- July 6, 2023
- |Concise Law Reports (CLR), Labour Law
This was an urgent application to stay the arbitration award made on 22 May 2023 in case number CRWK 444-20 by the arbitrator, by the arbitrator, Immanuel Heita (cited as the second respondent herein). The first respondent was employed by the applicant as a Human Resources Manager until 1 December 2019 when she was dismissed after disciplinary proceedings. The alleged reason for her dismissal was her conduct during a disciplinary hearing of an employee of the applicant. There were many factual disputes around this, which was not for the court to resolve at that stage.
A number of preliminary points were raised on behalf of the first respondent, being that the applicant had no locus standi since there was no resolution before the court; the applicant was in contempt of court and no irreparable harm or prospects of success on appeal was shown.
As far as the locus standi point was concerned, the founding affidavit on behalf of the applicant was deposed to by its manager of legal services who alleged that she was duly authorised to bring the application. In response to the first respondent’s allegations regarding locus standi in her answering affidavit, the applicant’s legal practitioners uploaded a resolution by the board of the applicant as well as an ‘Approval to Institute Proceedings’ dated 30 June 2023 and signed by the CEO of the applicant.
The second respondent’s award was annexed to the applicant’s founding affidavit and obviously speaks for itself. It was clear that the matter before him was extensively disputed. In his award, the second respondent sets aside the first respondent’s dismissal, ordered her reinstatement with effect from 15 June 2023, and ordered the applicant to pay the first respondent an amount of N$3 647 932,32, being the first respondent’s salary that she would have earned had she not been dismissed. On 8 June 2023, the applicant noted an appeal, raising various grounds of appeal.
COLEMAN J heard the application and concluded the following:
In support of his submission that the applicant was not properly before the court due to the fact that a resolution was not annexed to the founding affidavit, counsel for the first respondent referred to a number of cases, which in the court’s view was of no assistance. The deponent to the applicant’s founding affidavit stated under oath that she was the applicant’s manager of legal services, and she was duly authorised to bring the application. The court was satisfied that enough was before it to warrant the conclusion that it was the applicant bringing the application.
Furthermore, the fact that the applicant may be due to perform in terms of the award for a few days while it is pursuing its appeal is no bar against it pursuing this application on an urgent basis. From a perusal of the arbitration award and the grounds of appeal, it appeared that there were reasonable prospects of success on appeal. As a result, the court was satisfied that the applicant made out a case for the stay of the award.
Therefore, the matter was heard on an urgent basis and the time periods and forms in the rules of this court were dispensed with. Subject to paragraph 3 of the order the award by the second respondent made on 22 May 2023 in case number CRWK 444-20 was suspended, pending the finalisation of the appeal against the aforesaid award. The applicant was ordered to pay the first respondent’s monthly salary commencing on 1 July 2023 until the finalisation of the appeal. There is no order as to costs.