- June 7, 2023
- |Concise Law Reports (CLR), Labour Law
The first respondent (the employee of the appellant) was unlawfully dismissed on 26 March 2020 after working there for 30 years. He was dismissed because of gross insolence (the principal misconduct) and was found guilty by the first-instant disciplinary hearing body – to which an internal appeal body confirmed the conviction and punishment. Aggrieved by this, he referred his complaint to the Labour Commissioner. Therefore, the arbitrator found the dismissal of the first respondent to be unfair both substantively and procedurally. Hence the appellant appealed against the whole arbitration award issued on 30 November 2021.
The gross insolence charge was based on the discussion between the first respondent and the other employees. The discussion comprised of them saying that white people were the ones who brought Corona Virus into Namibia hence they should leave the country because they do not belong in Namibia. Whilst having this discussion, the Employer’s Regional Logistics Manager – Mr. Bezuidenhout a white adult male – passed by and overheard the group, he thus approached the group asking them to repeat the comment, and the comment was repeated. The first appellant was hereby instructed by Mr. Van Wyk, the employee’s supervisor, to apologize to Mr. Besuidenhout because he had been offended by the statement.
PARKER AJ considered the facts above and stated that:
‘[5] …On the record, it is incontrovertible that the statement was not directed to Bezuidenhout or any other white manager or employee of the employer. Indeed, when Bezuidenhout asked the employee to repeat the statement, the statement had been made already. No evidence was adduced to establish that the statement was directed to Bezuidenhout or any named white manager or employee of the employer.
[6] … Insolence is a common law misconduct in the employment situation whether or not the employer’s disciplinary code says so.
[7] Insolence in the employment situation is based on the employee’s obligation to show common respect and good manners towards his or her employer (PAK Le Roux and A van Niekerk The South African Law of Unfair Dismissal (1994) at 138). Insolence has been described as impudence, cheekiness, disrespect, and rudeness (C’CAWASU v Wooltru Ltd t/a Woolworths (Roundburg) (1989) 10 ILJ 311 (IC). To constitute misconduct in an employment situation, it should be directed toward the employer. The ‘employer’ includes managing directors, managers, supervisors, and suchlike officials who stand in authority over the employee in question.
[8] The arbitrator found as a fact that the statement complained of was not directed towards B or any particular white person in the employ of the employer. I do not find a misdirection on the part of the arbitrator on the fact, and so I cannot reverse the arbitrator’s conclusion on the fact because I am not convinced that he was wrong (Nathinge v Hamukonda [2014] NAHCMD 348 (24 November 2014).
[9] Accordingly, I cannot fault the arbitrator’s conclusion that the statement was a general comment; and that the employer has failed to discharge the onus cast on it by s 33 (1)(a) of the Labour Act 11 of 2007. Having so decided, it serves no purpose to consider whether the dismissal was unfair in terms also of s 33(1)(b) of the Labour Act 11 of 2007. The reason is simply that even where only the requirement in para (a) of s 33 (1) has not been satisfied by the employee, the dismissal in question is unfair (Rossam v Kraatz Welding Engineering (Pty) Ltd 1998 NR 90 at 92).
[10] The final written warning that was issued to the employee in August 2019 cannot assist the employer. A final written warning will be an aggravating factor when determining whether there was a fair reason to dismiss when the employee has committed a serious misconduct that otherwise on its own would not have attracted a dismissal (Germanus v Dundee Precious Metals Tsumeb 2019 (2) NR 453 (LC). But in the instant case, the issue of a fair reason to dismiss does not arise because the arbitrator found that there was no valid reason to dismiss; and I have not faulted his decision.’
Legal principles relating to interference with arbitration awards on appeal
Germanus v Dundee Precious Metals Tsumeb 2019 (2) NR 453 (LC):
‘[4] Appellant relied on the grounds of appeal put forth in her further amended notice of appeal. Before considering those grounds one by one, I set out, hereunder; some principles that are relevant in these proceedings and that should inform the manner in which I approach the consideration of the appeal.
(a) ‘The noting of an appeal constitutes the very foundation on which the case of the appellant must stand or fall…
“The notice also serves to inform the respondent of the case it is required to meet … Finally, it crystallizes the disputes and determines the parameters within which the Court of Appeal will have to decide the case (S v Kakololo 2004 NR 7 (HC), per Maritz J).”
(b) The function to decide acceptance or rejection of evidence falls primarily within the province of the arbitration tribunal being an inferior tribunal. The Labour Court as an appeal court will not interfere with the arbitrator’s findings of credibility and factual findings where no irregularity or misdirection is proved or apparent on the record. (See S v Slinger 1994 NR 9 (HC).)
(c) It is trite, that where there is no misdirection on fact by the arbitrator, the presumption is that his or her conclusion is correct and that the Labour Court will only reverse a conclusion on fact if convinced that it is wrong. If the appellate court is merely in doubt as to the correctness of the conclusion, it must uphold the trier of fact. (See Nathinge v Hamukonda (A 85/2013) [2014] NAHCMD 348 (24 November 2014.)
(d) Principles justifying interference by an appellate court with the exercise of an original jurisdiction are firmly entrenched. If the discretion has been exercised by the arbitrator on judicial grounds and for sound reasons, that is, without bias or caprice or the application of a wrong principle, the Labour Court will be very slow to interfere and substitute its own decision (See Paweni and Another v Acting Attorney-General 1985 (3) SA 720 (ZS) at 724H-1).) It follows that in an appeal the onus is on the appellant to satisfy the Labour Court that the decision of the arbitration tribunal is wrong and that that decision ought to have gone the other way (Powell v Stretham Manor Nursing Home [1935] AC 234 (HL) at 555). See Edgars Stores (Namibia) Ltd v Laurika Olivier and Others (LCA 67/2009) [2010] NAHCMD 39 (18 June 2010) where the Labour Court applied Paweni and Another and Powell.
(e) Respondent bears no onus of proving that the decision of the arbitrator is right. To succeed, the appellant must satisfy the court that the decision of the arbitrator is wrong. See Powell v Stretham Manor Nursing Home. If the appellant fails to discharge this critical burden, he or she must fail.
[12] In Witvlei Meat (Pty) Ltd and Others v Disciplinary Body for Legal Practitioners and Others thus:
‘[A]n appeal under s 89 of the Labour Act 11 of 2007 is an appeal in the ordinary sense. It entails a rehearing on the merits but limited to evidence and information on which the decision under appeal was given and in which the only determination is whether that decision was right or wrong.’
In the premises, the judge did not find any irregularities or misdirections in the law or fact on the evidence and information on which the decision under appeal was given therefore, it was found that the arbitrator exercised his discretion on judicial grounds and for a sound reason that is without bias or caprice or the application of a wrong principle when he found that the dismissal of the employee was substantively unfair in terms of section 33(1)(a) of the Act.
In respect of reinstatement, the court found that the appellant failed to adduce cogent and satisfactory evidence which established that the employer-employee relationship was to be broken down irretrievably. The arbitrator relied on authority (Namibia Diamond Corporation (Pty) Ltd v Henry Denzil Coetzee [2016] NALCMD 45) to come to the conclusion that reinstatement of the employee was in the circumstances an appropriate remedy. The court could not interfere with his exercise of discretion to order reinstatement of the employee without offending Paweni and Another v Acting Attorney-General, Powell v Stretham Manor Nursing Home, Witvlei Meat (Pty) Ltd and Other v Disciplinary Body for Legal Practitioners and Others, and Namibia Diamond Corporation (Pty) Ltd v Henry Denzil Coetzee.
Compensation
In reaching the amount of compensation, the arbitrator did not rely on credible and relevant evidence to assist him in exercising his discretion on judicial grounds; the order is not based on any acceptable principles and approaches. An award of compensation is not to punish the errant employer and enrich the employee. It is to recompense the employee in order to redress labour injustice (Shilongo v Vector Logistics (Pty) Ltd [2014] NALCMD 33 (7 August 2014).
The judge applied the principles as outlined in Shilongo in considering a just and reasonable amount of compensation. In that case, the court found that the employee’s conduct had contributed markedly to his dismissal thus awarding an amount equal to the employee’s four month’s salary. In this presiding matter, it was found that the principal charge of misconduct was not proven.
‘[22] …Furthermore, in the instant matter, no evidence was adduced, establishing any efforts that the employee exerted to mitigate his losses. For all these reasons, I hold that an amount equal to the first respondent’s remuneration for 12 months meets the justice of the case..’
It was Held, therefore, that:
a) Where there is no misdirection on the fact, the presumption is that the arbitrator’s conclusion is correct, and the court will only reverse a conclusion of fact if convinced that it is wrong.
b) Held, further, the court is entitled to interfere only if the arbitrator has exercised discretion wrongly based on applicable principles or when discretion was exercised capriciously and in a biased manner and not on judicial grounds or for a sound reason.
c) Held, further, insolence in the employment situation is based on the employee’s obligation to show common respect and good manners towards his or her employer; and has been described as impudence, cheekiness, disrespect, and rudeness directed to the employer; and ‘employer’ including managing directors, managers, supervisors and suchlike officials standing in authority over the employee in question.
As a result, the arbitrator’s order that the first respondent’s dismissal was unfair and that he be reinstated was upheld. The arbitrator’s order granting compensation to the first respondent is upheld, but the amount is replaced with an appropriate one. There was no order as to costs.