Court name
Labour Court
Case name
Reilly v Namibia Ports Authority
Media neutral citation
[2011] NALC 20
Judge
Muller J














17












CASE NO.: LCA 96/2009



IN THE LABOUR COURT OF
NAMIBIA







In the matter between:











RUBETTA JOAN AGNES REILLY
…..............................................................APPELLANT











and











NAMIBIA PORTS AUTHORITY
…................................................................RESPONDENT











CORAM: MULLER J











Heard on: 24 June 2011



Delivered on: 22 July 2011











APPEAL JUDGMENT







MULLER, J.: [1] The
appellant instituted the complaint in terms of rule 6 in the District
Labour Court for the district of Walvis Bay in terms of which she
sought reinstatement of her position as manager: corporate
communications with the respondent. This complaint was opposed by the
respondent. In addition to form 2 regarding her complaint, the
appellant also filed particulars of complaint together with form 2.
The respondent filed a reply in terms of rule 7 of the rules of the
District Labour Court, which it subsequently amplified by an
amendment and raised several defences therein. On 26 April 2006 the
Walvis Bay District Labour Court heard arguments in this matter. At
the time a point in limine was raised by the respondent, which
was upheld by the District Labour Court and the complaint was
dismissed. The complainant noted an appeal against that ruling by the
District Labour Court. Problems with the filing of the record led to
a delay of this appeal which was eventually heard on 24 June 2011.







[2] At the hearing of the appeal Adv
Strydom appeared for the appellant and Adv Mouton for the respondent.
Both counsel filed written heads of arguments in advance. This court
heard submissions on behalf of the appellant and the respondent by
their respective counsel in amplification to the written heads of
arguments. At the end of the hearing the court reserved a judgment.







[3] The grounds of appeal against the
ruling of the District Labour Court as contained in the appellant’s
notice of appeal are the following:



1. That
the learned chairperson erred in the law and/or on the facts by
failing to appreciate that a retrenchment in terms of section 50 in
any event is a form of dismissal and as such and by necessary
implication entails the relief sought in section 46 of the Labour
Act, 1994



2. That the learned chairperson
erred in the law and/or on the facts by finding that the
complainant’s action constitutes an action in terms of which
relief is sought on the basis of a criminal remedy whereas in effect
no such relief is sought save for that contemplated in section 46 of
the Labour Act.



3. That the learned chairperson
erred in the law and/or on the facts in that sufficient particulars
were contained in the complaint read together with the particulars of
complaint to constitute a cause of action as envisaged by section 46
of the Labour Act which indeed was the case.



4. That the learned chairperson
erred in the law and/or on the facts in that he failed to appreciate
the ambit of his own discretion with regard to the fact that the
complainant’s particulars of complaint did set out a cause of
action and that the court does not follows a strict approach on
pleadings and that express provision is made in the District Labour
Court to relax such strict compliance.



5. That the learned chairperson
erred in the law and/or on the facts in that the rules expressly
provide and afford the chairperson with such powers as to what he may
consider most suitable to the clarification of the issues before
court and generally to the just handling of the proceedings which in
this case the learned chairperson failed to do.



6. That the learned chairperson
erred in the law and/or on the facts by failing to appreciate the
ambit of the decision of the Labour Court in respect of which both
parties were involved wherein the complainant was ordered to
institute her proceedings in the District Labour Court which she duly
did.



7. That the learned chairperson
erred in the law and/or on the facts by granting an order for costs
without at all exercising the discretion as envisaged by section 24
of the Labour Act, alternatively that there were insufficient grounds
to grant a cost order against the respondent.”







[4] The crucial issue in this appeal
is that the chairperson of the District Labour Court held that the
complaint should not have been founded on the provisions of section
46 of the Labour Act, no. 6 of 1992 (the Act) and that the
complainant wrongly assumed that the provisions of section 50 falls
under section 46 by necessary implication.







[5] The relevant parts of section 45
and section 46 reads as follows:



S45:



45 (1)
For the purposes of of the provisions of section 46, but subject to
the provisions of subsection (2) –




  1. any employee dismissed, whether or
    not notice has been given in accordance with any provision of this
    Act or any term and condition of a contract of employment or of a
    collective agreement;



  2. any disciplinary action taken
    against any employee,




without a valid and fair reason and
not in compliance with a fair procedure, shall be regarded to have
been dismissed unfairly or to have been taken unfairly, as the case
may be.”







S46:



46 (1)
If, upon a complaint lodged in accordance with the provisions of Part
IV by an employee who has been dismissed from his or her employment
or against whom any disciplinary action has been taken, as the case
may be, a district labour court is satisfied that such employee has
been so dismissed unfairly or that such disciplinary action has been
so taken unfairly, the district labour court may –




  1. in the case of an employee who has
    been so dismissed, issue an order in terms of which such employer is
    ordered –





  1. to reinstate such employee in the
    position in which he or she would have been had he or she not been
    so dismissed.



  2. to re-employ such employee in work
    comparable to that to which he or she was engaged immediately before
    his or her dismissal from such date and on such condition of
    employment as may be specified in such order;



  3. to pay, whether or not such
    employee is re-instated or re-employed, to such employee an amount
    equal to any losses suffered by such employee in consequence of such
    dismissal or an amount which would have been paid to him or her had
    he or she not been so dismissed.





  1. in the case of an employee against
    whom disciplinary action has been so taken, issue an order in terms
    of which –





  1. such disciplinary action is set
    aside;



  2. any disciplinary penalty, if any,
    imposed upon such employee is replaced with any other penalty which
    the court may deem just and equitable;



  3. the matter is referred back to the
    employer to reconsider any disciplinary action or disciplinary
    penalty to be taken or imposed upon such employee in accordance with
    any guideline, if any, laid down by the court and specified in such
    order;





  1. make such other order as the
    circumstances may require.








(2) An order referred to in
subparagraph (i) or (ii) of paragraph (a) of subsection (1) may be
made subject to such conditions as the district labour court may deem
just and equitable in the circumstances and may include a condition
providing for the imposition of an appropriate disciplinary penalty.”







[6] In respect of jurisdiction of the
District Labour Court the appellant relies on the provisions of
section 19 (1) (a) of the Act, which states as follows:



19(1) A
district labour court shall have jurisdiction –




  1. to hear all complaints launched
    with such District Labour Court by an employee or an employer
    (hereinafter referred to as the complainant) against an employer or
    employee (hereinafter referred to as respondent) for an alleged
    contravention of, or alleged failure to comply with, any provision
    of this Act or any term of condition of a contract of employment or
    a collective
    agreement.”




According to the appellant this
provision provides comprehensive jurisdiction in terms of the Act to
the District Labour Court, with specific reference to section 50 of
the Act. Under the heading “Collective termination of
contracts of employment
” section 50 of the Act provides as
follows:



50. (1)
Any employer who intends to terminate any or all of the contracts of
employment of his or her employees on account of the re-organization
or transfer of the business carried on by such employer or to
discontinue or reduce such business for economic or technological
reasons, such employer shall –




  1. Inform –





  1. the registered trade union
    recognized by him or her as an exclusive bargaining agent in respect
    of such employees; or



  2. if no such trade union exists, the
    workplace union representative elected in terms of section 65,




on a date not later than four weeks
before such contracts of employment are so terminated or such other
period as may in the circumstances be practicable, of his or her
intentions, the reasons therefore, the number and categories of
employees to be affected by such intended termination and the date on
which or the period over which such terminations are to be carried
out;




  1. afford such trade union, workplace
    union representative or the employees concerned an opportunity to
    negotiate on behalf of such employees the conditions on which, and
    the circumstances under which such terminations ought to take place
    with a view to minimizing or averting any adverse effects on such
    employees;



  2. notify the Commissioner in writing
    of his or her intentions and the reasons therefore, the number and
    categories of employees to be affected by such intended termination
    and the date on which or the period over which such terminations are
    to be carried out.




(2) Any employer who contravenes or
fails to comply with the provisions of subsection (1) shall be guilty
of an offence and on conviction be liable to a fine not exceeding
R4000 or to imprisonment for a period not exceeding 12 months or to
both such fine and such imprisonment.”







[7] The appellant submitted that it is
common cause that the employment relationship between the appellant
and the respondent had been terminated in terms of section 50 and
that constituted her cause of action. In terms of section 19(1)(b) of
the Act the court was therefore empowered to make any order in
respect of the respondent or the complainant which it is entitled to
make in terms of the provisions of the Act. The appellant also
submitted that the chairman of the District Labour Court erred by
concluding that the relief so sought constitutes a remedy in terms of
which a criminal conviction was sought. The appellant submitted that
the complainant never sought a criminal conviction of the respondent
and thereby causing the District Labour Court to become a criminal
court. Furthermore, it was submitted that in addition to the powers
conferred upon the District Labour Court, it is also empowered by
provisions of section 46 to deal with such matters as a dismissal of
an employee, even when section 50 is applicable. In this regard it is
submitted that the retrenchment of an employee in terms of section 50
of the Act constitutes a dismissal as contemplated in the Act. In
this regard the appellant relies on the work of PAK Le
Roux, Van Niekerk – The South African Law of Unfair Dismissa
l
to the effect that where termination of employment is based on a
reorganization of the business of the employer in terms of section 50
of the Act, a form of dismissal is contemplated and therefore the
provisions of section 46 also applies in such circumstances.
Reference was also made in this regard to the case of Namibia
Development Corporation v Visagie
NLLP 1998 (1) 124 NHC. Based on
this the appellant submitted that it is a logical consequence that
when an employee is retrenched and the employer fails to comply with
the provisions of the section, the retrenchment would also be
considered as unfair and unlawful. In this regard the appellant
contended that the chairman of the District Labour Court erred in law
by deciding that it did not have the required jurisdiction to
entertain this matter.







[8] Mr Mouton, on behalf of the
respondent, pointed out that the appellant in her particulars of
complaint or in form 2 never mentioned any “unfair dismissal”
or placed any reliance upon the provision of section 45 and 46 of the
Act relating to unfair dismissal in terms whereof reinstatement and
compensation can be ordered. He contended that the appellant’s
submissions are untenable, because section 50 contains its own
sanction which is applicable for non-compliance with the provisions
of that section and consequently the appellant has not revealed a
cause of action. It is further submitted on behalf of the respondent
that the appellant never made any reference in her particulars of
complaint to any method of dismissal or a disciplinary hearing, which
Mr Mouton submits are the only causes provided for section 45.
Consequently, a retrenchment in terms of section 50 does not comply
with the provisions of section 45. In this regard reference was made
to case of Numsa v Atlanta’s Diesel Engines (Pty) Ltd
1993 (14 ILT 642) (LAC) at 651D and the South African Law of
Unfair Dismissal
, supra at p253. It is contended by the
respondent that because the appellant relies exclusively upon the
provisions of section 50 of the Act for the non-compliance with the
provisions of that section for her complaint, the only sanction in
terms of section 50 is a criminal sanction and the District Labour
Court has no jurisdiction in that regard. Reference was made to the
case of HS Contractors v Valinga NLLP 2002 (2) 138 NLC. During
the submissions made in this court, it appeared to me that Mr Mouton
considered that in certain circumstances an unfair dismissal in terms
of section 45 on basis of non-compliance with section 50 may amount
to an unfair dismissal, but he submitted that was not the appellant’s
case in the District Labour Court and was not pleaded as such. In
that regard, if I understand it correctly, Mr Strydom submitted that
although it was not directly referred to in those words in the
particulars of complaint, the appellant’s claim was for
re-instatement which brings her complaint within the purview of
section 45. Mr Strydom submitted that it is indicated that by the
wording of the amended reply of respondent indicates that this is how
the respondent understood it.







[9] There was apparently a first point
in limine relating to “prescription” of the
appellant’s claim. This issue was not considered by the
Chairman of the District Labour Court at all. It is not a ground of
appeal and save for mentioning this preliminary point in heads of
argument, no further submissions were made in that regard at the
hearing of the appeal. I do not find it necessary to deal with it. In
this judgment I shall concentrate on the critical issue that forms
the basis of the appeal, namely whether the termination of the
appellant’s employment with the respondent in terms of section
50 of the Act can be considered as an unfair dismissal within the
purview of the provisions of section 45 of the Act, whereby she might
have been entitled to re-instatement in her position of manager:
corporate communications with the respondent. It is consequently not
necessary to deal with each and every ground of appeal.







[10] It is evident from the
particulars of complaint attached to form 2 in respect of the
appellant’s complaint that she relied on a contravention of
section 50 of the Act. In this regard the following paragraphs of the
particulars of complaint are relevant:



13.
Respondent is in breach of the provision of section 50 of the Labour
Act that:



13.1 The recognised and registered
trade union was not informed of



13.3 No negotiation process ensued
as is required by the act.



14. In the premises, the respondent
has breach the provisions of section 50 of the act and is in addition
guilty of statutory offence set out in sub-section (2) of the said
section.



Where for complainant claims
from the respondent




  1. Re-instatement to her position of
    as manager: corporate communications of respondent.



  2. Loss of income



  3. Further and/or alternative
    relief.”




Upon my enquiry it was confirmed that
there was paragraph 13.2 and the above quoted 13.3 should actually be
13.2.



In terms of form 2 the nature of the
complaint is referred to as “retrenchment” and the cause
as:



1.
Respondent has failed, refused and/or omitted to pay.”



The relief sought by her is mentioned
in the following words:



1.
Re-instatement, loss of income, benefits, leave days at the time of
complainant’s dismissal.”







[11] The respondent replied as follows
to this complaint:



Kindly
take notice

that
the respondent intends to oppose the complaint and replies as follows
thereto:




  1. Respondent pleads that the
    complaint has become prescribed and that it has not been launched
    within the one year period prescribed by the Labour Act, act 6 of
    1992, and that no prior condonation for the late launching for the
    complaint has been obtained.



  2. Respondent denies having breached
    the provisions of section 50 of act 6 of 1992 and/or having
    terminated complainant’s services unlawfully and/or not in
    accordance with the said section.




Therefore respondent prays that the
complainant’s complaint be dismissed.”







[12] The respondent amended its reply
as follows:



1. By
renumbering the existing paragraph 2 to paragraph 3, and by inserting
a paragraph to the following:



2.
Complainant’s particulars of complaint do not disclose a cause
of action for respondent to answer and reply to.

Complainant
alleges a breach of section 50 of the Labour Act, act no. 6 of 1992,
but fails to allege or bring her complaint into the provisions of
section 46 of the act (no unfair dismissal has been alleged), or
section 53 of the act. For this reason alone, complainant’s
complaint should be dismissed with costs.”



2.1 By inserting a new paragraph 4
which reads as follows:



4.
Respondent, in amplification of the denial contained in paragraph 3
supra:



4.1 denies that complainant was
a member of a trade union, or that a trade union is in law required
to be consulted when a management position is made redundant;



4.2 denies that no negotiations
took place as are required by the Labour Act prior to the
retrenchment occurring;



4.3 denies that it is guilty of
the statutory offenses set out in section 50(2) of the Labour Act;



4.4 denies the despite written
communications and consultations between the legal practitioners, no
steps were taken to resolve the dispute alleged by respondent between
the parties.”







[13] In his ruling the Chairman of the
District Labour Court concluded as follows:



In this
case the complainant was informed about the redundant (sic) of the
post she had with the respondent and thereafter a note of
retrenchment followed. Therefore the complainant in this matter was
suppose to bring up a complaint in terms of section 46 as a
representative explained to the court, unfair dismissal which
includes retrenchment. In conclusion the point in lamina (sic)
brought up by the respondent succeeds and the complaint of the
complainant is dismissed without cost.”







[14] In the case of Du Toit v The
Office of the Prime Minister
NLLP 1998 (1) 54 NLC O’Linn J
comprehensively dealt with the effect of provisions like sections 45
and 46, as well as section 50. In that case the learned Judge pointed
out the differences that exist between South African Labour
legislation and the Namibian Labour legislation as contained in the
Namibian Labour Act. In respect of what is considered to be “unfair
labour practice”, the Labour Relations Act of 1956 of South
Africa included a definition in that regard whilst there is no
similar definition in the Namibian Labour Act. The learned Judge
warned against reliance on the South African Act per se. He
said the following in this regard at p66:



At most
one can say that certain elements of the concept of “unfair
labour practice” can be recognised in section 45 and 46 of the
Namibian Labour Act. Although the said definition distinguishes
between “dismissal by reason of any disciplinary action”
and “termination of the employment of an employee on grounds
other than disciplinary action”, both are lumped together in
the same definition. This is fundamentally different to the Namibian
Labour Act where “dismissal” and “disciplinary
action” on the one hand are provided for in separate and
distinct sections and the provisions for termination by notice
provided for in separate and distinct sections.”



Termination
by notice” is provided for specifically in the Namibian Labour
Act whereas in the South African Act it is only dealt with in the
“unfair labour practice” definition under the paragraph
dealing with termination on grounds other than disciplinary action.
Termination by notice is only excluded from the definition in
extremely limited situations where various other specific
requirements are made.



It should also be noted that where
as the “collective termination” of employment as provided
for in section 50 of the Namibian Act, independently of the unfair
dismissals provisions of sections 45 and 46, in the South African Act
it is dealt with in the definition of “unfair labour practice”
as an exception when certain requirements, equivalent to those in our
section 50, are complied with.



The conclusion is inescapable that
the Namibian Legislature has deliberately chosen to follow the
earliers of South African legislation.



When considering the applicability
in Namibia of decisions of South African courts and the comments of
writers on the South African legislation, the importance, and
sometimes fundamental differences between the respective legislation
must be kept in mind.”







Reference was also made by the learned
Judge to the case of Minister of Health and Social Services v
Vlasiu
, NLLP 1998 (1) 35 NLC.”







[15] O’Linn J then dealt in the
Du Toit decision with the provisions of sections 45, 46, 47
and 50, respectively. The learned Judge carefully and comprehensively
considered all the arguments in respect of dismissal or termination
of an employee and the applicability of sections 45 and 46 with
regard to the termination of an employee under section 50. In this
regard he approved of the submissions by Mr Coleman to the effect
that section 45 and 46 deal with dismissals without a valid and fair
reason and section 47 with termination of contracts, while section 50
deals with collective termination of contracts in respect of the
retrenchment of employees. With regard to these submissions O’Linn
J said the following at p74:



There is
considerable substance in the latter submission. The word “dismissal”
is used in section 45 in conjunction with the words “any
disciplinary action” and there is much to be said for the view
that these expressions were intended to and in fact relate to the
same genus particularly when these provisions are seen in context of
the distinct provisions of sections 47 to 53.”







The learned Judge then concluded on
p81 as follows:



I also
have no doubt that sections 45 and 46 are not applicable to contracts
terminated in accordance with the provisions of sections 48 and 50.”







This is also the case where
termination takes place in accordance with the provisions of section
50, dealing with the collective termination of the contracts of the
employment.”







[16] In Goagoseb v Araechenab
Fishing and Development Company (Pty) Ltd
NLLP 1998 142 NLC
Strydom JP (as he then was) held that section 50 also applies in
circumstances where the services of only one employee is terminated,
although that section is referred to as ‘collective
termination”.







[17] Although the procedure in respect
of labour matters is much more flexible than those in magistrates or
high courts and pleadings are not required, the appellant did file a
comprehensive pleading, named “Particulars of complaint”,
to which the respondent replied and later amended its reply. As
referred to earlier and quoted in detail, the appellant clearly based
its case and its cause of action on non-compliance with section 50 of
the Act. It was argued that although this was the case, the appellant
did claim re-instatement, which is a sanction provided for in section
45 of the Act and consequently the appellant’s claim, if I
understand this submission correctly, should be regarded as one
arising from circumstances provided for in section 50, but which
actually falls under section 45 based on an “unfair labour
practice”. It is further submitted on behalf of the appellant
that this is also how the respondent understood it when its reply and
amended reply are considered.







[18] I do not agree with the
submissions on behalf of the appellant. The appellant’s claim,
as set out in form 2, referred to above, as well as her particulars
of complaint clearly brings her cause of action under the purview of
section 50 and nothing more. Although reference has been made to
other cases, they are either not applicable or distinguishable or do
not take the real issue much further. As decided by O’Linn J in
the Du Toit case, supra, a claim under section 50 cannot be
considered as one that falls under sections 45 and 46. However it
might have been regarded by the respondent which it pleaded, is
immaterial. It is the claimant who must set out his or her claim and
in the manner that she did in this matter, no claim under sections 45
and 46 was lodged. In this regard the essence of the decision of the
arbitrator on this preliminary point is in my opinion correct and
therefore the appeal must fail.







[18] In the result, the appeal is
dismissed.



















____________



MULLER, J.





















ON
BEHALF OF THE APPLICANT: MR. STRYDOM











INSTRUCTED BY: NEVES LEGAL
PRACTITIONERS














ON BEHALF OF THE RESPONDENT: MR.
MOUTON











INSTRUCTED BY: KOEP & PARTNERS