- October 21, 2022
- |Concise Law Reports (CLR), Labour Law
LABOUR LAW – REFUSAL TO ALLOW LEGAL REPRESENTATION ON THE GROUND THAT THE OTHER PARTY IS NOT LEGALLY REPRESENTED
The third respondent was employed by the applicant (Agribank). She was charged and found guilty of gross negligence following disciplinary proceedings where dismissal was recommended. She noted an internal appeal against the outcome of the disciplinary proceedings which was dismissed. On 1 November 2019, the applicant served the third respondent with a notice of termination of employment effective from 1 December 2019.
On 26 March 2020, the third respondent referred a dispute of unfair dismissal to the Labour Commissioner for conciliation and arbitration. The conciliation was not successful, and arbitration commenced on 15 February 2021 (still pending at the time of review). Both Agribank and the third respondent were initially represented by legal practitioners during the disciplinary hearing and the initial stages of arbitration proceedings. However, the third respondent lost her legal representation during arbitration proceedings.
During August 2021, the third respondent referred a further dispute of unfair labour practice and non-payment of remuneration, and again on 20 September 2021, she referred another dispute of unilateral change of terms and conditions; unfair labour practice and non-payment of remuneration.
On 3 November 2021, Agribank submitted a request for legal representation at conciliation and arbitration in respect of the dispute-referrals of August and September 2021, on the grounds that the matter was complex, and that the third respondent would not be prejudiced. On 24 November 2021, the arbitrator (second respondent) declined the request for legal representation and provided the reasons for the refusal as: ‘representation not granted. Reason being that the applicant is not represented.’
Agribank approached the Labour Court with an application to review the arbitrator’s decision of refusing to grant it legal representation. At the hearing, the applicant indicated it was seeking further relief that:
- The court decides the issue that the applicant be allowed legal representation and not refer the matter back to the second respondent; and
- The third respondent be ordered to pay the costs of this review application including costs of one instructing and instructed counsel.
The third respondent denied that the matter was complex and further raised a point in limine to the effect that the applicant had not complied with rule 4(2), in that it did not file a Board resolution authorizing the deponent to the applicant’s founding affidavit and the legal practitioner of the applicant to represent it – that the application was not properly before court and should be struck from the roll.
USIKU J considered the matter and stated that:
- The applicant was represented by a legal practitioner and not by one of its directors. Therefore, the point in limine was meritless and stood to be dismissed.
- The arbitrator did not properly apply his mind to the requirements of section 86(13)(a) of the Labour Act, 11 of 2007 in refusing legal representation. Therefore, on the facts of the matter, the applicant made out a case for the review and setting aside of the arbitrator’s refusal.
- The were good reasons in the circumstances for the court to exercise its discretion in favour of the applicant and grant the application for representation and not refer the issue of legal representation back to the arbitrator. The court could, however, not determined the main dispute between the parties as that was still pending for determination before the arbitrator and there were no good reasons for the court to usurp the functions of the arbitrator, in the circumstances.
- The court was not convinced that the third respondent acted in a frivolous and vexatious manner in defending the proceedings, to justify a costs order.
As a result, the arbitrator’s decision was set aside, and the applicant was permitted to have legal representation in the arbitration proceedings. No order as to costs was made and the matter was accordingly removed from the roll and finalized.
Agricultural Bank of Namibia v Labour Commissioner NALCMD 21 October 2022)