LABOUR LAW – APPEAL – WHETHER TERMINATION OF CONTRACT OF EMPLOYMENT CONSTITUTES DISMISSAL

LABOUR LAW – APPEAL – WHETHER TERMINATION OF CONTRACT OF EMPLOYMENT CONSTITUTES DISMISSAL

The first respondent was employed as a teacher by the appellant Ebenezer English Private School. The first respondent was unqualified to teach in the appellant’s school, firstly, because his academic qualifications were not evaluated by the Namibia Qualifications Authority and secondly, he did not have a valid work permit. The Directorate of Education carried out an assessment of the appellant’s school and issued recommendations, among others, that the appellant must employ qualified teachers. Based on the recommendations, the appellant terminated the first respondent’s contract of employment.

 

The first respondent alleged that he was unfairly dismissed and lodged a complaint with the Labour Commissioner against the appellant on grounds of unfair dismissal, unilateral change of the terms of employment and non-payment of the full salary. The appellant maintained that it did not dismiss the first respondent but merely followed the recommendations issued by the Directorate of Education. The arbitrator found that the first respondent was dismissed by the appellant without notice. The arbitrator further found that the first respondent was never paid his full salary. The arbitrator issued an award in favour of the first respondent. The appellant appealed against the award.

 

On appeal, the appellant sought to introduce new evidence that was never placed before the arbitrator. Also, the appellant argued that the arbitrator erred in law by finding that the termination of the first respondent’s contract of employment constituted a dismissal.  MUNSU AJ had to determine the following issues:

 

• Did the appellant dismiss the first respondent?
• If the answer is in the affirmative, was there a valid reason?
• Was it necessary to give notice?
• Non-payment of the full salary.

 

and held that:

 

1. The court cannot on appeal consider new evidence that was never placed before the arbitrator.
2. There are two statutory impediments to the contract of employment. Firstly, the appellant could not employ the first respondent without offending the Immigration Control Act 7 of 1993. Secondly, the respondent was unqualified to teach in the appellant’s school.
3. The Directorate of Education was acting in accordance with the law, that is, the Education Act 16 of 2001.
4. The appellant was obliged to comply with the directives issued by the Directorate of Education. Failure to comply with such directives would result in the non-registration and closure of the appellant.
5. Considering the aforementioned two legal impediments, the appellant had a valid and fair reason to terminate the first respondent’s employment contract.
6. The performance of the employment contract was objectively impossible to perform after the conclusion of the contract.
7. Held that, there has been a supervening impossibility of performance.
8. The termination of the first respondent’s employment was not a dismissal within the meaning of section 33(1) of the Labour Act 11 of 2007.
9. While the reason for terminating the first respondent’s employment contract was valid and fair, the appellant was required to comply with the provisions of the Labour Act, which includes, giving of the notice of termination of employment. The appellant had sufficient time to give the notice of termination as it was given a grace period until 1 December 2019.
10. The first respondent signed a contract of employment for a salary of N$ 14 000 per month, however, the appellant failed to pay the full salary contrary to the contract signed by the parties.

 

As a result, the appeal succeeded in part and the arbitrator’s award was amended to: Ebenezer English Private School is ordered to pay the first respondent the amount of N$ 70 000, with no order as costs.

Ebenezer English Private School v Nyamhamba (HC-NLD-LAB-APP-AAA-202100010) [2022] NALCNLD 02 (18 November 2022)