labour judgment index namibia 2013
TRANSCRIPT
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HIGH COURT LABOURJUDGMENTS INDEX
2013
COMPILED BY: MS. LOTTA AMBUNDA
JUDICIAL RESEARCH ASSISTANT
DIRECTORATE: REGISTRAR OF HIGH AND SUPREME COURT
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THE HIGH COURT JUDGMENT INDEX 2013
THE HIGH COURT JUDGMENT INDEX IS A SUMMARY OF ALL CIVIL,CRIMINAL AND LABOUR JUDGMENTS DELIVERED AND HANDED DOWN IN THEHIGH COURT OF NAMIBIA DURING THE YEAR 2013. THE INDEX IS COMPILED
TO ASSIST LEGAL PRACTITIONERS, LAW STUDENTS AND THE PUBLIC TOEASILY REFER TO UNREPORTED JUDGMENTS OF THE HIGH COURT ASCOMPETENT AUTHORITIES.
THE INDEX HAS BEEN PREPARED WITH THE APPROVAL OF THE JUDGE-PRESIDENT AND UNDER THE SUPERVISION OF THE CHIEF REGISTRAR.
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Table of Contents
SUBJECT INDEX....................................................................................................... 4
APPEAL ..................................................................................................................... 4
BASIC CONDITIONS OF EMPLOYMENT ................................................................. 5
INTERPRETATION OF THE LABOUR ACT, 2007 .................................................... 6
JURISDICTION OF LABOUR COURT ...................................................................... 7
REVIEW OF ARBITRATION AWARD ....................................................................... 8
URGENT APPLICATION ........................................................................................... 9
CASE SUMMARIES ................................................................................................... 10
Biwa v Namibia Airports Company(LC 39/2013) [2013] NALCMD 11(5 April 2013) .. 10
Kamati v Namibia Rights and Responsibilities Incorporated (LC 1-2012) [2013]NALCMD 1 (14 January 2013) ................................................................................... 11
Kandukira v Shinguadja (LC 118/2011) [2012] NALCMD 8 (21 September 2012) ..... 11
Mokwena vs Shinguadja (LC 52/2011) [2013] NALCMD 10 (28 March 2013) ............ 12
Namib Mills (Pty) Ltd vs Shigwedha (LCA 34/2012) [2013] NALCMD 6 (22 February2013) .......................................................................................................................... 12
Rosh Pinah Zinc Corporation (Pty) Ltd v Murongo (LCA 36/2012) [2013] NALCMD 3(24 January 2013) ...................................................................................................... 13
Schmitz Services CC vs Titus (LCA 44/2012) [2013] NALCMD 12 (16 April 2013) .... 14
The Minister of Education v The Interim Khomas Teachers Strategic Committee andAll Persons forming part of the Collective Body of the First Respondent (LC 166/2012)[2013] NALCMD 2 (23 January 2013). ....................................................................... 14
Van Niekerk v MB Truck Spares (LC 72/2013) [2013] NALCMD 20 (20 June 2013) .. 14
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SUBJECT INDEX
APPEAL
Labour law Arbitral award Appeal against Court rejected arbitrators finding that
employee first respondents dismissal is unfair Court finding that the uncontradicted
evidence before the arbitrator does not account for the arbitrators finding that the
dismissal is unfair Labour lawEmployers payment of severance pay in terms of s
35(1) of the Labour Act 11 of 2007 In virtue of s 35(2) payment of severance does not
apply to each and every employee who separates from his or her employment. Schmitz
Services CC vs Titus (LCA 44/2012) [2013] NALCMD 12 (16 April 2013)
Labour law Appeal In terms of rule 17(25) of the Labour Court Rules
Interpretation and application of - Labour law Arbitral award Appeal against Arbitrators finding that employee respondents dismissal is unfair rejected by the court
Court finding that employer appellants disciplinary hearing was procedurally fair and
appellant employer had valid and fair reason to dismiss Accordingly appeal succeeds
and arbitrators award reinstating employee respondent set aside. Namib Mills (Pty) Ltd
vs Shigwedha (LCA 34/2012) [2013] NALCMD 6 (22 February 2013).
Labour law - Appeal against an arbitrators ruling that the appellant was not an
employee of the first respondent. Question arising as to whether this was a question of
fact or law and thus not appealable under s 89 of Act 11 of 2007. The court concluded
that it was a question of law and not appealable. Swarts v Tube-O-Flex Namibia (Pty)Ltd (LCA 51/2012) [2013] NALCMD 8 (27 March 2013).
Labour law - Appeals To Labour Court from the district labour court What
judgments or orders are appealable Only judgments or orders having the effect of a
final judgment and any order as to costs are appealable. Labour law Meaning of
frivolous or vexatious in section 20 of Labour Act, 6 of 1992 discussed. Telecom
Namibia Ltd v Klein (LCA 39-2009) [2013] NALCMD 5 (5 February 2013).
Labour law -Appeal in terms of s 89 of Act 11 of 2007. Non-compliance with rule 5 of
rules relating to the conduct of conciliation and arbitration. Not one of the applicants
signed a joint referral. No accompanying statement was attached authorising the union
signatory. This non-compliance vitiated the proceedings. Proceedings also defective
and irregular because applicants not required to prove their claims under oath and the
arbitrator misconceiving the nature of the onus in respect of the claims. Springbok
Patrols (Pty) Ltd v Jacobs & Others (LCA 702/2012) [2013] NALCMD 17 (31 May 2013).
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Labour law Appeal against arbitration award Suspension from duty pending an
investigation into certain perceived irregularities No disciplinary hearing held and
matter referred to Labour commissioner Award stating that the internal remedies were
not exhausted and ordering for the re-instatement Court holding that the arbitrator
correct in holding that the internal remedies were not exhausted but erred in ordering for
the re-instatement as there was no evidence adduced Arbitration award set aside.
Royal House of the Chief Kambazembi v Harold Kavari N.O. (LC 53/2012) [2012]
NALCMD 14 (26 November 2012)
Labour law - Labour Court Rules and Practice Application to stay operation of
Arbitrators award Notice of appeal defective No appeal noted. van Niekerk v MB
Truck Spares (LC 72/2013) [2013] NALCMD 20 (20 June 2013).
Labour law - Contempt of court Civil contempt Sentence Purpose of sentence not
merely punitive but to coerce obedience of court order. The Minister of Education v TheInterim Khomas Teachers Strategic Committee and All Persons forming part of the
Collective Body of the First Respondent (LC 166/2012) [2013] NALCMD 2 (23 January
2013).
BASIC CONDITIONS OF EMPLOYMENT
Labour law - Remuneration Commission Respondent claiming payment of
commission for work done before resignation Conditions of employment however
providing that commission only payable in the first salary run after customer
acceptance, full provisioning and the customer being invoiced - Respondent resigning
after customer acceptance but before full provisioning and customer acceptance having
occurred, ie before payment had become due Respondent contending in defence of
arbitration award made in favour of respondent that Sections 9(2)(a) as read with
Section 37(1)(a) of the Labour Act 2007 rendered the applicable conditions of the
commission scheme unenforceable as they were less favourable - and as Section
37(1)(a) which thus governed the payment of remuneration which included the
payment of commission - in such circumstances required an employer to pay an
employee for all work done before the date of termination the appellant had become
liable to pay the commission claimed as the respondent had done all the work in thisregard - Appellant argued that this argument and the arbitrators award had overlooked
and ignored the impact of the word due as contained in section 37(1)(a) which merely
required an employer to pay the employee all the remuneration due for work done
before the termination. In terms of the conditions of employment the commission
claimed had not become due and accordingly the arbitrator had erred in this regard - in
any event section 37(1)(a) was not more favourable to the respondent as also the
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particular clause, in the commission scheme, governing the payments of commission,
only obliged the appellant to pay such remuneration/commission, which had become
due to the employee for work done at the time of termination. Vox Orion (Pty) Ltd t/a
Vox Orion v Prinsloo (LCA 74/2012) [2013] NALCMD 19 (13 June 2013).
Labour law - Remuneration Claim for payment of commission Interpretation of
Sections 9(1) and (2) as read with 37(1)(a) of Labour Act 2007 Court finding that that
Section 9(1) provides that the basic conditions of employment - set out in Parts B
through to F of Chapter 2 of the Act - constitute terms of any contract of employment
that this holds true for the relied upon section 37(1)(a), which is a section contained in
Part F of the Second Schedule. The statute then expressly envisages and provides for
situations in which the Act will superimpose conditions of employment - to the extent
that they are more favourable - on any employer and employee relationship. This will
occur in the cases which are listed in Sections 9(2)(a) to (c) and (3) of the Act In casu
where the respondent regarded section 37(1)(a) as the more favourable condition ie.to the extent that it is considered the section more favourable than the conditions of
employment governing the payment of commission - the scenarios envisaged by
section 9(1)(b) and (b) did not arise as Section 37(1)(a) in any event already constituted
a term of the contract between the parties - it followed that the respondents claim fe ll to
be determined, in the main, with reference to section 37(1)(a). Vox Orion (Pty) Ltd t/a
Vox Orion v Prinsloo (LCA 74/2012) [2013] NALCMD 19 (13 June 2013).
Labour Law -Disputes referred to the office of the Labour Commissioner outside theperiods referred to in s 86(2) are prescribed. A dispute arose in the present context
when the respondent took issue with the withdrawal of unauthorized benefits. Benefitsto Local Authority employees are invalid if ministerial approval is not granted for them.
Luderitz Town Council v Shipepe (LCA 42/2012) [2013] NALCMD 9 (27 March 2013)
Labour law - It is not substantially unfair to offer an employee who was injured in a non-
work related accident, an alternative position at a lower remuneration if as a result of the
accident the employee can no longer do the work he did prior to the accident. Rosh
Pinah Zinc Corporation (Pty) Ltd v Murongo (LCA 36/2012) [2013] NALCMD 3 (24
January 2013).
INTERPRETATION OF THE LABOUR ACT, 2007
Labour law Interpretation of Section 37(1)(a) of Labour Act 2007 Court holding that
the legislatures use of the word due in the section - and the import of the concept
owing therein through the definition of the word remuneration - as contained in
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Section 1 - could not be overlooked and ignored in the interpretation of the section and
had to be given effect to Also on a literal interpretation of section - which did not result
in any absurdity and - in circumstances were the context of the section did not
override the ordinary meaning of the language employed - it appeared that Section
37(1)(a) sets two requirements before remuneration, as defined, is to be paid : ie. the
work must be done and payment therefore must have become due at the time of
termination as these requirements had not been met on the facts of the case the
appeal had to be upheld. Vox Orion (Pty) Ltd t/a Vox Orion v Prinsloo (LCA 74/2012)
[2013] NALCMD 19 (13 June 2013).
Labour law Section 134(c) of the Labour Act 2007 Applicant seeking costs order
against arbitrator - In terms of the section arbitrator appointed in terms of Labour Act
2007 not incurring any personal civil liability if, acting in terms of any provision of this
Act, he/she did something, or failed to do something, in good faith in the performance
of his/her functions in terms of the Labour Act Term good faith is not defined Decided that these words can be interpreted to mean with honesty or sincerity of
intention or proceeding from- or characterised by genuine feelings, free from pretence
or deceit Rationale behind immunity afforded by section reaffirmed Dictum
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA
2006 (1) SA 461 (SCA) at 471C-E approved In the present instance court finding on
the facts that actions of arbitrator On a balance of probabilities Could not be said to
have acted in bad faith Arbitrator therefore not losing immunity afforded by Section
134(c) of the Labour Act, Special costs order refused. Fashion Retailers (Pty) Ltd t/a
American Swiss Jewellers v Kurz(LC 68/2011) [2012] NALCMD 15 (25 October 2012)
Labour law Labour Act, No 6 of 1992 - Application for rescission of default judgment
under rule 22 of rules of district labour courts Applicable principles re-stated. Adcon
CC v Sack(LCA 31/2008) [2013] NALCMD 18 (10 June 2013).
JURISDICTION OF LABOUR COURT
Labour law Labour Court Jurisdiction Labour Court not having jurisdiction to
entertain claims based on non-compliance with or contravention of Chapter 3 of LabourAct Such disputes should be referred to arbitrator to resolve in accordance with Part C
of Chapter 8 of Labour Act. Kamati v Namibia Rights and Responsibilities Incorporated
(LC 1/2012) [2013] NALCMD 1 (14 January 2013).
Labour law - Labour Court - Applications and motions Application to review and set
aside arbitration award Section 89(4) of the Labour Act, 2007 read with Rule 14(7) of
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Labour Court Rules requiring such application to be launched within 30 days of the
arbitration award having been handed down. Namquest Fishing (Pty) Ltd v Vilho
Melkisendeki(LC 2/2010) [2013] NALCMD 16 (20 MAY 2013).
Labour law - Question of law includes a finding of fact made by a lower court which
no court could reasonably have made ie where there was no evidence which could
reasonably support such a finding of fact or where the evidence is such that a proper
evaluation of that evidence leads inexorably to the conclusion that no reasonable court
could have made that (factual) finding Rationale underpinning this approach is that the
finding in question was so vitiated by lack of reason as to be tantamount to no finding at
all. Respondent dismissed during disciplinary hearing inter alia for the unauthorised use
of property belonging to his employer (appellant) The undisputed evidence was that
respondent presented a fire-extinguisher belonging to the appellant when respondent
took his private motor vehicle for a roadworthy test at NaTIS Testing officer informed
respondent personally that vehicle (a kombi) cannot pass test since fire-extinguisherbelonged to a company and was not mounted inside the vehicle as required by law
Testing officer subsequently reported incident to appellant Respondent never testified
in own defence during arbitration proceedings. Namdeb Diamond Corporation (Pty) Ltd
v Smith (LCA 50/2012) [2013] NALCMD 13 (19 April 2013).
REVIEW OF ARBITRATION AWARD
Labour law
Review and set aside decision of first respondent Leave to appeal
refused Test No reasonable prospect that another Court may come to a different
conclusion. Methealth Namibia Administrators (Pty) Ltd v Mbengela N.O. (LC 97/2011)
[2013] NALCMD 21 (24 June 2013).
Labour law Arbitral award Application to review and set aside of award in terms of
the Labour Act 11 of 2007, s 89(4) and (5) and (10) The Labour Act sets out
exhaustively the grounds, any one of which, the applicant should prove exists in order to
succeed. Labour Law Arbitral award Application to review and set aside award in
terms of the Labour Act 11 of 2007, s 89(4) and (5) and (10), read with rule 6(1) of theRules of the Labour Court Facts (or grounds) not set out in the notice of motion not
available to applicant during the hearing. Mokwena vs Shinguadja (LC 52/2011) [2013]
NALCMD 10 (28 March 2013).
Labour Law -An application for review of a decision of an arbitration must be brought
within the time periods set out in s 89(4) of the Labour Act, 11 of 2007. There is no
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power to condone the failure to bring a review outside those periods. Lungameni &
Others v Hagen & Another (LC 99/2012) [2013] NALCMD 15 (27 March 2013)
Labour law - Application for review of arbitration proceedings in respect of labour
dispute Arbitrator refusing to recuse himself after it was established that he had prior
knowledge of the dispute Arbitrator further having discussions with one or more of the
respondents before delivering his award in the absence of the applicant Practice
Respondents raising point that they were not properly served because case number did
not appear in newspaper tear sheets Referral form (Form LC21) not signed. Namura
Mineral Resources (Pty) Ltd v Mwandingi (LC 51/2010) [2013] NALCMD 4 (23 January
2013)
URGENT APPLICATION
Labour law
Urgent application to interdict overtime ban as unprocedural industrialaction requirements of s 79 of the Labour Act 11 of 2007 discussed jurisdiction of
the Labour Court to grant urgent interdicts raised and found to be confined to pending
disputes referred under Chapter 8 of Act 11 of 2007. Meatco v Namibia Food and Allied
Worker Union & Others (LC 61/2013) [2013] NALCMD 14 (19 April 2013).
Labour law - Urgent application for stay of disciplinary proceedings pending finalisation
of a referral of a dispute between the parties for conciliation / arbitration to the Labour
Commissioner in terms of Chapter 8 of the Labour Act, 11 of 2007 Applicants urgency
self-created In the alternative, on its own papers, it failed to show that it would not
obtain substantial redress in due course. Biwa v Namibia Airports Company (LC
39/2013) [2013] NALCMD 11(5 April 2013).
Labour law Urgent application Application to set aside proceeding of the District
labour Court proceedings in the District Labour Court are frivolous and vexatious and
as a result amount to an abuse of the process of court - Matter to be dealt with by the
District labour court instead - Security Rule 62 of the Magistrates court apply
Application dismissed. National Housing Enterprises v Beukes (LC 67/2012) [2013]
NALCMD 07 (27 February 2013).
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CASE SUMMARIES
Biwa v Namibia Airports Company(LC 39/2013) [2013] NALCMD 11(5 April 2013)
Summary: The applicant launched an urgent applicant for the stay of disciplinary
proceedings instituted against him and scheduled for hearing by an independent
chairperson by agreement between the parties on 28 February 2013 pending
finalisation of a referral of a dispute between the parties for conciliation and medication /
arbitration to the Labour Commissioner. The application was instituted and set down for
hearing at 09h00 on 28 February 2013. The respondents legal practitioners were
served with the application on 28 February 2013 at approximately 08h30. The dispute
was referred to the Labour Commissioner and was lodged on 27 February 2013. The
gravamen of the applicants complaint was that the dispute referred to the Labour
Commissioner on 27 February 2013 (after it became clear on 25 February 2013 that the
respondent had every intention of continuing the disciplinary hearing, which was byagreement between the parties (on 5 February 2013) scheduled to take place on 28
February 2013)) related to whether disciplinary proceedings could be instituted against
the applicant in the first place, because the respondent inter alia failed to investigate or
lay charges in the time frame set out in its disciplinary policy and because the applicant
was charged with a number of offences not listed in the disciplinary policy. On the
papers it was clear that the applicant blew hot and cold on the respondent. It indicated
that the proceedings should be discontinued for the above reasons. The applicant then
requested information on what sanctions could be imposed in the event of a guilty
finding at the hearing on 22 February 2013. On 25 February 2013, after a response
from the respondents representatives, the applicant raised a dispute on the
interpretation and application of the disciplinary policy, and that the Labour
Commissioner would be approached for a determination. They also delivered a request
for further particulars to the charges in respect of the scheduled disciplinary hearing on
the same date, which particulars were provided on 27 February 2013 in the morning. On
27 February 2013 this dispute was referred to the Labour Commissioner followed by a
request for postponement of the hearing pending finalisation of the dispute. The
respondents representatives indicated that they would agree to the postponement if the
applicant agreed to the cessation of full pay and benefits relating to his suspension.
Instead of applying for a postponement of the hearing and setting out their questions,applicant approached the Labour Court for urgent interdictory relief.
Held, the applicant created his own urgency, alternatively failed to make out a case as
required by the Labour Court Rules. The applicant could have applied for a
postponement of the disciplinary hearing and set out the basis why the hearing
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should not continue. Instead it launched this application on less than one hours
notice.
Kamati v Namibia Rights and Responsibilities Incorporated (LC 1-2012) [2013]
NALCMD 1 (14 January 2013)
Summary: The Labour Court does not have jurisdiction to entertain a claim for unfair
dismissal and non-compliance with basic conditions of employment. In terms of section
38 of the Labour Act, 2007 (Act 11 of 2007), such a dispute may be referred to the
Labour Commissioner, who must, in turn, refer it to an arbitrator to resolve the dispute
though arbitration in accordance with Part C of Chapter 8 of the Act.
Kandukira v Shinguadja (LC 118/2011) [2012] NALCMD 8 (21 September 2012)
Summary: Applicant had referred a complaint in terms of Section 49(1)(d) of the Labour
Act 2007 to the Office of the Labour Commissioner based on the ground that a trade
union - the 2nd respondent in this application had committed an unfair labour practice
in that it had failed to fairly, diligently and in good faith represent its member the
applicant - a member of its bargaining unit - in respect of which the particular trade
union in question had been recognised - in arbitration proceedings. First respondent
declined the request for referral. Applicant then launching an application for the
reviewing and setting aside of such decision.
Held, Chapter 5 of the Labour Act 2007 recognises employee and trade union unfair
labour practices.
Held, Section 49 defines in what circumstances a trade union can perpetrate an unfair
labour practice.
Held Although Sections 49 (1)(a)(b) and (c) seem to relate only to unfair labour
practices perpetrated in the collective bargaining process not all categories of
unfair labour practices listed in the section have to arise in the context of
collective bargaining.
Held On the face of it - the definition of dispute contained in Section 1 which doesnot encompass disputes between a member of a trade union and a trade union,
clashes with the provisions of Chapter 5. To allow the definition to override the
clear provisions of Chapter 5 would lead to an absurdity as quite clearly the
legislature had intended a remedy for a party aggrieved by an employee and
trade union unfairlabour practice and it was for such purpose that the provisions
of Chapter 5 of the Act were enacted.
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Held, As the chapter expressly contemplates that an unfair labour practice can be
perpetrated between a union and its members it would lead to further absurdity if
any as such unfair labour practice could not be referred as a dispute to the
Labour Commissioner and would not be treated by him as such.
Held, Provisions of Section 49 (1)(d) as read with Section 51(1) accordingly affording a
remedy to an aggrieved member of a trade union in accordance with the
underlying purpose of the Act. The applicants referral of a dispute relating to the
non-compliance with- or a contravention by the second respondent of Section 49
(1)(d) thus competent.
Held, Once the requirements of Sections 51(1) and (2) had been satisfied it was
common cause that these pre-conditions had been met first respondent had to
act in terms of the obligations imposed on him by Section 51(3) and refer the
applicants lodged dispute to an arbitrator or conciliator to resolve the dispute
through arbitration or conciliation in accordance with part C of Chapter 8 of the
Labour Act.Held, A case for the review and setting aside of the first respondents decision
accordingly made out.
Mokwena vs Shinguadja (LC 52/2011) [2013] NALCMD 10 (28 March 2013)
Summary: Labour Law Arbitral award Application to review and set aside award in
terms of the Labour Act 11 of 2007, s 89(4) and (5) Court setting out the four
categories of judicial review in our law and concluding that review under s 89 of the
Labour Act is a category of judicial review governed by the Labour Act as the applicablelegislation Consequently, court holding that for the applicant to succeed the applicant
must prove the existence of one or more of the grounds set out in subsection (4), read
with subsection (5) of s 89 of the Labour Act Court holding further that an arbitration is
a tribunal within the meaning of Article 12(1)(a) of the Namibian Constitution.
Summary: Labour Law Arbitral award Application to review and set aside award in
terms of the Labour Act 11 of 2007, s 89(4) and (5), read, with rule 6(1) of the Rules of
the Labour Court Court holding that facts (or grounds) not set out in the notice of
motion not available to applicant during hearing Accordingly, submissions by counsel
(oral or written) during the hearing of application are not facts within the meaning of rule
6(1) of the Rules of the Labour Court and therefore should not be considered by the
court as such.
Namib Mills (Pty) Ltd vs Shigwedha (LCA 34/2012) [2013] NALCMD 6 (22 February2013)
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Summary: Labour law Arbitral award Appeal againstArbitrators conclusion is that
disciplinary hearing of employee was unfair based solely on arbitrators finding that
there was no proper interpreter who could speak employees mother tongue Court
rejected arbitrators conclusion on the basis that employee never complained to
chairperson of the disciplinary hearing that he did not understand the proceedings when
he pleaded guilty to three charges and not guilty to the rest of the charges Court
finding that two of the charges to which employee pleaded guilty are so serious that
employer was justified to dismiss Court held that there is no principle of our labour
that where employee is charged with more than one charge and only some of them are
proved against him or her, employee cannot be dismissed solely for that fact Court
finding that flagrant disregard for safety standards (charge 3) and leaving the workplace
without permission or authorization (charge 6) (which employee pleaded guilty to) are
very serious offences Court concluded that under charge 3 employee breached a very
important employees statutory duty under Chapter 4 of the Labour Act 11 of 2007 Court concluded that employer had a valid and fair reason to dismiss Consequently
court concluded therefore that employer satisfied the requirements of s 33(1) of the
Labour Act.
Summary: Labour law Appeal In terms of rule 17(25) of the Labour Court Rules
Interpretation and application Court satisfied with proof of service that notice of
hearing date, notice of set down and appellants counsels heads of argument were
properly served on respondent but respondent failed to appear in person or by counsel
Court decided appeal could be heard Court reasoning that rule 17(25) infuses a
sense of urgency and expeditiousness in the prosecution of appeals in the court andcourt ought not, unless good reasons exist, delay determination of an appeal which
delay might thwart appellants effort to prosecute appeal within the statutory time limit.
Rosh Pinah Zinc Corporation (Pty) Ltd v Murongo (LCA 36/2012) [2013] NALCMD 3 (24January 2013)
Summary: Employee employed as a loader driver As a result of a non-work related
accident, employee no longer capable of work as a loader driver Employer retained
employee in other temporary positions at his former salary New posts then created by
employer to accommodate employee but at a lower salary Employee declined to
accept appointment Employee then dismissed Finding by the court a quo that the
dismissal was unfair Employer appealed against the decision Held on appeal that
dismissal not unfair Appeal upheld.
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Schmitz Services CC vs Titus (LCA 44/2012) [2013] NALCMD 12 (16 April 2013)
Summary: Labour law Arbitral award Appeal against Employee charged with
misconduct of bursting into his principals office unceremoniously and negatively
interrupting a meeting between the principal and an invaluable client and pointing hisfinger at the client and calling him a liar for an incident that had occurred outside the
workplace Employee was dismissed after a disciplinary hearing Arbitrator found that
hearing was unprocedurally unfair and also that the employees guilt was not proved
Court rejected arbitrators findings because the evidence placed before arbitrator did not
account for the arbitrators finding Court therefore rejected arbitrators finding that the
dismissal is procedurally and substantively unfair Court concluded that on the facts
and in the circumstances of the commission of the misconduct the dismissal is fair
within the meaning of s 33(1) of the Labour Act 11 of 2007 Consequently court set
aside arbitrators order for payment by the employer of monetary compensation and
severance pay to the employee whose dismissal is fair.
Summary: Labour law Severance pay Payment to employee who separates from
his or her employment In the interpretation and application of subsection (1), read with
subsection (2), of s 35 of the Labour Act 11 of 2007 payment of severance pay does not
apply to each and every employee who separates from his or her employment In the
instance case the court held that since the employees dismissal for misconduct is fair
payment of severance pay does not apply to him in virtue of s 35(2) of the Labour Act.
The Minister of Education v The Interim Khomas Teachers Strategic Committee and AllPersons forming part of the Collective Body of the First Respondent (LC 166/2012)[2013] NALCMD 2 (23 January 2013).
Summary: Contempt of court Civil contempt Sentence Purpose of sentence not
merely punitive but to coerce offender to act in accordance with order of court Court
has duty to ensure respect for orders of court and promote proper administration of
justice Sentence should fulfill these duties Court finding that the 2 November 2012
order whose disobedience resulted in the contempt proceeding has now been obeyed
Court taking this and personal circumstances of the respondents and seriousness of the
contempt into account Court suspending sentence wholly.
Van Niekerk v MB Truck Spares (LC 72/2013) [2013] NALCMD 20 (20 June 2013)
Summary: Urgent application for stay of operation of the Arbitrators award pending the
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outcome of the appeal. Applicant not completing form LC 41 as prescribed by Rules
relating to the Conduct of Conciliation and Arbitration No appeal before Court. First
point in limine by respondent upheld and application dismissed.