- August 23, 2022
- |Concise Law Reports (CLR), Labour Law
LABOUR LAW – WHAT CONSTITUTE PROPER SERVICE OF NOTICE OF ARBITRATION HEARING?
The arbitrator issued an award against the appellants (respondent at arbitration). The respondent filed an application for rescission requesting the Labour Commissioner to set aside the award on the ground that they did not participate in the hearing of the matter as they were not informed of the date of the hearing. The arbitrator refused to rescind the award on the grounds that the record reflected that the respondent was fully aware of the matter but failed to show up without providing reasonable grounds for absence and that there was no agreement that all correspondence should be forwarded to the respondent’s legal representative. Dissatisfied with this, the respondent lodged an appeal to the Labour Court on several grounds.
On appeal, the appellant argued, among other things, that there was no proper service of the notice of set down as the service thereof was effectively defective. RAKOW J discussed the legal principles relating to appeals that are limited to questions of law as set out by the Supreme Court in Janse Van Rensburg v Wilderness Air Namibia (Pty) Ltd (2) (33 of 2013) [2016] NASC 3 (11 April 2016), the court’s interference with findings of arbitrator as per Andima v Air Namibia (Pty) Limited and Another (SA 40 of 2015) [2017] NASC 15 (12 May 2017), and the provisions of the Labour Act, 11 of 2007, and held that:
- Section 86(4) of the Labour Act requires the Labour Commissioner to inform the parties of the date and time of proceedings. To forward an email with this information to the representative of the appellant is found to be sufficient notification in terms of the Act.
- The requirement for the proof of service in terms of the Rules relating to the Conduct of Conciliation and Arbitration, is the completion of form LG36 but under rule 7(c) the Labour Commissioner may accept proof of service in a manner other than prescribed in this rule, as sufficient.
- The finding of the second respondent was not perverse. The court did not find that it was based on inadmissible or irrelevant evidence, nor that the decision failed to consider all the relevant evidence or that it was against the weight of the evidence.
As a result, the appeal was dismissed.
Ab-InBev Namibia v Botha NALCMD 23 August 2022