- October 30, 2023
- |Concise Law Reports (CLR), Labour Law
Facts
The International University of Management (IUM) charged one of its lecturers, the appellant, with four charges of misconduct, namely, disrespectfulness, assault, insubordination and disobedience, and failure to follow policy procedures. During the internal disciplinary proceedings, the appellant was found guilty of the charges and was dismissed. Dissatisfied with the outcome of the disciplinary proceedings, the appellant referred a dispute for unfair dismissal to the office of the Labour Commissioner. During the arbitration proceedings, the appellant testified in his defence and called an additional witness, while IUM produced the evidence of six witnesses.
It is the case of IUM that the appellant stormed into the office of his supervisor, approaching him in a threatening manner inducing a sense of fear and harm, which incident persisted, despite attempted intervention by a third party and colleagues of the appellant. IUM further contends that the appellant was selected as one of the staff members to invigilate examination sessions and that he was not present during two of the scheduled sessions and failed to inform his supervisor to enable IUM to make alternative arrangements.
The arbitrator found in favour of IUM and confirmed the dismissal, finding the evidence of IUM’s witnesses to be credible and to be preferred over the evidence of the appellant. It is common cause between the parties that the appellant had six months remaining on his five-year contract with IUM. As such, he sought payment in the amount of N$300 000, being six months’ salary at N$50 000 per month for the remainder of his contract. He further sought compensation for financial losses of N$ 400,000.
As it relates to charges three and four, the arbitrator considered the register and found there was no column for the invigilators to sign that they were present. The arbitrator found that although the column was absent from the register, all invigilators had signed the register, except the appellant, and that his version was denied by the Director of Examination Management. On a balance of probabilities, the arbitrator found that the recording of time only was not sufficient to prove that Mr Uzera was at the venue and that the testimony of Mr Uzera was also not credible, as he also did not sign, or indicate in the comment column that he was standing in for the appellant.
The arbitrator found that the appellant pleaded guilty to charge one (disrespectfulness) and therefore he did not deal with that charge. As to charge two (assault), the arbitrator found the version of the Head of Department and Lecturer within the Business Administration Faculty more probable than that of the appellant, as her testimony was supported by Mr Peters. In the result, the arbitrator found the dismissal to be procedurally and substantively fair in terms of s 33 of the Labour Act.
Issues for determination
Whether or not the dismissal from the International University of Management was procedurally and substantively fair
Discussion
Section 33 of the Labour Act sets out the law on unfair dismissal. It reads:
‘33 Unfair dismissal
(1) An employer must not, whether notice is given or not, dismiss an employee –
(a) without a valid and fair reason; and
(b) without following –
(i) the procedures set out in section 34, if the dismissal arises from a reason set out in section 34 (1); or
(ii) subject to any code of good practice issued under section 137, a fair procedure, in any other case.’
This court in Dominikus v Namgem Diamonds Manufacturing (LCA 4 of 2016) [2018] NALCMD 5 (28 March 2018), dealt with the principle of substantive fairness:
‘[21] Substantive fairness means that a fair and valid reason for the dismissal must exist. In other words, the reasons why the employer dismisses an employee must be good and well-grounded; they must not be based on some spurious or indefensible ground. This requirement entails that the employer must, on a balance of probabilities, prove that the employee was guilty of misconduct or that he or she contravened a rule. The rule, that the employee is dismissed for breaking, must be valid and reasonable. Generally speaking, a workplace rule is regarded as valid if it falls within the employer’s contractual powers and if the rule does not infringe the law or a collective agreement.’
The requirements of procedural fairness include the right to be:
told the nature of the misconduct committed and to be afforded adequate notice before the disciplinary enquiry;
allowed being heard and to call witnesses in support of any defence and to cross-examine witnesses called against you,
informed of the finding (if found guilty) and the reasons for the finding,
heard before the penalty is imposed,
informed of the right to appeal etc.
The legal principles relating to appeals to the Labour Court are well established. In Janse van Rensburg v Wilderness Air Namibia (Pty) Ltd (33 of 2013) [2016] NASC 3 (11 April 2016), the Supreme Court held inter alia the following:
‘[45] It should be emphasised, however, that when faced with an appeal against a decision that is asserted to be perverse, an appellate court should be assiduous to avoid interfering with the decision for the reason that on the facts it would have reached a different decision on the record. That is not open to the appellate court. The test is exacting – is the decision that the arbitrator has reached one that no reasonable decision-maker could have reached.’
In Germanus v Dundee Precious Metals Tsumeb 2019 (2) NR 453 (LC), the following was held:
‘(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 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.’
Conclusion
After applying the facts to the legal principles, the court concluded that:
‘I am satisfied that the procedural rights of the appellant were observed during the disciplinary hearing. From the notice of appeal, there is no clear distinction drawn between what the appellant contends are substantive and procedural grounds. I cannot see how such procedural rights were violated during the disciplinary hearing. When counsel for the appellant was questioned by the court on this issue, he confirmed that the appellant was informed of the charges and the hearing; he also had the opportunity to present his case, call witnesses, cross-examine the witnesses of IUM and inform the disciplinary panel that he had sufficient time to prepare for his hearing. The grounds recorded in the notice of appeal, do not speak to the record, and even more so, do not speak to any controvertible and assailable finding by the arbitrator to warrant setting aside the arbitration award.’
As to the substantive fairness of the dismissal, I note, from the record of the arbitration that the IUM policy clearly states the following:
The conduct of which the appellant stood accused falls squarely within the ambit of the IUM assault policy. It is also evident from the record that the arbitrator considered the testimony of the witnesses who both experienced and observed the alleged altercation, and on a balance of probabilities found their versions more probable. The grounds of appeal and argument advanced by the appellant do not do much to controvert and draw into question the decision of the arbitrator.
I do not find any argument advanced on behalf of the appellant or evident from the record as to why the court must interfere with the decision of the arbitrator. The reasoning was sound and even if this court did not hold the same view (which is not the case), the finding can on no construction be found to be perverse.
Order
The appeal against the arbitrator’s award under case number CRWK-725/2020 is dismissed.
There is no order as to costs.
The matter is finalised and removed from the roll.