- April 4, 2023
- |Concise Law Reports (CLR), Labour Law
The appellant was a member of the pension fund of the first respondent and was entitled to retire at the age of 55. He thus applied for early retirement at the age of 59 and 11 months which was approved by the Chief Executive Officer, therefore he did not resign – at this point, he was 12 days from reaching retirement age and he was also elected to the local authority council. The appellant went on early retirement with concomitant benefits according to the Retirement Fund Rules.
RAKOW J had to determine the following legal questions:
a) ‘In terms of the requirement for the pension fund to become operational, the employer seeks a three-month notice period before early retirement although that is not a requirement for resignation.’
b) Whether the appellant should have given three months’ notice when he retired early or not?
c) Whether this three months notice period is applicable to early retirement or only in circumstances where the appellant resigned?
d) Was it possible to give the notice even though the appellant was already at the age of 59 years and 11 months when he gave the initial notice?
Having considered the facts above, it was stated that:
Legal Principles:
‘When dealing with determining questions of law on appeal in labour matters, the court can do no better than to refer to the matter of Janse Van Rensburg v Wilderness Air Namibia (Pty) Ltd ) SA 33/2013) [2016] NASC 3 (11 April 2016) wherein the Supreme Court points out what is understood regarding appeals that are limited to a question of law alone. O’Reagan AJA said:
‘[46] Where an arbitrator’s decision relates to a determination as to whether something is fair, then the first question to be asked is whether the question raised is one that may lawfully admit of different results. It is sometimes said that ‘fairness’ is a value judgment upon which reasonable people may always disagree, but that assertion is an overstatement. In some cases, a determination of fairness is something upon which decision-makers may reasonably disagree but often it is not. Affording an employee an opportunity to be heard before disciplinary sanctions are imposed is a matter of fairness, but in nearly all cases where an employee is not afforded that right, the process will be unfair, and there will be no room for reasonable disagreement with that conclusion. An arbitration award that concludes that it was fair not to afford a hearing to an employee when the law would clearly require such a hearing, will be subject to appeal to the Labour Court under s 89(1)(a) and liable to be overturned on the basis that it is wrong in law. On the other hand, what will constitute a fair hearing in any particular case may give rise to reasonable disagreement. The question will then be susceptible to appeal under s 89(1)(a) as to whether the approach adopted by the arbitrator is one that a reasonable arbitrator could have adopted.
[47] In summary, in relation to a decision on a question of fairness, there will be times where what is fair in the circumstances is, as a matter of law, recognised to be a decision that affords reasonable disagreement, and then an appeal will only lie where the decision of the arbitrator is one that could not reasonably have been reached. Where, however, the question of fairness is one where the law requires only one answer, but the arbitrator has erred in that respect, an appeal will lie against that decision, as it raises a question of law.
[48] Finally, when the arbitrator makes a decision as to the proper formulation of a legal test or rule, and a party considers that decision to be wrong in law, then an appeal against that decision will constitute an appeal on a question of law, and the Labour Court must determine whether the decision of the arbitrator was correct or not.
[49] The advantage of the approach outlined above is that it seeks to accommodate the legislative goal of the expeditious and inexpensive resolution of employment disputes, without abandoning the constitutional principle of the rule of law that requires labour disputes to be determined in a manner that is not arbitrary or perverse. It limits the appellate jurisdiction of the Labour Court by restricting its jurisdiction in relation to appeals on fact and on those questions of fairness that admit of more than one lawful outcome to the question whether the decision of the arbitrator is one that a reasonable arbitrator could have reached. Other appeals may be determined by the Labour Court on the basis of correctness. In outline, then, this is the approach that should be adopted in determining the scope of appeals against arbitration awards in terms of s 89(1)(a).’
In the matter of Jimmy-Naruses v Duiker Investment 142 (Pty) Ltd (HC-MD-LAB-APP-AAA-2020/00023) [2021] NALCMD 8 (15 March 2021) Schimming-Chase AJ said the following:
‘In terms of section 89(1)(a) of the Labour Act a party to a dispute may appeal to the Labour Court against an arbitrator’s award made in terms of section 86 on any question of law alone. The general principle to be applied to determine whether an appeal is on a question of law is whether, on the material placed before the arbitrator during the proceedings, there was no evidence that could have reasonably supported the findings made. Thus, the test is whether, on a proper evaluation of the evidence placed before the arbitrator that evidence leads inexorably to the conclusion that no reasonable arbitrator could have made such findings. Simply, the appellant must show that the arbitrator’s conclusion could not reasonably have been reached.’
In Andima v Air Namibia (PTY) Limited and Another (SA 40 of 2015) [2017] NASC 15 (12 May 2017) the court specifically dealt with the question as to when a finding is perverse. It found:
‘that a finding is perverse if: (a) it is based on inadmissible or irrelevant evidence, (b) it fails to take into account all the relevant evidence, and (c) it is against the weight of the evidence in that it cannot be supported by the evidence on the record. Accordingly, the finding would not be perverse and appellate interference would not be justified just because, on the same facts, the superior tribunal could have come to a different conclusion.’
In Reuter v Namibia Breweries Ltd, (HC-MD-LAB-APP-AAA-2018/00008) [2018] NAHCMD 20 (08 August 2018). Parker AJ said the following:
‘The function to decide acceptance or rejection of evidence falls primarily within the province of the arbitration tribunal. The Labour Court will not interfere with the arbitration tribunal’s finding where no irregularity or misdirection is proved or apparent on the record. Where there is no misdirection on fact by the arbitrator the presumption is that the arbitrator’s conclusion is correct and the Labour Court will only reverse the arbitrator’s conclusion on fact if convinced that the conclusion is wrong.’
Held that:
a) ‘In this instance, the court is satisfied that the conclusion reached by the Labour Commissioner is clearly not wrong and it is a conclusion she was entitled to reach. I therefore find no legal point available and for that reason, the appeal must not succeed.’
As a result, the appeal was dismissed.