- April 27, 2023
- |Concise Law Reports (CLR), Labour Law
The respondent was employed by the appellant as a sales executive from 5 March 2015 however, he was dismissed by the appellant on 23 June 2020. Before the dismissal was effected, the respondent was subjected to a disciplinary hearing within which he was charged with disobeying his superior’s instruction not to order and install a cruise control device in a demonstrator motor vehicle. However, this hearing was inconclusive and does not have a bearing on the present matter. Another disciplinary hearing was scheduled on 14 May 2020. In this hearing, the respondent was charged with six (6) counts of misconduct – two (2) counts were withdrawn, and he was acquitted and discharged on one count but found guilty of three (3) counts of dishonesty. He was found guilty of these counts therefore; he was dismissed on 23 June 2020.
According to the arbitration award issued by the arbitrator, Mr. Sasele on 17 September 2021, the respondent (Mr. Hilarius Iipinge) was to be reinstated to his position and paid N$113 400 with interest, following the arbitrator’s decision that he was unfairly dismissed by the appellant. The remit of the court was to determine whether the appellant’s appeal should be sustained; whether the appellant’s contention that the award was fraught with insurmountable legal hurdles and must be set aside, was correct.
MASUKU J considered the above facts and stated the following:
The place of a disciplinary code or policy
In terms of ‘The Guideline of Offences and Appropriate Action Depending on the seriousness of the Offence’ – the appellant’s disciplinary code – in respect of the offence of dishonesty, the first offence is a final written warning; a dismissal for the second offence was appropriate.
The court agrees with the submission of Ms. Bassingthwaighte that the arbitrator erred in regarding the disciplinary policy as a hard and fast rule. The disciplinary policy should be regarded as a guide. ‘It is very clear from the heading of the policy that it is termed a ‘guideline’, meaning that it is not cast in stone and that some flexibility, where called for, must be allowed.’
‘[83] In the Namdeb Diamond Corporation (Pty) Ltd v Richard Ronnie Gaseb SA 66/2016 [2019] NASC (9 October 2019) the Supreme Court reasoned that, ‘I agree with the observation that “a court should guard against an elevation of a disciplinary code into an immutable set of commandments which have to be slavishly adhered to.” I also agree that where there is a departure from such a code it should not be to the detriment of an employee. In my view, the overriding consideration should be whether the employer had complied with, in the particular circumstances of the case, a fair procedure.’
[84] I am of the considered view that in the instant case, the employer cannot be held to the policy as if it were the law of the Medes and the Persians. In this case, a fair procedure was followed and the appellant was correctly found guilty of three counts of dishonesty. These are, on any basis, serious charges that serve to rupture the element of trust between the employer and the employee, pointing to dismissal being the appropriate form of censure, in those circumstances.
[85] It must also be considered that the respondent, in this case, was not a mere trespasser in the area of dishonesty. He had been found guilty of dishonesty on two previous occasions and was given one written and one verbal warning, which had expired when the present charges emerged in the picture. I am of the considered view that these previous warnings, although no longer operative and had expired, cannot be wished away or placed in the sea of forgetfulness when the same employee is subsequently found guilty of the same transgression. It may be a pointer that there is a worrisome pattern that may suggest that parting ways with him or her may be the best option, regardless of what the disciplinary code, strictly interpreted and slavishly followed, may require.
[86] Properly construed, the guideline refers to work done or otherwise in relation to dishonesty. This, to my mind, would mean that it relates to dishonesty in relation to how an employee does his or her work. In other words, the work must be done honestly and conscientiously. In the instant case, the dishonesty involved the theft of the employer’s property and does not relate strictly to dishonesty in relation to how the work was done.
[87] In any event, it must also be stressed that the court should be slow to interfere with sanctions imposed by an employer where the guilt of an employee has been established. In Namibia Custom Smelters (Pty) Ltd v Mupetami and Another 2015 (3) NR 859 (LC) para 8 to 11, the court reasoned as follows:
‘[8] Be that as it may, it is well entrenched that punishment – dismissal or any alternative punishment is squarely within the discretion of the employer. On that score, I accept Mr. Rukoro’s submission on the point, but with a caveat. The discretionary power of the employer is not absolute. There is the qualification that the punishment imposed must be fair after the employer has weighed all the factors . . . In any case, it would be biting off more than it can chew if the court were to prescribe in each case what punishment an employer should impose on an errant employee.
[9] In Namibia Tourism Board v Kauapirura-Angula 2009 (1) NR 185 (LC), the court held that the employer was entitled to dismiss the employee for insubordination, assault, and use of abusive language. These were the forms of misconduct the employee in Zwane v Tip Top Holdings Swaziland IC 77/95 (unreported), at p 7, which Mr. Rukoro, counsel for the appellant, referred to, was found to have committed; and there, the Industrial Court of Swaziland held that the employer was entitled to dismiss the employee for those forms of misconduct because they were capable of canceling the unblemished record of good service. . . Howsoever that may be, the misconduct of which the first respondent was found guilty and which the second respondent accepted, as I have stated above, is an act of appropriating his employer’s property dishonestly and in breach of the company rules. In that regard, it can be said that mutual trust and confidence between the employer (the appellant) and the employee (the respondent) had clearly disappeared beyond recall. . . I conclude therefore that the dishonest act of the first respondent rendered the continuation of the employment relationship insupportable.’
[88] I am of the considered view, having regard to the foregoing excerpts, that it should be remembered that the employer’s disciplinary code must not be elevated to immutable law, such as the Ten Commandments. As long as at the end of the day, an employee is dealt with in a fair manner in the imposition of the sanction – which meets the seriousness of the transgression and the deleterious effect thereof on the employer-employee relationship, the court should not lightly interfere. The court should recognise that the imposition of the penalty pre-eminently resides in the bosom of the employer.
[89] The instant case, as recorded above, is one where the respondent committed several acts of dishonesty – three for which he was dismissed. These included pilfering the employer’s property which was recorded as dishonesty. As mentioned earlier, the respondent had two previous counts of dishonesty, in respect of which he had received formal warnings in terms of the disciplinary guidelines. Although these had expired, they were relevant in respect of the appropriate sanction to be imposed on the respondent. It was accordingly fair to dismiss the respondent, regard had to the particular circumstances of the case, the provisions of the disciplinary code, which are, in any event, a guideline, notwithstanding.’
Conclusion
[90] In the premises, I am of the considered view that the appellant has satisfied the court that this is a case in which the arbitrator committed serious errors of law that serve to vitiate the arbitral award. I find it unnecessary, in the circumstances, to consider the other grounds and bases on which the award is attacked, including the absence of evidence on the amount of compensation awarded. I am of the considered opinion that the appeal must be upheld.’
Held that:
a) That an employer’s disciplinary code or policy must not be regarded as immutable as the law of the Medes and the Persians. The court must, at the end of the day be satisfied that the employee has been treated fairly.
b) Although the employer may not have complied strictly with its disciplinary code in the instant matter, it was clear that the respondent had committed three counts of dishonesty and had two previous written warnings, which had expired. In view of these considerations, and the deleterious effect they had on the employment relationship, the employer was correct and exercised its discretion properly in dismissing the respondent.
The appellant in the present matter, satisfied the court that the arbitrator committed serious errors of law that serve to vitiate the arbitral award. As a result, the appellant’s appeal succeeded, with no order as to costs.