Namibia Bureau De Change (Pty) Ltd V Mwandingi NO (LCA 65-2013) 2014 NALCMD 31 (25 July 2014)

REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: LCA 65/2013

In the matter between:

NAMIBIA BUREAU DE CHANGE (PTY) LTDAPPELLANT

and

PHILIP MWANDINGI N.OFIRST RESPONDENT

GRACE SHEDEGISECOND RESPONDENT

ANGELIQUE KASTOORTHIRD RESPONDENT

DEBITHE CLARKEFOURTH RESPONDENT

Neutral citation:Namibia Bureau De Change (Pty) Ltd v Mwandingi NO(LCA65/2013) [2014] NALCMD 31 (25 July 2014)

Coram:UEITELE, J

Heard:11 July 2014

Delivered:25 July 2014

Flynote:Labour Law – Appeal against entire arbitral award made in the absence of the appellant-Application for rescission- Application for rescission not heard-Section 88 of the Labour Act, 2007 (Act 11 of 2007).

Labour Law –Refusal to rescind an arbitration award made in the absence of one of the parties - Applicability of audi alteram partem principle.

Summary:This is an appeal against the entire ruling of an arbitrator made under s88 of the Labour Act, 2007 on 05 September 2013 under case number CRWK 865/12.

The second to fourth respondents were employees of the appellant. They were dismissed on 19 October 2012 by the appellant after a disciplinary process which had commenced on 11October 2012.

On 30 November 2012 the respondents, in terms of section 82 (7) and section 86 (1) of the Labour Act, 2007, referred the dispute of unfair dismissal to the office of the Labour Commissioner. The Labour Commissioner referred the dispute to the first respondent as the arbitrator. After conciliation failed the arbitrator arranged for an arbitration hearing on 16 July 2013. The appellant did attend the arbitration proceedings on that date and the arbitrator on 08 August 2013 handed down his award in favour of the respondents.

On 20 August 2013 the appellant lodged an application for the rescission of the award by the arbitrator dated 08 August 2013. The application for the rescission of the award was set in motion with a written applicationsupported by an affidavit to the arbitrator. The arbitrator on receiving the application and the affidavit took a decision not to rescind the award.

Held that the arbitrator when acting as such under the Labour Act, 2007 is a tribunal as envisaged by Article 12(1) (a) of the Namibian Constitution.The Labour Commissioner or an arbitrator must therefore, before arriving at any conclusion, consider any complaint or application brought to his attention judiciously.

Held further that the requirement to act judiciously imposes a duty on the arbitrator to treat a party before him fairly and in accordance with a fair procedure. The requirement to act fairly finds its expression in the celebrated principles of natural justicewhich dictates that a person who is affected by any decision or action must be afforded a fair and unbiased hearing before the decision or action is taken.

Held further that the arbitrator did not afford the appellant an opportunity (oral or written) to deal with the arbitrator’s versionof events of 16 July 2013. The failure by the arbitrator to do so is a violation of the audi alterm partem rule.

Held furtherthat an order made contrary to the principles of natural justice is outside jurisdiction and void.

ORDER

1.The decision (refusing to rescind an ward made on 08 August 2013) by arbitrator Mr Philip Mwandingi on 05 September 2013 under case number CRWK 865/12 is set aside.

2.The matter is remitted to the Labour Commissioner and the Labour Commissioner must refer the application to rescind the award made on 08 August 2013 for hearing to be conducted by an arbitrator other than Mr Philip Mwandingi.

3.There is no order as to costs.

JUDGMENT

UEITELE, J

BACKGROUND

[1]This is an appeal against the entire ruling of an arbitrator (the first respondent) made under s88 of the Labour Act, 2007[1](I will in this judgment refer to the first respondent as the arbitrator) on 05 September 2013 under case number CRWK 865/12.

[2]The background of the matter is as follows: The second to fourth respondents (I will in this judgment collectively refer to them as the respondents) were employees of the appellant. They were dismissed on 19 October 2012 by the appellant after a disciplinary process which had commenced on 11October 2012.

[3]On 30 November 2012 the respondents, in terms of section 82 (7) and section 86 (1) of the Labour Act, 2007, referred the dispute of unfair dismissal to the office of the Labour Commissioner by delivering a completed Form LC 21 and summary of the dispute. The LC 21 Form in the place that provided for the full names of applicant only reflects the following: Ms Grace Shedegi & 3 Others and was not signed by any of the respondents. The Form itself does not provide for the signature of the referring party but his or her representative (‘Representative of the applicant’). The respondents’representative’s name was inserted on the Form where provision is made for the printed name and signature of a representative of a referring party.

[4]The Labour Commissioner referred the dispute to the first respondent as the arbitrator. As the dispute had not been conciliated, the arbitrator was required under s86 (5) to attempt to resolve the dispute through conciliation before proceeding with the arbitration. The matter was postponed on a few occasions and conciliation took place on 14 February 2013 without success. There were a few further delays and the arbitration eventually proceeded on 16 July 2013.

[5]On 16 July 2013 the appellant was not present at the arbitration proceedings. The arbitrator then telephoned the appellant’s offices and spoke to a female person, who indicated that the appellant was aware of the scheduled arbitration proceedings of that day. A certain Mr Hans Thiemann of the appellant than also telephoned the arbitrator back to inform him that he was unable to attend the arbitration proceedings on that date.

[6]As I indicated above the arbitration proceedings proceeded in the absence of the appellant. On 08 August 2013 the arbitrator handed down his award. In the award the arbitrator amongst others stated that:

‘It is important to place it on record that both parties were properly notified and knew about the scheduled Arbitration proceedings which was due to take place on the 16th July 2013 at 9h00. The respondent failed to show up and I then tried to find out why no one on their behalf was in attendance. It became obvious that the Respondent knew and was aware of the scheduled Arbitration proceedings and simply decided not to attend the scheduled arbitration proceedings … No valid reasons were provided by the respondent for not attending apart from saying he was busy with other things. This resulted in a situation where it forfeited an opportunity to hear the allegations being made by the three applicants, and most importantly, to give their side of what really happened. As a result, whatever the applicant has stated before me went unchallenged and I will make use of it in deciding this case.’

[7]On 20 August 2013 the appellant lodged an application for rescission of the award by the arbitrator dated 08 August 2013. After receiving the application for rescission the arbitrator on, 05 September 2013 addressed a letter to the appellant. The letter in material terms provides as follows:

‘RE: APPLICATION FOR RESCISSION OF AWARD: NAMIBIA BUREAU DE CHANGE V GRACE SHEDEGI & 2 OTHERS

1This serves to acknowledge receipt of your application for rescission in the above matter.

2I have carefully gone through your Application and unfortunately could not find any valid explanations as to why you failed to attend the scheduled proceedings.

3It is also very clear that you were duly notified and knew about the scheduled proceedings but simply opted not to attend.

4It is also very clear that I have personally spoken to you that morning and you clearly indicated that you will not come because apparently the other time you were here and either the arbitrator or the party was not present. I have clearly explained what the consequence of your refusal/failure to attend could lead to.

5It is with regret that I have to inform you that I see no need to reverse or rescind my Award already issued and my decision subsequently still stands.’

[8]It is against the above ruling that the appellant appeals. The appellant listed four different grounds of appeal. In view of the conclusion that I have arrived at in this matter I do not find it necessary to deal with the grounds of appeal.I find it appropriate to make the following remarks as I am of the view that these remarks will dispose of this appeal.

[9]Article 12 (1)(a) of the Namibian Constitution provides as follows:

‘Article 12 Fair Trial

(1)(a)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: 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 democraticsociety.’

[10]In my opinion the arbitrator when acting as such under the Labour Act, 2007 is a tribunal as envisaged by Article 12(1) (a) of the Constitution[2]. There is thus no doubt that an arbitration under the Labour Act, 2007 is a tribunal. The hallmark of arbitration is that it is an adjudicative process. As arbitration is a form of adjudication the function of an arbitrator and the Labour Commissioner is not administrative but judicial in nature. The Labour Commissioner or an arbitrator must therefore, before arriving at any conclusion, consider any complaint or application brought to his attention judiciously.

[11]The requirement to act judiciously imposes a duty on the arbitrator to treat a party before him fairly and in accordance with a fair procedure. The requirement to act fairly finds its expression in the celebrated principles of natural justicewhich dictates that a person who is affected by any decision or action must be afforded a fair and unbiased hearing before the decision or action is taken. The principles of natural justice are expressed in the Latin maxims of audi alteram partem (hear the other side)and nemo iudex in propia causa (no one may judge in his own cause). Baxter[3] explains the operation of the principle as follows:

‘The principles of natural justice are flexible. The range and variety of situations to which they apply are extensive. If the principles are to serve efficiently the purposes for which they exist it would be counterproductive to attempt to prescribe rigidly the form which the principles should take in all cases.’

[12]The flexibility of the principles of natural justice was articulated as follows by our Supreme Court in the matter of Chairperson of the Immigration Selection Board v Frank and Another[4]where Strydom,CJ said:

‘This rule (i.e. audi alteram partem 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.’

[13]Baxter[5] further argued that a fair hearing need not necessarily meet all the formal standard proceedings adopted by courts of law but any individual who will be affected by a decision or action must be afforded a fair opportunity to present his or her case. In the South African case of Heatherdale Farms (Pty) Ltd and Others v Deputy Minister of Agriculture and Another[6] Colman, J said:

‘It is clear on the authorities that a person who is entitled to the benefit of the audi alteram partem rule need not be afforded all the facilities which are allowed to a litigant in a judicial trial. He need not be given an oral hearing, or allowed representation by an attorney or counsel; he need not be given an opportunity to cross-examine; and he is not entitled to discovery of documents. But on the other hand (and for this no authority is needed) a mere pretense of giving the person concerned a hearing would clearly not be a compliance with the Rule. For in my view will it suffice if he is given such a right to make representations as in the circumstances does not constitute a fair and adequate opportunity of meeting the case against him. What would follow from the last mentioned proposition is, firstly, that the person concerned must be given a reasonable time in which to assemble the relevant information and to prepare and put forward his representations; secondlyhe must be put in possession of such information as will render his right to make representations a real, and not an illusory one.’ (Italicized and underlined for emphasis)

[14]I turn now to the facts of the present case which have a bearing on the application of the audi alteram partem rule.In the present matter the Labour Act, 2007 and the Rules Relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner[7]do not prescribe the form that an arbitrator must follow where a party applies for the rescission of an arbitration award. Section 88 of the Labour Act, 2007 in material terms reads as follows:

‘88Variation and rescission of awards

An arbitrator who has made an award in terms of section 86(15) may vary or rescind the award, at the arbitrator's instance, within 30 days after service of the award, or on the application of any party made within 30 days after service of the award, if-

(a)it was erroneously sought or erroneously made in the absence of any party affected by that award;

(b)it is ambiguous or contains an obvious error or omission, but only to the extent of that ambiguity, error or omission; or

(c)it was made as a result of a mistake common to the parties to the proceedings.’

[15]It is furthermore so that in the present matter the application for the rescission of the award was set in motion with a written application to the arbitrator, the application was supported by an affidavit. The arbitrator on receiving the application and the affidavit took a decision not to rescind the award, the decision not to rescind the award was taken on the basis of his (the arbitrator’s) version of the events that took place on 16 July 2013, he did not afford the appellant an opportunity (oral or written) to disabuse him of that version.Even if it is argued that oral proceedings and personal presence of the appellant was not required as a necessary aspect of natural justice, I am of the view that the least (as an elementary requirement of natural justice) that the arbitrator should have done was to depose to an answering affidavit and to give the appellant an opportunity to deal (by means of a replying affidavit) with the arbitrator’s version of events.The failure by the arbitrator to do so (i.e. to give the appellant an opportunity to deal with the arbitrator’s version of events of 16 July 2013) is a violation of the audi alterm partem rule.

[16]I am thus of the view that the arbitrator has failed to appreciate his role and responsibilities. The approach taken by the arbitrator is inconsistent with an adjudicative process and a clear negation of the applicant’s right to a fair hearing enshrined in Article 12(1) (a) of the Namibian Constitution. Not only has the arbitrator failed to afford the appellant an opportunity to be heard, he also acted as a judge in his own cause. Parker C[8] argues that an order made contrary to the principles of natural justice is outside jurisdiction and void he said ‘a clear violation of natural justice will in very instance, violate an order and no room for judicial discretion as to whether to set it aside can, in such circumstances exist.’

[17]For the reasons and conclusions that I have advanced in this judgment, the appeal succeeds; and in the circumstances it is fair and reasonable to remit the matter to the Labour Commissioner. In the result, I make the following order:

1.The decision (refusing to rescind an wardmade on 08 August 2013) by arbitrator Mr Philip Mwandingi on 05 September 2013 under case number CRWK 865/12 is set aside.

3.There is no order as to costs.

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S Ueitele

Judge

APPEARANCES

APPELLANT:Mr J Boltman

Of Köpplinger Boltman Legal Practitioners,

Windhoek

RESPONDENT:Mr N Tjombe

Of Tjombe-Elago Law Firm Inc

Windhoek

[1]Act 7 of 2011.

[2]See s85(1) & (2) of the Labour Act, 2007 which reads as follows:

‘85Arbitration

(1)There are established, as contemplated in Article 12(1)(a) of the Namibian Constitution, arbitration tribunals for the purpose of resolving disputes.

(2)Arbitration tribunals operate under the auspices of the Labour Commissioner, and have jurisdiction to-

(a)hear and determine any dispute or any other matter arising from the interpretation, implementation or application of this Act; and

(b)make any order that they are empowered to make in terms of any provision of this Act.’

[3]Baxter Lawrence, Administrative Law(1984) at 541.

[4]2001 NR 107 (SC) at 174.

[5]Supra (footnote no. 3).

[6]1980 (3) SA 476 (T).

[7]GovernmentNotice 262 in Government Gazette No. 4151 of 31 October 2008.

[8]In Labour Law in Namibia,Unam Press (2012) at 154-155.