- April 27, 2023
- |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 In this hearing, the respondent was charged with six (6) counts of misconduct – two (2) counts were withdrawn, and he was acquitted and discharged on one count but found guilty of three (3) counts of dishonesty.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 court observed that it was after considering the evidence led by the parties at arbitration, that the respondent was guilty of dishonesty which is a serious offence that ordinarily ruptures the employment relationship.
‘[58] The leading case on the proper approach to a case where there are disputes of fact, with disparate versions being adduced before the court or tribunal, is the locus classicus judgment of Nienaber JA in Stellenbosch Farmers’ Winery Group Ltd v Martell et Cie and Others 2003 (1) SA (SCA) p 14H-15E. This judgment has been quoted with approval in this jurisdiction in a number of cases, including the Supreme Court in Life Office of Namibia Ltd (Namlife) v Amakali and Another (LCA 78/2013) [2014] NALCMD 17 (17 April 2014 and in that regard, accurately records the law in Namibia.
[59] Nienaber JA stated as follows, regarding the proper approach to the resolution of disputes of fact:
‘On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So, too, on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by our courts in resolving disputes of this nature may conveniently be summarised as follows: To come to a conclusion on the disputed issues, a Court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the Court’s finding on the credibility of a particular witness will depend on its impression of the veracity of the witness. That, in turn, will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was placed or put on his behalf, or with established fact or with extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a)(ii), (iv), and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity, and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b), and (c), the Court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a Court’s credibility findings compel it in one direction and its evaluation of the probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised, probabilities prevail.’
[60] It is thus clear that the assessment of the credibility of the witnesses and a proper weighing of the probabilities is an exercise that cannot be avoided if the court or tribunal is to make findings as to who to believe in respect of irreconcilable disputes of fact. In this regard, the trier of fact, cannot depend on a ‘hunch’ or ‘gut feeling’. There has to be a methodological and explained reason why he or she believes one witness and not another.’
‘[68] … I am of the considered view that the arbitrator committed a serious misdirection when he found that the appellant had failed to show on the probabilities that there was a fair reason to dismiss the respondent. There was, if anything, ample evidence for that finding, as the appellant proved that the respondent had committed two serious cases of dishonesty. These misdirections by the arbitrator, in my considered view, fall within the ambit of questions of law in line with Janse van Rensburg v Wilderness Air Namibia (Pty) Ltd 2016 (2) NR 554 (SC).’
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.’
It was held, therefore, that:
a) ‘That the onus is on the employer to show that the dismissal was procedurally and substantively fair.
b) The arbitrator did not properly weigh the irreconcilable versions presented to him in order to make findings of facts based on the evidence and the quality thereof. A trier of fact cannot make credible findings on a ‘hunch’ or on a ‘gut feeling’.
c) Where a party fails to put its case to the opposing witnesses and adduces evidence in chief for the first time, the court is entitled to regard the new evidence as an afterthought and may disregard it.
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.