1
NOT REPORTABLE
REPUBLIC OF NAMIBIA
LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
CASE NO.: LCA 5/2016
In the matter between:
NAMWATER APPELLANT
and
MATHEW NELENGERESPONDENT
Neutral citation:NamWater v Nelenge (LCA 5-2016) [2016] NALCMD 30 (29 July 2016)
CORAM:VAN WYK, ACTING
Heard:13 May 2016
Delivered:29 July 2016
Flynote:LABOUR LAW –s 86 (7) of the Labour Act 11 of 2007, –Rule 18 of the Rules relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner: Labour Act, 11 of 2007- arbitration proceedings may be conducted in a flexible manner with lesser legal formalities – s 30 (3) and (4) of the Act - notice upon resignation must be expressly stated in writing.
Summary: In this dispute, the respondent resigned from employment by way of a single line in his resignation letter, simply announcing his resignation. The question to determine was whether that constituted notice of resignation in terms of s 30 (3) and (4) of the Act. Did the act of resignation, in itself, call the applicable notice period in his contract and the Labour Act into effect?
The letter was found to merely tender resignation, it did not constitute notice to the appellant, of the number of days the respondent intended to work after tendering his resignation. In the absence of stating the notice period in writing, or making reference to the applicable period in the contract or the Act, there was no indication given that respondent intended to work notice.
Held that arbitrator made a finding contrary to s30 (3) and (4) of the Act, in assuming that his resignation in itself, called the applicable notices into effect.
Held that the arbitrator erred in law and the appeal is granted.
ORDER
- The appeal is granted.
- The arbitration award in respect of the order to appellant to pay the respondent N$45,389,40.00in lieu of notice for the period of 12 November 2014 to 12 December 2014, is hereby set aside.
- No order as to costs is made.
JUDGMENT
VAN WYK, AJ
BACKGROUND
[1]This is an appeal against the award of an arbitrator, given on 28 December 2015, incase number CRWK 244-15.
[2]The respondent was employed by appellant in a managerial capacity for the period 2009 to November 2014. Respondent was suspended from his employment on 18 September 2014, and he tendered his written resignation on 14 November 2014. He referred a dispute to the Office of the Labour Commissioner on 30 March 2015, indicating the nature of the dispute as unfair dismissal and unfair labour practice. The matter was heard on 13 August 2015 at the Office of the Labour Commissioner in Windhoek.
[3]At the hearing of the appeal the parties narrowed the dispute down to only one of the orders made by the arbitrator in her award. The arbitrator determined that the appellant is liable to pay the respondent N$45,389,40.00in lieu of notice for the period of 12 November 2014 to 12 December 2014.
[4]The legal question to be determined by this court is whether the arbitratoracted within her powers when she granted the said order, given that this matter was referred to the Office of the Labour Commissioner as a complaint of unfair dismissal and unfair labour practice. Secondly,whether the arbitrator made a sound legal determination in reaching the conclusionregarding the payment in lieu of notice as above stated.
[5]Appellant submitted that an award for payment of remuneration of one month in lieu of notice cannot in law equate to a finding that the appellant committed an unfair labour practice. The appellantcontended that the arbitrator made an order not supported by either of the causes identified in the LC21, that is, unfair dismissal and unfair labour practice. For that reason, the arbitrator acted ultra vires her authority in granting the award, and the award is thus a nullity.
[6]Respondent submitted that the first ground of appeal is unduly formalistic and not consistent with the powers of the arbitrator in terms of the Labour Act, which is to conduct the arbitration proceedingsin a flexible manner. In respect of this ground of appeal, I find the respondent’s contention convincing. Section 86(7) provides as follows:
‘Subject to any rules promulgated in terms of this Act, the arbitrator may-
(a)may conduct the arbitration in a manner that the arbitrator considers appropriate in order to determine the dispute fairly and quickly; and
(b)must deal with the substantial merits of the dispute with the minimum of legal formalities.’
[7]Rule 18 of the Rules relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner: Labour Act, 11 of 2007, dealing with the conduct of arbitration proceedings provides as follows:
‘(1)The arbitrator must conduct the arbitration in a manner contemplated in s 86(7) of the Act and may determine the dispute without applying strictly the rules of evidence.’
[8]My interpretation is that neither Rule 18 nors 86 (7) aresupportive of an unduly formalistic approach in the determination of dispute during arbitration. In the decision of Muller, AJ, in Roads Contractor Company v Nambahu and Others 2011 (2) NR 707,Irespectfully found support for this view regarding the conducting of arbitrations when he stated:
‘[30]Most of the claimants in labour disputes are lay persons. They are seldom legally represented at the initial forum, the labour arbitration tribunal. In most of these matters the employer is represented by an employee, often involved in human relations at the employer’s firm. The aim of the labour tribunal hearings is therefore not to require the strict procedure of a court of law, but rather to make it more flexible. In that way laypersons without legal training can bring their claims and disputes before the arbitration tribunal for adjudication by an independent and impartial arbitrator.’
[9]Not following an unduly formalistic approach in conducting arbitration proceedings was also confirmed in the decision of Purity Manganese (Pty) Ltd,v Katjivena and Others 2015 (2) NR 418.[1]In addition thereto, a similar view was expressed by Mainga, JA in the National Housing EnterprisevHinda-Mbazira NASC (SA 42-2012) 4 July 2014,(the National Housing Enterprise case) when he stated:
‘[34] I interpose here to say, the back and forth of dispute resolutions defeats the purpose of resolving disputes expeditiously. In terms of s 86(7)(a) and (b) an arbitrator is obliged to determine the dispute before him or her in a manner that the arbitrator considers appropriate and expeditiously and with the minimum of legal formalities. In as much as I accept that s 86(7) is not a carte blanche to an arbitrator to ignore the rules of evidence, in actual fact s 86(8) – (18) suggest how the arbitrator should conduct a dispute before him or her. Courts of law, to borrow the words of Lyster AJ, will have to understand that, ‘’the sorts of people who are called on in industry, commerce and government on a daily basis to conduct disciplinary inquiries are departmental heads, managers and IR officers. They are not legally trained and they are of necessity dispense an informal and robust form of justice which is tolerated within the parameters of our law system. One of the primary reasons why this is tolerated and indeed tolerable is because the LRA has numerous provisions which allow the disaffected employees to pursue his/her rights further, to the CCMA, bargaining council, the Labour Court and the Labour Appeal Court.’[2]
[10] My application of this more flexible approach in conducting of arbitration proceedings, so confirmed in the above stated decisions, in the current matter is the following. The LC21 read with the Summary of Dispute in a labour dispute referral, is aimed to define the cause of action and the relief claimed. It has the equivalent function of a pleading and prayer for relief in normal court procedure. The appellant’s contention is thus that the relief claimed is not consistent with the cause of action and that the arbitrator has hence granted relief that cannot in law be equated with the causes of action, as stipulated in the LC21.
[11]Thepowers of the arbitrator in s 86 (7) leans toward a flexible approach wide enough to allowher to deal with the substantial merits of the dispute with the minimum amount of legal formalities. One must also have regard that the LC21 provides the complainant with a number of choices; it does not encourage a free formulation or ventilation of the dispute on the form. It rather encourages the complainant to attempt to fit the dispute into a box. If the lay person then fitted the complaint into one of the indicated boxes, and it is not entirely befitting, the option remains for the complainant, to properly ventilate the cause of action in the Summary of Dispute and to ask for the relief claimed. In this matter I found that respondent has done that in his Summary of Dispute. The relief of awarding payment in lieu of notice was properly stated as one of his alleged entitlements in the Summary of Dispute.[3]
[12] I thus find that the arbitrator was competent to hear the dispute on the basis of the LC21 read with the Summary of Dispute, acting fullywithin her flexible powers ‘to deal with the substantial merits of a dispute with the minimum legal formalities.’[4]
[13]The second attack on the validity of the arbitration award on appeal was that the arbitrator did not make a competent finding of fact when she determined that the appellant waived notice, and is hence liable to pay respondent N$45,389,40.00in lieu of notice for the period of 12 November 2014 to 12 December 2014. Hence, there is no reasonable foundation for her finding and hence it constitutes a defect in law in the award.
[14]In this regard I was referred to s 89 (1) (a), which provides that a party to a dispute may appeal against an arbitrator’s award only on a point of law, not on a point of factual determination by the arbitrator.
[15] I will now proceed to consider the validity of the arbitration award in respect of the payment in lieu of notice, in the light of the factual matrix and applicable law in this matter.
[16]On 16 October 2014, the appellant issued the respondent with a notice for a disciplinary hearing to be conducted on 24 October 2014. The hearing was subsequently postponed to 12 November 2014. Meanwhile, on the morning of 12 November 2014, respondent, in the face of the commencement of a disciplinary hearing in the afternoon of the same day, tendered his written resignation from the employment of the Appellant in the following terms:[5]
‘Dear Dr Shivute
RE: NOTICE OF TERMINATION
I herewith tender my resignation from NamWater.
Yours faithfully
MATHEW NELENGE’
[17]Appellant responded to accept the resignation ‘with immediate effect’ and informed respondent ‘to make contact with the Manager Risk and & Safety’ on ‘13 November 2014, for facilitation of his exit from NamWater.’[6]
[18] In argument of the appeal, both counsel petitioned their respective interpretations of the resignation letter of respondent. Appellant’s interpretation of the resignation letter was that the respondentdid not tender notice and resigned with immediate effect to avoid being subjected to disciplinary proceedings.Hence respondent was not offering to work the notice period required in terms of his contract ands 30 (1) (c) of the Act, and hence appellant accepted his resignation without notice – thus with immediate effect.
[19] Respondent contended that he resigned on the morning of 12 November 2014 as per his letter dated same, without any indication that he is not available to work the notice period required in terms of his contract and s 30 (1) (c) of the Act.It was in fact appellant, at 14h31 the same afternoon, in their emailed communication,[7]whowaived its right to notice, in that appellant informed respondent to discuss his exit with the Manager: Risk and Safety the next day.
[20]The said resignation letter was already considered in evidence by the arbitrator in this regard; the question before this court is what the finding of the arbitrator was with regards to this resignation letter, and whether that finding was sound in law.
[21]The finding of the arbitrator in this regard is stated as follows:
‘Applicant in his letter of resignation never intended to resign with immediate effect and it is evident from the CEO’s letter that they wanted applicant to resign with immediate effect.’
The contract of employment as well as the labour Act is very clear as to how and when payment in lieu of notice must be paid.[8]
[22]She thus interpreted the above stated resignation letter of respondentto have given notice, when she says he ‘never intended to resign with immediate effect.’
[23]The letter is a one liner, with a heading ‘Notice of Resignation’, but the content thereof is not giving a single day notice to the appellant. It is in fact only ventilating the tendering of respondent’sresignation.
[24] It is my respectful view that the respondent did not give notice in this letter. He tendered his resignation. In terms of s 30 (3) ‘notice of termination must be given in writing’, whilsts 30 (4), provides ‘Despite subsection (3), an illiterate employee may give notice orally’.
[25]My understanding of the ordinary meaning of the s 30 (3) and (4) of the Act, is that notice of termination of an employment relationship by the employee must be expressly done. An employee who is illiterate may do so orally, but the respondent is literate, he should have done it in writing and I fail to see a notice period stated in his resignation letter. The letter only tenders his resignation; he left the aspect of stating the notice period he is prepared to work upon resignation open;it appears that he chose not to address the subject matter of a notice period in his resignation letter.
[26]In the premises, the finding of the arbitrator that ‘he never intended to resign with immediate effect’,is a finding not sound in law, as it assumes that the notice of termination of employment can be done by implication.In his resignation letter respondent left the aspect of a notice period open and she read that omission to mean, that he meant that the requirements of the provision of the due notice in the employment contract and the Labour Law automatically applies to his situation:
‘Applicant in his letter of resignation never intended to resign with immediate effect …. The contract of employment as well as the labour Act is very clear as to how and when payment in lieu of notice must be paid.’[9]
[27]I find that this is an incorrect legal finding by the arbitrator. Sections 30 (3)of the Act, specifically requires writtennotice of termination in the case of a literate person such as the respondent. Hence,in addition to him tendering his resignation, he ought to have given due notice as per his employment contract and/or the Labour Law. He was obliged to deal with the aspect of notice specifically in his resignation letter, either stating the number of days, or to at least have referred to the applicable contractual provisions, or the applicable references to the Labour Law, in his letter of resignation.He evidently did not do that.
[28]It follows that the arbitrator’s award regarding the payment in lieu of notice to respondent in the amount of N$45,389,40.00, was not sound in law, and hence susceptible to be a ground of appeal in terms of s 89 (1) (a)of the Act.
[29] I thus make the following order:
(1)The appeal is upheld.
(2)The arbitration award in respect of the order to appellant to pay the respondent N$45,389,40.00in lieu of notice for the period of 12 November 2014 to 12 December 2014, is hereby set aside.
(3)There is no order as to costs.
------
L VAN WYK
ACTING JUDGE
APPEARANCES:
APPELLANT:R Philander
ENSAfrica ǀ Namibia
(incorporated as LorentzAngula Inc.)
RESPONDENT:K Klazen
Ellis Shilengudwa Inc. (ESI)
[1]Paragraph 31
[2]Chamane v The Member of the Executive Council for Transport, Kwazulu-Natal & Others [2000]10 BLLR 1154 (LC) at 1160 C-D
[3]Page 5 of the record of arbitration proceedings
[4]S 86(7)(b)
[5]Page 30 of the record
[6]Page 31 of the record
[7] Page 31 of the record
[8]Page 619, paragraphs 118 – 119 of the record
[9]Paragraph 119 of the record