- April 27, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR), Labour Law
The respondent was employed by the appellant as a sales executive from 5 March 2015 however, he was dismissed by the appellant on 23 June 2020. Before the dismissal was effected, the respondent was subjected to a disciplinary hearing within which he was charged with disobeying his superior’s instruction not to order and install a cruise control device in a demonstrator motor vehicle. However, this hearing was inconclusive and does not have a bearing on the present matter. Another disciplinary hearing was scheduled on 14 May 2020. In this hearing, the respondent was charged with six (6) counts of misconduct – two (2) counts were withdrawn, and he was acquitted and discharged on one count but found guilty of three (3) counts of dishonesty. He was found guilty of these counts therefore; he was dismissed on 23 June 2020.
According to the arbitration award issued by the arbitrator, Mr. Sasele on 17 September 2021, the respondent (Mr. Hilarius Iipinge) was to be reinstated to his position and paid N$113 400 with interest, following the arbitrator’s decision that he was unfairly dismissed by the appellant. The remit of the court was to determine whether the appellant’s appeal should be sustained; whether the appellant’s contention that the award was fraught with insurmountable legal hurdles and must be set aside, was correct.
MASUKU J considered the above facts and stated the following:
The allegations of bias
The respondent raised a complaint that the Chairperson of the disciplinary committee was biased. MASUKU J pointed out that he did not agree with the evidence of the appellant’s witnesses during arbitration and that the applications for recusal must be moved on the first day. Recusation applications are not to be moved for the sake of it. On the contrary, there was no need to raise the issue of the recusal at the commencement of the proceedings therefore, recusal applications can be moved at any time whenever there is a reasonable apprehension of the bias.
‘[70] As stated Cupido v Edgars Stores Namibia Ltd (HC-MD-LA-APP-AAA 5 of 2017 [2018] NALCMD 25 (3 October 2018), para 20 ‘… apprehension of bias may arise either from the association or interest the judicial officer has in one of the litigants before the court or from the interest that the judicial officer has in the outcome of the case. Or it may arise from the conduct or utterances by the judicial officer prior to or during proceedings. In all these situations, the judicial officer must recuse him or herself.’
Examples that give rise to reasonable apprehension of bias are where the presiding officer was involved in the incident giving rise to the charge in question; where he/she is involved in the investigation; where there is a prior issue of bad blood between the employee and the chairperson; prior personal remarks by the chairperson; prior discussion about the case; direct involvement in the events leading to the case; a direct interest in the matter or influence by others.
‘[72] In the instant case, the complaint is that the chairperson of the disciplinary committee did not recuse herself when moved to do so. She was accused of allowing certain evidence to be led improperly and not allowing the respondent sufficient time to consider certain documents that were handed in by the appellant. The evidence adduced by the appellant was that the respondent was given all the documents relevant to the hearing. This was confirmed by the respondent in cross-examination.
[73] The respondent, for the first time, raised a new ground for recusal, before the arbitrator. He claimed that the chairperson was an employee of an outfit called Labour Dynamics CC, which was on a retainer from the appellant. I am of the considered view that ordinarily, the inclusion of an outsider from the employer to chair disciplinary proceedings, is an acceptable and fairer procedure to follow.
[74] I say this because where the chairperson is an employee of the company initiating disciplinary proceedings, it may be that the relationship between the chairperson and the employer may raise suspicions. In any event, I am of the considered view that in the instant case, there was no evidence led by the respondent that could evince a reasonable apprehension of bias. In this connection, Grogan states that ‘Some employers though not required by law to do so, hire outsiders to hear controversial disciplinary matters, thereby highlighting the importance of the requirements of impartiality.’
[75] I have considered the judgment of Sibeya J in Conrad v Auto Repairs (HC-MD-LAB-MOT-GEN-2020/00319) [2022] NALCMD 25 (26 April 2022). In that case, the recusal of the chairperson was raised during the hearing as it was alleged that he belonged to Labour Dynamics. This, he denied he was connected to the said outfit, and it later turned out that he had lied in what he had disclosed to the employee’s representative. He alleged untruthfully, the court found, that he was an independent contractor when he still had a controlling interest in Labour Dynamics. He had been previously warned by Ueitele J in a previous judgment, but this fell on deaf ears. The facts are distinguishable in this matter as there was no basis for finding a disqualifying bias because there was no evidence that the chairperson had participated in any manner in the disciplinary process of the respondent, other than serving as the chairperson.
[76] In the event that I am found to be incorrect on the issue of the bias alleged, which is referred to numerous times on the record as ‘biasness’, a word unknown to the English language, I am of the considered view that the Kamanya principle, should carry the day – Kamanya and Others v Kuiseb Fish Products Ltd 1996 NR (LC) at 127I-128C. In that case, the applicable law was adumbrated as follows by O’Linn P:
‘The result in my view is that no order for reinstatement, re-employment, or compensation should be made by the District Labour Court against the employer where the employer has succeeded in proving before it a fair reason for dismissal, whether or not such employer has proved that a fair procedure was applied before the domestic tribunal. In such a case, it would be open to the District Labour Court to find that the employee has not been “dismissed unfairly.”
In the alternative, if I am wrong in the view stated above, then in a case where the employer has proved a fair reason for dismissal but has failed to prove a fair procedure, the District Labour Court would be entitled in accordance with s 46(1)(c), not to grant any remedies provided for in s 46(1)(a) and (b), but to confirm the dismissal or to decline to make any order.’
[77] This position was confirmed by the Supreme Court in Kahoro and Another v Namibia Breweries Ltd 2008 (1) NR 382 (SC) at 394 para 40. There, the Supreme Court expressed itself as follows in endorsing the Kamanya principle:
‘As I understand the position, Kamanya is the authority for the proposition that even if an employer fails to prove that a fair procedure was followed leading to the dismissal, the court may (not must) refuse to hold a dismissal as unfair if the employer proves a valid and fair reason for such dismissal.’
[78] The upshot of this is that in a case where there may be doubt or evidence that the dismissal did not follow a fair procedure, the court may, notwithstanding, hold a dismissal to be in order if there is a fair and valid reason for the dismissal. I am of the considered view that the two charges of dishonesty prove that there was a fair and valid reason to dismiss the respondent in the instant case.
[9] Having said this, I must place a caveat, namely, that the above finding, in the instant case, will apply if the court agrees with the appellant that the departure from the disciplinary code was justified in casu. It is to that very issue that I turn presently.’
Conclusion
[90] In the premises, I am of the considered view that the appellant has satisfied the court that this is a case in which the arbitrator committed serious errors of law that serve to vitiate the arbitral award. I find it unnecessary, in the circumstances, to consider the other grounds and bases on which the award is attacked, including the absence of evidence on the amount of compensation awarded. I am of the considered opinion that the appeal must be upheld.’
Held that:
a) For a case of recusal to be upheld, it must be shown that there is a reasonable apprehension of bias arising from the chairperson of the disciplinary tribunal having an association or interest in one of the litigants before him or her or from the outcome of the case. Alternatively, it must be shown that he or she has conducted himself or herself or made utterances prior to or during the proceedings which point to the fact that he or she must recuse him or herself.’
The appellant in the present matter, satisfied the court that the arbitrator committed serious errors of law that serve to vitiate the arbitral award. As a result, the appellant’s appeal succeeded, with no order as to costs.