendi of Meintjies
v Joe Gross t/a Joe’s Beer House
2003 NR 221 (LC). The
ratio decidendi concerns cause (2) in para [4], above.
To illustrate my point; suppose for example, X, a Zimbabwean national
was appointed to the post of Magistrate for a two-year-fixed-term
contract, commencing 1 January 2008. In November 2009, the
Magistrates’ Commission informs X that her contract would not
be renewed at its expiration because a Namibian UNAM Law graduate has
been identified to take X’s position. Can it seriously be
argued that when X leaves her post, that X has been dismissed by the
Commission? I do not think so. The principle of fixed-term contract
of employment is still part of our law; and a priori,
termination of fixed-term contract by effluxion of time is still part
of our law. These principles were not repealed by the previous Labour
Act; neither have they been repealed by its successor, the Labour
Act, 2007 (Act No. 11 of 2007).







[10] By concluding that ‘the
nature of the (employment) agreement between the parties (Overberg
and Docampo) is irrelevant and rather the manner in which it was
terminated is to be addressed’, the learned chairperson of the
DLC, with respect, lost her bearing of the essence of the matter she
was seized with. I have demonstrated previously that the nature of
the employment contract is relevant and plays a critical role in
determining whether there has been a dismissal and, if there has been
a dismissal, whether such dismissal was unfair.







[11] Thus, without enquiring into and
determining the nature of the employment relationship as evidenced by
the contract of employment, the learned chairperson of the DLC
misdirected herself; and the misdirection is so serious that it
amounts to failure of justice in the proceedings in the DLC. I have
demonstrated previously that Docampo was not dismissed by Overberg.
Docampo’s fixed-term contract of employment terminated by
effluxion of time; and in a fair manner, Overberg informed Docampo
timeously why his fixed-term contract would not be renewed upon the
expiration of the fixed term.







[12] For the aforegoing reasoning and
conclusions, it is my judgment that the appeal by Overberg succeeds;
and Docampo’s cross-appeal fails. That being the case, this
Court is entitled to interfere with the DLC’s finding of unfair
dismissal and the sanction imposed, as I do.







[13] Whereupon, I order as follows:







(1) Overberg’s appeal is upheld.



(2) Docampo’s cross-appeal is
dismissed.







(3) The award by the District Labour
Court, Walvis Bay, is set aside, and the following is put in its
place:








  1. Overberg must pay Docampo severance
    allowance:




Euros 843.75 x 3 (weeks wages) = Euros
2,531.25; such amount must be paid in Namibia Dollars,
calculated at the foreign exchange rate ruling as at the date of this
judgment; and further the amount must be paid on or before 31 July
2011; and if not so paid, the amount shall attract 20% p.a. mora
interest from 1 August 2011 until the amount is paid.








  1. No order as to costs against any
    party.
















___________________



PARKER J











COUNSEL ON BEHALF OF THE APPELLANT:



Adv. Van Vuuren







Instructed by: MB De Klerk &
Associates











COUNSEL ON BEHALF OF THE
RESPONDENT:



Adv. Van Zyl







Instructed by: GF Köpplinger
Legal Practitioners