- November 10, 2022
- |Concise Law Reports (CLR), Labour Law
LABOUR LAW – WHAT CONSTITUTES ‘APPEAL ON QUESTIONS OF LAW ONLY’ IN TERMS OF SECTION 89(1)(a) OF THE LABOUR ACT, 11 OF 2007
In terms of section 89(1)(a) of the Labour Act a party to a dispute may appeal to the Labour Court against an arbitrator’s award made in terms of section 86 on any question of law alone. The general principle to be applied to determine whether an appeal is on a question of law is whether on the material placed before the arbitrator during the proceedings, there was no evidence which could have reasonably supported the findings made. Thus, the test is whether, on a proper evaluation of the evidence placed before the arbitrator that evidence leads inexorably to the conclusion that no reasonable arbitrator could have made such findings. Simply, the appellant must show that the arbitrator’s conclusion could not reasonably have been reached.
[30] Relying on the decision that was made in the matter of Rumingo and Others v Van Wyk 1997 NR 102 (HC), Parker AJ, in the matter of Nedbank Namibia Limited v Arendorf (LCA 1 of 2015) [2017] NALCMD 9 (16 March 2017) made the following remarks:
‘[6] As a general rule questions of law are those questions determined by authoritative legal principles: the court seeks to ascertain the rule of law applicable. (President of Republic of Namibia and Others v Vlasiu 1996 NR 36 at 44F-45A). And when it is said that a party may appeal on a question of law, for the purposes of appeal, Rumingo and Others v Van Wyk 1997 NR 102 (HC) at 105E tells us that the appellant must show that the impugned decision ‘could not reasonably have been reached’. In Janse van Rensburg the Supreme Court developed the Rumingo principle in this way in paras 43-47:
‘[43] I now turn to the language of s 89(1)(a). First and foremost, it is clear that by limiting the Labour Court’s appellate jurisdiction to ‘a question of law alone’, the provision reserves the determination of questions of fact for the arbitration process. A question such as ‘did Mr Janse van Rensburg enter Runway without visually checking it was clear’ is, in the first place, a question of fact and not a question of law. If the arbitrator reaches a conclusion on the record before him or her and the conclusion is one that a reasonable arbitrator could have reached on the record, it is, to employ the language used in the United Kingdom, not perverse on the record and may not be the subject of an appeal to the Labour Court.
‘[44] If, however, the arbitrator reaches an interpretation of fact that is perverse, then confidence in the lawful and fair determination of employment disputes would be imperilled if it could not be corrected on appeal. Thus, where a decision on the facts is one that could not have been reached by a reasonable arbitrator, it will be arbitrary or perverse, and the constitutional principle of the rule of law would entail that such a decision should be considered to be a question of law and subject to appellate review. It is this principle that the court in Rumingo endorsed, and it echoes the approach adopted by appellate courts in many different jurisdictions.
‘[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.
‘[46] Where an arbitrator’s decision relates to a determination as to whether something is fair, then the first question to be asked is whether the question raised is one that may lawfully admit of different results. It is sometimes said that ‘fairness’ is a value judgment upon which reasonable people may always disagree, but that assertion is an overstatement. In some cases, a determination of fairness is something upon which decision-makers may reasonably disagree but often it is not. Affording an employee an opportunity to be heard before disciplinary sanctions are imposed is a matter of fairness, but in nearly all cases where an employee is not afforded that right, the process will be unfair, and there will be no room for reasonable disagreement with that conclusion. An arbitration award that concludes that it was fair not to afford a hearing to an employee, when the law would clearly require such a hearing, will be subject to appeal to the Labour Court under s 89(1)(a) and liable to be overturned on the basis that it is wrong in law. On the other hand, what will constitute a fair hearing in any particular case may give rise to reasonable disagreement. The question will then be susceptible to appeal under s 89(1) (a) as to whether the approach adopted by the arbitrator is one that a reasonable arbitrator could have adopted.
‘[47] In summary, in relation to a decision on a question of fairness, there will be times where what is fair in the circumstances is, as a matter of law, recognised to be a decision that affords reasonable disagreement, and then an appeal will only lie where the decision of the arbitrator is one that could not reasonably have been reached. Where, however, the question of fairness is one where the law requires only one answer, but the arbitrator has erred in that respect, an appeal will lie against that decision, as it raises a question of law.’
[31] And further to the above, Parker J had to answer the question: ‘what constitutes whether decision of arbitrator was one which a reasonable arbitrator could make taking into account all the evidence, leaving nothing out’, and what follows was the conclusion made:
‘[10] In Kamanya & Others v Kuiseb Fish Products 1996 NR 123 at 13, the Labour Court held that it is a requirement of procedural fairness under our law that an employer who conducts an internal disciplinary hearing should keep a proper record of the proceedings. If such record is otiose and plays no role in subsequent arbitration proceedings that may follow when the dispute remains unresolved after conciliation in terms of the Labour Act, why would it matter whether chairpersons of internal disciplinary hearings keep proper records of the proceedings they chair, or they keep no records at all.
[11] It is important to state this crucial point: The process of resolution of an industrial dispute of right under the Labour Act involving a complaint of unfair dismissal, as is in the instant case, goes along a statutory continuum, starting with charging an employee with misconduct, through first-instance disciplinary hearing (if the employee denies the charge), followed by an internal appeal hearing to which the employee is entitled, a referral to arbitration if a party is unhappy with the outcome, where the arbitrator must attempt to resolve the dispute through conciliation before beginning arbitration, up to proceedings in the Labour Court where review of, and appeals from, an arbitration award are determined. Every point on the statutory continuum is important; and so, the record of the proceedings of the internal first-instance disciplinary hearing and the internal appeal hearing are relevant for the purposes of conciliation and arbitration. They are disciplinary proceedings at the workplace, and they are necessary: they are required by law; and their records of proceedings are relevant at arbitration: they are also required by law.
[12] As I have shown, an arbitrator cannot, as a matter of law and common sense, ignore the findings recorded in the records of proceedings of the internal disciplinary hearings (i.e., the first-instance and appeal hearings) when especially the law demands that proper record of proceedings be kept there; and, a fortiori, it is at the internal hearings – not at the conciliation or arbitration proceedings – that an employer gets the opportunity to establish that he or she had a valid and fair reason to dismiss the errant employee and that he or she followed a fair procedure in doing so in satisfaction of the requirements of s 33(1) of the Labour Act. I do not think the employer can go to the arbitration with new, sanitized grounds to explain the dismissal. If it is accepted that he or she cannot do that, I fail to see on what basis can anyone argue that an arbitrator can, without justification and without more, disregard the findings of fact and law by the chairpersons of the internal first instance and appeal hearings, just because, as Mr Soni submitted, the arbitral hearing is a hearing de novo. In my view the law required of the arbitrator not to disregard the findings of the internal hearings: after all, they formed part of the record before the arbitrator, as I have said more than once, and they contained evidence as to whether the employer complied with the requirements of s 33(1) of the Labour Act.’
[32] Considering the above, it is clear that in our labour law an appeal court ‘would be reluctant to upset the factual findings of the arbitrator’ so long as the totality of the evidence accounts for such findings; and in that event, every piece of evidence must be considered, leaving nothing out. It is also a clear principle of our law that at arbitration proceedings evidence which is relevant includes evidence of the findings of any internal first instance and appeal disciplinary hearings which appear on the record of those hearings and which form part of the record before the arbitrator. An arbitrator is therefore not entitled to disregard such findings of law and fact without justification.
Marula Game Range Pty Ltd v Liebenberg (HC-MD-LAB-APP-AAA-2021-00033) [2022] NALCMD 70 (10 November 2022) – meaning of ‘Question