LABOUR LAW – APPEAL AGAINST ARBITRATOR’S AWARD THAT DISMISSAL WAS PROCEDURALLY AND SUBSTANTIVELY FAIR – ARBITRATY AND PERVERSE DECISION

LABOUR LAW – APPEAL AGAINST ARBITRATOR’S AWARD THAT DISMISSAL WAS PROCEDURALLY AND SUBSTANTIVELY FAIR – ARBITRATY AND PERVERSE DECISION

 

The respondent was employed by the appellant as a farm manager. He was subjected to a disciplinary hearing, charged with eight charges inter alia gross insubordination, adopting an insolent attitude towards any superior/supervisor, giving false evidence or making a false statement, revealing of confidential information to unauthorized persons, unauthorized use and or abuse of telephones or internet facilities, fails or refuse to comply with any lawful instruction from employer, distribution of inappropriate, obscene or degrading publications, any conduct affecting the employer or employee relationship detrimentally. At the end of the disciplinary hearing, he was found guilty on two of the charges proffered and his dismissal was ordered. He appealed but did not receive any response.

 

The respondent then filed a labour dispute with the Office of the Labour Commissioner. At the end of the arbitration hearing, the arbitrator made an award, adverse to the appellant, concluding that the respondent’s dismissal was both procedurally and substantively unfair. This is an appeal against the arbitrator’s award.

 

On appeal, CHRISTIAAN AJ restated the principles in Mashale Paulus Malapane v The State Case No. CA 58/2001 (HC); and Kamaya & Others v Kuiseb Fish Products 1996 NR 123; and Janse van Rensburg v Wilderness Air Namibia (Pty) Ltd 2016 (2) NR 554 (SC), consequently uphold the appeal, and held that:

 

1. In labour law at arbitration proceedings evidence which is relevant includes evidence of the findings of internal proceedings and appeal disciplinary hearings which appear on the records of those hearings and which form part of the record before the arbitrator.
2. Held further, that arbitrator is not entitled to disregard such findings of law and fact without justification and that the arbitrator was wrong when he disregarded findings of fact and law at the internal disciplinary hearing when there was no evidence justifying such conduct.
3. Held that, where the arbitrator rejects such findings and there is no other evidence adduced at the arbitration proceedings contradicting those findings the arbitrator has acted arbitrarily and his decision would not be a decision that a reasonable arbitrator could make – Such decision is arbitrary or perverse and stands to be upset by the court.

 

Marula Game Range Pty Ltd v Liebenberg (HC-MD-LAB-APP-AAA-2021-00033) [2022] NALCMD 70 (10 November 2022)