Court name
Labour Court
Case number
42 of 2010
Case name
Standard Bank Namibia v Grace and Another
Media neutral citation
[2011] NALC 22
Judge
Muller J














11












CASE NO.: LCA 42/2010



IN THE LABOUR COURT OF
NAMIBIA











In the matter between:











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











and











FRANCOIS CHARLES GRACE
…....................................................FIRST
RESPONDENT



B.M. SHINGUADJA N.O.
…..........................................................SECOND
RESPONDENT















CORAM: MULLER J











Heard on: 22 July 2011



Delivered on: 12 August 2011















APPEAL JUDGMENT







MULLER, J.: [1] The
appellant appealed against the arbitrators’ award granted on 29
April 2010. The appeal was struck from the roll of this court on 5
November 2010 because the notice of appeal was defective. There were
also no grounds of opposition to the appeal filed. Subsequently, the
appellant filed an amended notice of appeal and the respondent a
statement of its grounds of opposition in terms of Rule 17(16)(b).
Condonation was sought in this court at the commencement of the
appeal hearing by the appellant for the late filing of the amended
notice of appeal, which application was not opposed and he court
granted the requested condonation.







[2] When the appeal was heard, Mr
Coleman appeared for the appellant and submitted supplementary heads
of argument, while the respondent’s legal representative, Mr
Tjitemisa, also filed supplementary heads of argument. Originally
heads of argument were filed on behalf of the appellant and the
respondent before the first hearing in November 2010. The basis on
which Mr. Coleman decided to argue the appeal differed substantially
from that of his predecessor and, although the original submissions
were not entirely abandoned, his supplementary heads contained his
new submissions. In supplementary heads Mr Tjitemisa dealt briefly
with Mr Coleman’s new contentions. Both counsel amplified their
written arguments with oral submissions.







[3] It is necessary to refer briefly
to the background facts that led to the complainant’s
(respondent’s) claim against his employer (the appellant),
which facts are mainly undisputed:




  • The complainant (respondent) was
    employed at the appellant’s Ausspanplatz branch as head:
    service support since August 2005, after having worked at several
    other branches of the appellant since 20 December 1982;



  • In August 2005 the particular post at
    Ausspanplatz branch was graded as SBG 11, while the respondent’s
    personal grade was SBG10, which is on a supervisory level;



  • The manager at Ausspanplatz branch at
    the time was Mr Jimmy Uys and he was succeeded by Mr Alois Garoeb;



  • The respondent endeavoured to be
    upgraded to SBG 11;



  • An SBG 11 grading is on a managerial
    level and the incumbent is entitled to a higher salary and an
    incentive bonus, while at a SBG 10 grading the incumbent receives a
    salary and an annual bonus;



  • Mr Bethuel Tjirera was the regional
    manager and Mr Mike Beaurain the head personal and business banking;



  • The line of responsibilities was from
    the branch manager (Mr Uys/Mr Garoeb) to the regional manager (Mr
    Tjirera) to the head: personal and business banking (Mr Mike
    Beaurain) and, if necessary, to the Managing Director;



  • Recommendations are made in respect
    of i.e. promotions along this line until it is finally decided and
    signed off.



  • Mr Uys, the respondent’s branch
    manager at the time, recommended on 9 October 2008 that he be
    promoted to grade SBG 11, but it was unsuccessful;



  • The respondent’s continued
    grievances of not being promoted, although he acted in the
    particular post, were often discussed, but although the post was
    upgraded to SBG 11, he was never formally promoted;



  • A forensic audit was conducted at the
    Ausspanplatz branch and Mr Mike Beaurain held the respondent
    responsible for several shortcomings at the branch;



  • In March 2009 the respondent was
    transferred to the Home Loan department of the appellant and in the
    letter of transfer Mr Beaurain made certain allegations regarding
    the respondent’s ability and conduct;



  • The respondent filed what is known as
    a grievance procedure and a meeting was held with Mr Beaurain and
    others in that regard;



  • On 16 November 2009 the respondent
    filed a claim with the Labour Commissioner for “unilateral
    change of terms”
    , “unfair discrimination
    and “unfair labour practice”;



  • Arbitration proceedings were held on
    23 February and 30 March 2010;



  • On 29 April 2010 the arbitrator made
    his award in favour of the respondent.



  • The appellant appealed against this
    award.








[4] In the appellant’s original
heads of argument it was submitted that the respondent’s
approach was based on a fundamental flaw, namely, that the upgrading
of a position, in this case to SBG 11, automatically resulted in the
promotion of the incumbent in that post to the same grade. It was
further submitted that the respondent (as claimant) premised his
alleged promotion to the SBG 11 level on a promise in that regard by
the regional manager, Mr Tjirera, and that the arbitrator made his
award on that basis. During the hearing of the appeal, Mr Tjitemisa
confirmed that it is accepted by the respondent that the upgrading of
the position to SBG 11 is not in dispute. Although Mr Coleman, as
mentioned before, approached the appeal on another basis as set out
in his supplementary heads, with which shall deal hereunder, I
understand Mr Tjitemisa to still rely on the abovementioned premise,
namely that the respondent had in fact been promoted to the SBG 11
level and that the arbitrator made the correct decision in his award
in this regard. Mr Tjitemisa also differed from the submission that
the arbitrator usurped the appellant’s function by promoting
the respondent in his award. Mr Tjitemisa further disagreed with the
submissions made by Mr Coleman in the appellant’s supplementary
heads and oral submissions in this count.







Promotion



[5] As mentioned before it is common
cause that the post occupied by the respondent was upgraded on 6
October 2008.







[6] It is further not in dispute that
the respondent applied for a promotion to the same level as the post
he occupied. Exhibit 3 was completed and his promotion in that regard
was recommended by his branch manager at the time, Mr Jimmy Uys. The
promotion was further recommended by Mr Tjirera the Regional manager,
but not approved by Mr Beaurain. In his evidence the respondent
testified before the arbitrator that Mr Tjirera promised him the
promotion, which the latter denied. Mr Uys confirmed the
recommendation for promotion and testified that when a post is
upgraded the incumbent in that post is automatically promoted to the
same grade as the post. The submission is that because the respondent
was the incumbent in that post for more than 3 years before it was
upgraded, he was thus personally also upgraded when the post was
upgraded. Mr Tjrera relied on Exhibit 3, the recommendation for
promotion in support of his submission. From the evidence of Mr
Garoeb, who succeeded Mr Uys as the respondent’s branch
manager, it also appears that in his opinion it was unfair towards
the respondent to refuse his promotion.







[7] I find the submission that the
incumbent in a post which is upgraded, is automatically promoted and
personally upgraded to the same level, difficult to understand while
there is a specific procedure of recommendations along the line. In
particular, in this instance I fail to see the sense in using that
procedure if the respondent is entitled to be automatically promoted
when the post which he occupies, is upgraded. The fact that his
branch manager used form Exhibit 3 to recommend his promotion, is an
indication to the contrary. The allegation that he was promised
promotion by Mr Tjirera (which he denied) also militates against the
submission of an automatic promotion.







[8] Finally in respect of the
promotion-argument, is it evidend that the promotion by the procedure
adopted, was never granted. Even if the respondent had been promised
a promotion and recommendations followed, the responsible person to
grant it, never promoted him. Exhibit 3 shows it was not signed off
or approved.







[9] The arbitrator made an order in
this regard in the following words: (unedited)







That the
respondent,
Standard
Bank of Namibia Limited

did practice an unfair labour practice and unfair discrimination
against the applicant
Mr
Francois Charles Grace
,
as the respondent it is hereby order to appoint/confirm the applicant
in the post of SBG 11 with effect from 6
th
October 2008. The appointment must go along
with
all the accompanying salary notches and benefits
.”







[10] Mr Coleman now submits in his
supplementary heads and in this court that the arbitrator, being a
creature of statute, derives his jurisdiction from the provisions of
the Labour Act, No. 11 of 2007 (the Labour Act) and consequently did
not have the jurisdiction to hear and adjudicate on a dispute
relating to promotion. The submission, as I understand it, therefore
is that on that ground alone the appeal must succeed. Mr Tjitemisa’s
counter argument in that regard is that this is a new point which was
not raised before the arbitrator and although the appeal against
respondents “promotion” is a ground of appeal in the
amended notice of appeal, it is a new point of law and cannot be
entertained now.







[11] I disagree with Mr Tjitemisa’s
submission that this point cannot be raised now. It is clearly a
legal point and goes to the root of the arbitrator’s
jurisdiction to hear and adjudicate an issue like promotion. I shall
consequently consider Mr Coleman’s argument and determine
whether it has any merit.







[12] Mr Coleman bases his submission
thereon that an issue such as promotion should be regarded on the
same footing as a employee’s housing subsidy, which is a
dispute of interest.
1In
S1, the definition section of the Labour Act, a dispute of interest
is defined as:







dispute
of interest” means any dispute concerning a proposal for new or
changed conditions of employment but does not include a dispute that
this Act or any other Act requires to be resolved by –








  1. adjudication in the labour court
    or other court of law; or









  1. arbitration.”








The submission is then that a
complaint regarding promotion is not a dispute that an arbitrator can
deal with. In this regard the court was referred to s 84 of the
Labour Act, which section defines what a dispute to be referred to
arbitration means and that clearly does not include the respondent’s
complaint with regard to promotion. Such a dispute (of interest) has
to be dealt with in terms of section 28 and not section 86 of the
Act, i.e. conciliation and not arbitration







[13] Mr Coleman contended further that
from the arbitrator’s award it is evident that the arbitrator
regarded the refusal of the respondent’s promotion as an unfair
labour practice, which falls under chapter 5 of the Act, but that
does not cover the respondent’s complaint. Consequently, it is
submitted that the arbitrator also contravened the applicable
provisions in the Labour Act in making that finding.







[14] The submissions advanced by Mr
Coleman in his supplementary heads and in this court were not dealt
with by Mr Tjitemisa, save that he argued that these submissions
should have been raised before the arbitrator and not for the first
time on appeal. As I understand it, the substance of Mr Tjitemisa’s
argument is that the issue is not necessary a refusal of promotion
should automatically follow if the post occupied by the complainant
is upgraded, but that the respondent was in the position when the
post was upgraded and his salary and benefits should be commensurate
to that upgraded position.







[15] Even the South African Labour
Court conceded that the CCMS did not have jurisdiction to arbitrate
on disputes regarding remuneration-related claims.
2In
Namibia it has been held that a court must be cautions not to place
too much reliance on South African decisions based on South African
Labour Law because the applicable Labour Acts differ.
3However,
the labour principles are mainly the same. An example in point
regarding the differences between the South African Labour Act and
that of Namibia is that the former contains a definition of “
unfair
labour practice”
and its Namibian equivalent not. When
the provisions regarding unfair labour practice in our Act are
considered, it is evident that the respondent’s complaint does
not resort thereunder and in particular not the arbitrator’s
decision that an unfair labour practice had been committed.







[16] The evidence regarding the
respondent’s alleged entitlement to be promoted does not
support this contention. Mr Tjirera denied that he promised him
promotion and it is clear that even if he did, he could only
recommend it. Thereafter it was out of his hands. Mr Uys apparently
believed that the respondent was entitled to automatic promotion when
the post was upgraded. This is not how I understood Mr Tjitemisa’s
submission. Be it as it may, the same Mr Uys followed the procedure
of recommendations up to the final decision-maker. On this evidence,
even if the arbitrator could arbitrate in respect of the promotion
issue, he could not have come to the conclusion that the respondent
was entitled to promotion.







[17] I am in agreement with Mr
Coleman’s submission that the promotion issue is a dispute of
interest and that the arbitrator did not have the jurisdiction to
deal with it. The argument advanced that because this contention had
not been raised at that junction, it cannot be submitted now on
appeal, is untenable. The appellant is entitled to raise any issue,
such as lack of jurisdiction on appeal. The provisions of the Labour
Act are clear and if the correct procedure was not followed at the
time, the appellant is not prevented to raise it now. In this
particular matter the parties were not represented by counsel as they
were in this appeal.







[18] On this point the appeal must
succeed.







Transfer







[19] Although the respondent’s
transfer to the Home Loans section of the appellant was also
extensively covered during the evidence, the appellant, as I
understand it, concedes that this issue does not form part of its
grounds of appeal. Mr Tjitemisa submitted that the respondents
complaint was in fact based on the promotion issue and if this court
decides that the appeal should fail in that regard, the assumption of
unfair legal practice in respect of the other issues, should also
fail. I agree that the promotion issue is in fact the crux of the
respondent’s complaint and the arguments in respect of an
unfair labour practice was based on that issue. The issue of the
respondent’s transfer, falling within the prerogative of the
employer, was only relied upon to indicate that the respondent
considered the treatment he received after not being promoted as an
unfair labour practice and discrimatory. That is borne out by Form LC
21. The respondent’s complaint could not be adjudicated by way
of arbitration.







[20] In the result the appeal succeeds
and the arbitrator’s award is set aside.



















____________



MULLER, J.






















































ON
BEHALF OF THE APPLICANT: MR. COLEMAN











INSTRUCTED BY: LORENTZ ANGULA INC.














ON BEHALF OF THE RESPONDENT: MR.
TJITEMISA











INSTRUCTED BY: TJITEMISA &
ASSOCIATES














1Smit
v Standard Bank of Namibia 1994 NR 366 (LC) at 372 F-G




2Lander
v Grobler Resorts Set (2000) 21 ILJ 1009 (CCMA)




3Du
Toit v The Office of the Prime Minister NLLP 1998 (1) SA NLC