- March 16, 2022
- |Concise Law Reports (CLR), Labour Law
LABOUR LAW: WHERE PRELIMINARY POINTS ARE RAISED, THE ARBITRATOR TO CONDUCT A PRELIMINARY ISSUE HEARING
NAPWU lodged a dispute with the office of the Labour Commissioner against the applicant (Telecom) for unilateral change in terms and conditions of employment. Telecom raised preliminary issues (points in limine) of non-exhaustion of internal remedies, prescription and lack of jurisdiction. The second respondent (arbitrator) directed the parties to file written heads of argument and having considered both arguments, dismissed Telecom’s preliminary issues and set the matter down for arbitration hearing. Aggrieved by this, Telecom filed a notice of review in terms of section 89 (4) read with section 89 (5) (a) (ii) of the Labour Act, 11 of 2007, for the review, correction and setting aside of that ruling.
On review, the applicant, among others that the failure to hold a hearing on the preliminary issues constitutes a gross irregularity with the meaning of section 89 (5) and Rule 28 of the Con/Arb Rules resulting in the appellant not having its case fully and fairly determined as contemplated in s 89 (5) (a) (ii) of the Act. The respondent submitted, among others that the parties agreed to dispose of the preliminary issues through written submissions; the default position is that points of law are ordinarily determined without regard to oral evidence unless the parties expressly request that oral evidence be led, but there was no evidence of such request; and that the arbitrator was empowered by section 86 (7) to conduct the proceedings in the manner he considers appropriate to determine the dispute fairly and quickly with minimal legal formalities.
PRINSLOO J had to determine whether the second respondent committed a gross irregularity when he directed the parties to file written submissions on the applicant’s points of limine on prescription, jurisdiction and failure to exhaust internal remedies in writing without conducting a preliminary hearing, and stated that:
- When it comes to a preliminary issue hearing, the procedure that is followed regularly in our courts is that a preliminary issue hearing is held first and that evidence be led where applicable, especially in circumstances where the preliminary issues raised can be dispositive of the matter, i.e., prescription.
- An arbitrator performs quasi-judicial functions. The arbitrator acknowledged that the issues had to be determined through a hearing where both parties led evidence but proceeded to dismiss the points raised on the papers alone.
- The arbitrators’ discretion in terms of section 86 (7) does not justify him to completely disregard the legitimate expectation of parties to be allowed procedural rights which are commonly associated with a hearing before a ‘tribunal’ as envisaged in art 12 of the Constitution.
- The applicant was prejudiced by not having a fair hearing regarding the preliminary issues raised.
- The manner in which the arbitrator decided to deal with the preliminary issue was a gross irregularity.
As a result, arbitration award was set aside.
Telecom Namibia Limited v NAMPWU NALCMD 16 March 2022