Court name
Labour Court
Case number
4 of 2011
Title

Standard Bank Namibia v Mouton (4 of 2011) [2011] NALC 21 (29 July 2011);

Media neutral citation
[2011] NALC 21
Coram
Hoff J













CASE
NO. LCA 04/2011


NOT
REPORTABLE








IN
THE LABOUR COURT OF NAMIBIA








In
the matter between:











STANDARD
BANK NAMIBIA
…............................................................APPELLANT








and








ROMEO
MOUTON
…........................................................................RESPONDENT














CORAM:
HOFF, J











Heard
on: 29 July 2011








Delivered
on: 29 July 2011 (Ex tempore)














LABOUR
JUDGMENT











HOFF,
J
: [1] This is an appeal against the entire ruling
made by an arbitrator on the 20th of December 2010 in
respect of an application for the rescission of and an award made in
favour of the respondent, on 28thof September 2010.







[2]
It is common cause that the respondent worked for the appellant as a
teller. On 26th May 2009, the respondent appeared in a
disciplinary hearing charged inter alia with dishonest conduct
in falsifying bank records in order to hide an apparent deficiency of
nine thousand and forty eight Namibian Dollars and forty six cents
(N$9 048.46) in his cash holdings.







[3]
The respondent was found guilty of dishonesty on the same day and he
was subsequently dismissed. Although he was informed in a letter
dated 18th June 2009, of his termination of service and
that he has a right to lodge an appeal against his dismissal,
respondent elected not to lodge such an appeal.







[4]
On the 4th of August 2010, the respondent referred the
dispute to the office of the Labour Commissioner in terms of the
provisions of Section 82 (7)(a) of the Labour Act 11 of 2007. The
matter was set down for 3rd September 2010 before an
arbitrator. Mr August Maletzky who appeared on behalf of the
respondent addressed the arbitrator and inter alia stated that
the appellant without reason or justification, chose not to entertain
the respondent’s case at the disciplinary hearing and that this
prompted the respondent to refer the matter to the Labour
Commissioner in order to ask for reinstatement in his previous
position as well as compensation for loss of income.







[5]
The arbitrator thereafter made a reward on 28th of
September 2010. On the 14th of October 2010, the appellant
gave notice of intention to apply for rescission of the arbitrator’s
reward given in favor of the respondent. On 20th December
2010 the arbitrator dismissed the rescission application.







[6]
Mr Philander now appears on behalf of the appellant and the
respondent Mr Romeo Mouton appears in person. It was submitted by Mr
Philander that having regard to the date of the dismissal as well as
a date when the matter was referred to the Labour Commissioner, that
the referral was out of time and that the referral has in fact
prescribed.







[7]
Section 86(2) of Act 11 of 2007 provides that a party may refer a
dispute in terms of sub-section (1) within 6 months after the date of
dismissal, if the dispute concerns a dismissal. Now in the present
appeal, the dispute indeed concerns a dismissal.







[8]
In terms of the provisions of section 88 of the Labour Act:







An
arbitrator who has made an award in terms of Section 86(15) may vary
or rescind the award
inter
alia

on the application of any party made within 30 days after the service
of the award if –








  1. It was
    erroneously sought or erroneously made in the absence of any party
    affected by that award.”








[9]
I am of the view that having regard to the fact that the dispute was
referred to the Labour Commissioner, after the expiration of 6
months, this referral to the Labour Commissioner was out of time and
has in fact prescribed in terms of Section 86(2) and that when the
respondent so sought an award to be made by the Labour Commissioner,
it was sought erroneously and the Labour Commissioner also
erroneously made such kind of award since in terms of the provisions
of Section 86(2), the Labour Commissioner had no jurisdiction, he
acted ultra vires.







[10]
As a result, the appeal succeeds and the Court makes the following
order:







The
ruling of the arbitrator dated 20th December 2010 as well
as the award dated 28th September 2010 are hereby set
aside.



























__________



HOFF,
J







































































ON
BEHALF OF THE APPELLANT: MR PHILANDER











Instructed
by: LORENTZ ANGULA INC.















ON
BEHALF OF THE RESPONDENT IN PRSON










Instructed
by: