LABOUR LAW – DISMISSAL ON THE GROUND OF BREACH OF FIDUCIARY DUTY – SUBSTANTIVE AND PROCEDURAL FAIRNESS

LABOUR LAW – DISMISSAL ON THE GROUND OF BREACH OF FIDUCIARY DUTY – SUBSTANTIVE AND PROCEDURAL FAIRNESS

The appellant was employed by the respondent employer and was charged with four charges of misconduct. The first-instance internal disciplinary body found the appellant guilty of charges 1 – 3 and acquitted on charge 4, and recommended dismissal. The appellant appealed from that decision to an internal appeal body. Aggrieved by the decision of the internal appeal body, the appellant lodged a complaint with the Labour Commissioner. The arbitrator in turn upheld the decision of the internal appeal body; whereupon he found the appellant’s dismissal to be fair substantively and procedurally, within the meaning of s 33 (1) of the Labour Act 11 of 2007.

In considering the grounds of appeal, PARKER AJ applied the following trite principles and approaches relevant to appeals in general to the fact of the case:

‘[4] …

(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 Hamukanda (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.’’

and held that:

1. A breach of the employer’s fiduciary duty to his or her employer that has the potential to bring the employer’s good name into disrepute or has the potential to cause labour disharmony is a dismissible misconduct.

As a result, the appeal was diminished.

Angolo v Rosh Pinah Zinc Corporation (Pty) Ltd NALCMD 26 October 2022