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REPUBLIC OF NAMIBIA

IN THE LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

APPEAL JUDGMENT

CASE NO.:LCA 32/2015

In the matter between:

EAGLE WINGS CIVIL WORKS APPELLANT

And

ROBERT LEPONO 1St RESPONDENT

LABOUR COMMISSIONER 2NRESPONDENT

NONDUMISO MBIDI N.O 3RDRESPONDENT

CORAM:NDAUENDAPO, J

Neutral citation:Eagle Wings Civil Works v Lepono & 2 others(LCA 32/2015) [2016] NAHCMD 26 (8 July 2016)

Heard:9 June 2016

Delivered:8 July 2016

Flynote: Labour Law- Appeal- Arbitration award by the arbitrator- Appellants witnesses not allowed to testify-Administration of justice- Audi alteram partem rule-Fairness-Appeal allowed.

Summary:This was an appeal against an arbitration award of N$ 30 000 in favour of the first respondent for unfair dismissal.The appeal is based on the premise that the appellant was not giventhe opportunity to call its witnessesbecause, the arbitratorbelieved that such witnesses will not be of assistance in the determination of the issues in dispute before the arbitration tribunal.

Held, that arbitration tribunals established in terms of section 85(1) of the Labour Act 11 of 2007, are tribunals as contemplated in Article 12(1)(a) of the Namibian Constitution;

Held, that tribunals established by law, should afford all persons before them the right to a fair hearing and that as administrative bodies, such tribunals should act fairly, that is, they should inter alia allow all parties before them to adduce evidence to corroborate their case.

Held, that in the result, the arbitration award is set aside. The following order is made:

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ORDER

In the result, the arbitration award is set aside. In the premise, it is ordered:

  1. That the arbitrator’s award is set aside;
  2. That the matter is referred back to arbitration;
  3. That the arbitration proceedings should start de novo before a different arbitrator;
  4. That the parties be allowed legal representation(if they so desire) during the arbitration proceedings; and
  5. No order as to costs.

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JUDGMENT

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NDAUENDAPO, J

INTRODUCTION

[1] This is an appeal against an arbitration award granted in favour of the first respondent. The appeal is premised on the basis that the arbitrator had acted unfairly when he failed to hear the witnesses of the appellant during the arbitration proceedings.

BACKGROUND

[2] The first respondent instituted a claim for unfair dismissal and on 5 May 2015, the arbitrator issued an award. In terms of this award, it was held that the first respondent was unfairly dismissed from the appellant’s employment. The appellant was thus ordered to pay the first respondent N$ 30000, which is the sum of six months remuneration, which the first respondent would have received had he not been unfairly dismissed.

[3] The appellant appealed against this award of the arbitrator.

[4] Mr. Tjombe, counsel for the appellant filed detailed heads of argument and thus only addressed the court on two main issues, namely; a) the allegation that the first respondent was unfairly dismissed by the appellant and b) that during the arbitration proceedings, the third respondent, who was the arbitrator during the arbitration proceedings refused to hear the appellant’s witnesses. A reading of the records of the arbitration proceedings as well submissions made by Mr. Tjombe indicate, that the arbitrator’s decision was based on the fact that such witnesses would not be testifying on the issue of unfair dismissal.

FIRST GROUND OF APPEAL

[5] Mr. Tjombe for the appellant submitted that, the first respondent was not dismissed, let alone unfairly. Mr. Tjombe submits that an argument resulted between the appellant and the first respondent. The first respondent thereafter left the work premises. He had not returned to work for two weeks after the altercation and for the two weeks was marked absent. Mr. Tjombe however, concedes that the appellant did tell the first respondent to “F off”. Be that as it may, Mr. Tjombe further submitted that, the first respondent is not claiming constructive dismissal that is that the work conditions became so intolerable that he had to leave. The first respondent merely alleges that he was unfairly dismissed. This allegation of unfair dismissal was consistently denied by the appellant and this is clear from the record of the arbitration proceedings. The only witness who testified, the secretary of the employer was not present during the altercations and was unable to testify on the issue as to whether the appellant was indeed dismissed. She also testified that, for two weeks after the altercation between the employer and the appellant, the appellant did not show up for work and she marked him as absent. She could testify this because the employer had asked her to take a roll call of the employees present at work.

SECOND GROUND OF APPEAL

[6] The arbitrator refused to allow the appellant’s witnesses from testifying. The reason for this refusal, was based on the arbitrator’s believe that the witnesses could not have been able to testify on the allegations of unfair dismissal. Mr. Tjombe referring to pages 19- 24 of arbitration record, submitted that, taking into account how challenging it was for the appellant to articulate why he needed those witnesses as well as the fact that the appellant was unrepresented at the proceedings, ‘we do not know how [these] witnesses [would have] testified and say, well I was actually present at the altercation between these two people and this is what happened. We do not know any of that because one would see how the appellant struggled to articulate the need for those witnesses….’Mr. Tjombe submitted that although, these witnesses were not present at the time of the argument, they would have been able to testify that the first respondent was not an employee of the appellant for the seven years which the first respondent alleged. The witnesses would have testified on the issue of the duration of employment of the first respondent by the appellant, however since the parties were unrepresented during the arbitration proceedings, it is not clear that that would have been the only issue in respect of which they would have testified.

RELIEF SOUGHT

[7]The appellant wishes to have the matter referred back for arbitration by a different arbitrator and for such arbitration proceedings to start de novo. The relief sought was submitted to be premised on the principle of fairness

ISSUES

[8] What appear to be the issues, which the arbitrator had to determine, were firstly, whether the first respondent was unfairly dismissed? Secondly, whether the first respondent had in fact been in the employment of the appellant for seven years, prior to the alleged unfair dismissal?

[9] The issue before this court is thus whether in light of the given facts, the arbitrator’s decision to preclude the appellant’s witnesses to testify constitutes a violation of the appellant’s right to a fair administrative process and the right to fair trial? The issue of unfair dismissal is not for this court to decide, in light of the fact that some witnesses were not heard, it would be improper to make a determination on that issue. The failure to hear that issue will not prejudice the first respondent, nor the appellant. This court will thus only proceed on the issue of whether procedural fairness was observed during the arbitration proceedings.

APPLICABLE LAW

[10]Procedural fairness primarily is characterized by two maxims; the audialterampartem (hear the other side) and the nemoiudex in suacausa (no one should be a judge in his or her own cause).[1] It is the former which forms the subject matter of this court’s decision. Procedural fairness in the form of audialterampartem, gives one an opportunity to participate in the decisions that will affect them, thereby giving them the opportunity to influence the outcome of those decisions.[2] A decision maker can only consider himself to be fully and properly appraised of the facts of a case, if he has heard all the submissions and evidence of all persons who may be affected by his decision. You cannot condemn a person unheard. It is on the premise of the right to fair trial as guaranteed in the Constitution,[3] that procedural fairness and thus, the audialterampartem rule are now entrenched in the Namibian Constitution in its Article 18.

[11]InGovernment of the Republic of Namibia v Sikunda,[4]the lateO’Linn AJA as he then was, held that the Security Commission was an administrative tribunal and was thus subject to Article 18 of the Constitution. Furthermore, that [such administrative tribunals] must exercise administrative justice in a fair manner.[5]

[12]Section 85(1) of the Labour Act 11 of 2007, establishes arbitration tribunals, as contemplated in Article 12(1)(a) of the Namibian Constitution for purposes of resolving labour disputes.

[13] Article 12(1)(a) of the Namibian Constitution, guarantees the right to a fair hearing as follows:

‘In the determination of their civil rights and obligations or any criminal charges against them, all persons shall be entitled to a fair and public hearing by an independent, impartial and competent Court or Tribunal established by law:[emphasis]provided that such Court or Tribunal may exclude the press and/or the public from all or any part of the trial for reasons of morals, the public order or national security, as is necessary in a democratic society

[14]Furthermore, the Namibian Constitution guarantees the right to administrative justice in Article 18 as follows:

‘Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal.’

[15] In the Chairperson of the Immigration Selection Board v Elizabeth Frank and Another,[6] Strydom CJ, said that

‘This rule (i.e. audialterampartem rule) embodies various principles, the application of which is flexible depending on the circumstances of each case and the statutory requirements for the exercise of a particular discretion… In the absence of any prescription by the Act, the appellant is at liberty to determine its own procedure, provided of course that it is fair and does not defeat the purpose of the Act. Consequently the Board need not in each instance give an applicant an oral hearing, but may give an applicant an opportunity to deal with the matter in writing’.[7]

[16] In Namibia Bureau De Change (Pty) Ltd v Mwandingi NO,[8]Uietele J held that

‘[an] arbitrator must consider every complaint or application brought to his attention judiciously. Furthermore, that this duty to act judiciously imposes on the arbitrator the duty to treat the party before him fairly and in accordance with a fair procedure. This requirement for fairness finds its expression in the principles of natural justice, which dictate inter alia that a party affected by a decision must be afforded a fair hearing before a decision is taken. That an order contrary to the principles of natural justice is outside [the tribunal’s] jurisdiction and [thus] void’.[9]

[17] The right to be heard encompasses the right to present and to controvert evidence.[10] Whether the hearing be oral or not, a party thereto must be afforded the opportunity to present evidence to support his contentions and to challenge the evidence given against him.[11] This is in essence the very nature of a fair hearing as contemplated in Article 12(1) (a) of the Namibian Constitution.

APPLICATION OF THE LAW TO THE FACTS

[18]In casu, the appellant was denied the right to call witnesses to present evidence to corroborate his case and that was a clear violation of his Constitutional right to a fair hearing and on that basis alone, the award of the arbitrator cannot be allowed to stand. In the result, the arbitrator’s award is set aside and substituted with the following order:

1.That the arbitrator’s award is set aside;

2.That the matter is referred back to arbitration;

3.That the arbitration proceedings should start de novo before a different arbitrator;

4.That the parties be allowed legal representation (if they so desire) during the arbitration proceedings; and

5.No order as to costs

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GN NDAUENDAPO

JUDGE

APPEARANCES

ON BEHALF OF THE APPELLANT:Mr. Tjombe

Tjombeand Elago Inc.

ON BEHALF OF THE RESPONDENT:Mr. Bangamwabo

Clement Daniel Attorneys

[1]Hoexter, C. 2007. Administrative Law in South Africa. Cape Town: Juda & Co Ltd, p 326.

[2]Hoexter (2007:326).

[3]Article 12 of the Namibian Constitution.

[4] 2002 NR 203 (SC).

[5]Government of the Republic of Namibia v Sikunda 2002 NR 203 (SC) at 205.

[6] 2001 NR 107 (SCA).

[7]2001 NR107 (SCA) at 174.

[8] LCA (65/2013) [2014] NALCMD 31 (25 July 2014) delivered on 25 July 2014.

[9]Namibia Bureau De Change (Pty) Ltd v Mwandingi LCA (65/2013) [2014] NALCMD 31 ( 25 July 2014) delivered on 25 July 2014

[10]Baxter (1984:553).

[11]Baxter (1984:553).