1
REPUBLIC OF NAMIBIA
LABOUR COURT OF NAMIBIA, WINDHOEK
JUDGMENT
In the matter between:
CASE NO.: LCA 4/2015
THE COUNCIL OF GROOTFONTEIN MUNICIPALITY APPELLANT
and
HERMANUS GAWASEB RESPONDENT
Neutral citation:The Council of Grootfontein Municipality v Gawaseb (LCA 4-2015) [2016] NAHCMD 23 (31 MAY 2016)
CORAM:VAN WYK, ACTING
Heard:18 March 2016
Delivered:31 May 2016
Flynote: LABOUR LAW – Labour Act 11 of 2007 – Provisions of s.86 (2)(b) of the Labour Act are peremptory –Time limit in s 86 (2) (b) aimed at expeditiously bringing finality to disputes in the employment arena.
Summary: In this dispute the respondent, an adult male, was at all relevant times and still is, an employee of the appellant, appointed as a qualified artisan (a motor mechanic) in 2002, and graded C2 in terms of the Patterson Grading System as adopted by the appellant in 2006. Upon the adoption of the Patterson Grading System in 2006, appellant implemented a number of remuneration adjustmentsin the organization.
The respondent was dissatisfied with the outcome of the said remuneration adjustments in that his salary was not increased to the desired level during this exercise. He raised his verbal disagreement as early as December 2006.
No evidence of written exchanges with the appellant could be produced, pertaining to the period of 12 months after the implementation of the increments. It was found that the time period to make a competent referral in terms of s 86 (2) (b) lapsed at best in December 2007, 12 months after the respondent first confirmed his knowledge of the remuneration increments not applying to him, and raised his verbal discontent therewith.
Held that provisions of s 86 (2) (b) are peremptory. The respondent did not formally raise his disagreement with the appellant in the first 12 months following the time he became aware of the increments.
Held that s 86 (2) (b) has a strong foundation of public interest with reasons aimed at bringing finality to disputes in the employment arena expeditiously.
Consequentlythe appeal is upheld,the arbitration award is set aside;there is no order as to costs.
ORDER
- The appeal is upheld.
- The arbitration award, with case number NEGR 56-2014,made on 15 January 2015 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 15 January 2015.
[2]The appellant is a local authority established under the Local Authorities Act, 23 of 1992. The respondent, an adult male, was at all relevant times, and still is, an employee of the appellant, appointed as a qualified artisan in 2002, and graded as C2 in terms of the Patterson Grading System,as adopted by the appellant in 2006.
[3]In November2006[1] the appellant implemented the Patterson Grading System and passed a number of resolutions to approve salary adjustments in respect of certain individuals in the organization of the appellant.The respondent was one of the employees that did not receive the desired salary increase during this exercise. Also in the grading of C2, were his two fellow employees, Mr. Harakuta and Mr. Cloete. Both were male plumbers with a longstandingservice record with the appellant. Mr. Harakuta was a formerly disadvantaged employee; Mr. Cloete was not. During the grading exercise, the salary of Mr. Harakuta was adjusted to the same level as that of Mr. Cloete to redress past imbalances based on race, given that both men performed exactly the same employment functions and duties for the appellant, as plumbers in the town of Grootfontein.
[4]The respondent contended that due to his similar C2 grading, he is entitled to receive the same increment as Mr. Harakuta, so that his salary too, be adjusted to the same level as that of Mr. Cloete. This is notwithstanding his significantly shorter employment history with the appellant and the fact that he is a motor mechanic and not a plumber.
[5]Respondent verbalized his disagreeing viewsand discontent as early as December 2006[2], shortly after the Patterson Grading System was implemented. However, no evidence of any formal exchanges on the matter between appellant and respondent was produced for the period of 12 months immediately following the implementation of the increments.
[6]Respondent referred a dispute to the Labour Commissioner in February 2012. The referral commenced a process of internal discussions between the parties, and on the 18th of June 2014, the appellant finally pronounced itself in writing - denying the claim of the respondent.
[7]The matter went on arbitration under case number NEGR 56-2014, and an award was made on 15 January 2015 in favour of the respondent in the amount of N$ 414 633,15.
[8]In argument the parties narrowed their contentions down to two main points -(1) lack of competence of this court in terms of s 86 (2) (b)to hear this matter and (2) a claim based ondiscrimination. Following below I deal with the first point of lack of competency.
Section 86 (2) (b)
[9]The appellant submitted that the respondent’s right to referral to arbitration lapsed in December 2007, and that the arbitrator did not have jurisdiction to entertain respondent’s claim in terms of s 86(2)(b). The section in materialpart provides as follows:
‘(1)(a) Unless the collective agreement provides for referral of dispute to private arbitration, any party to a dispute may refer the dispute in writing to -
(a) the Labour Commissioner; or
(b) any labour office.
(2)A party may refer a dispute in terms of sub-section 1 only -
(a)within six months after the date of dismissal, if the dispute concerns dismissal, or
(b)within one year after the dispute arising, in any other case.’
[10]Appellant never raised the issue of lack of competency based on the prescription of the referral time in terms of s 86(2)(b), (the prescription claim) in the arbitration proceedings. Counsel for the appellant first raised the prescription claim requesting the court to entertain it on appeal. His submissions were that a lapse in the referral timein terms of s 86 (2) (b) is a fundamental shortcoming; it goes to the root of the arbitrator’s competency to hear the matter. The following authority for this position was offered:
‘Mr Coleman now submits in his supplementary heads and in this court that the arbitrator, being a creature of statute, derives his jurisdiction from the provisions of the Labour Act, No. 11 of 2007 (the Labour Act) and consequently did not have the jurisdiction to hear and adjudicate on a dispute relating to promotion. The submission, as I understand it, therefore is that on that ground alone the appeal must succeed. Mr Tjitemisa’s counter argument in that regard is that this is a new point which was not raised before the arbitrator and although the appeal against respondents “promotion” is a ground of appeal in the amended notice of appeal, it is a new point of law and cannot be entertained now.
[11]I disagree with Mr Tjitemisa’s submission that this point cannot be raised now. It is clearly a legal point and goes to the root of the arbitrator’s jurisdiction to hear and adjudicate an issue like promotion. I shall consequently consider Mr Coleman’s argument and determine whether it has any merit.’[3]
[11]I respectfully accept the reasoning of Muller AJ on this point in the case of Standard BankNamibiastated above. The jurisdiction claim raised on appeal in the Standard Bank Namibiacase is that of a dispute of interest, and not of prescription, but in my respectful view the principle set down in the case by Muller AJ, can be applied with equal force to a jurisdiction claim based on prescription.The arbitrator’s jurisdiction over any dispute is a creation of statute, and if a lack of jurisdiction is raised, it is indeed a very fundamental legal point that must be considered, because if successfully raised, it renders the arbitration award anullity.
[12]Moreover, if jurisdiction was not raised during the informal and relaxed legal proceedings in an arbitration process, a process designed to expedite justice between the parties, this court cannot disqualify a party raising a jurisdiction claim on appeal in the Labour Court for the first time. I find support for my view in the National Housing EnterprisevHinda-Mbazira NASC (SA 42-2012) 4 July 2014,(the National Housing Enterprise case) where Mainga JApaused to explain the limitations of the labour arbitration system in his judgment:
‘[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.’[4]
[13]For the foregoing reasoning, I think itis fair to say that the forum of arbitration is indeed an‘informal and robust form of justice which is tolerated within the parameters of our law system.’One of the primary reasons why this can be tolerated is because the Act allows a party to pursue his rights furtherto the Labour Court, as the appellant is herewith doing.This court is thus inclined to entertain the claim of lack of competency as it is currently raised on appeal and I now proceed to do so.
Prescription
[14]The November 2006 - resolution approving the salary adjustments was implemented as of 1st of December 2006,[5]- that was the time the respondent realized that Mr. Harakuta is earning more than him, and that aggrieved him.He conceded during cross-examination in the arbitration proceedings that he started his internal complaints in this matter as early as 2006:[6]
‘when in 2006 the case start I was not going to the labour court to address this issue. I first address with my employers. And after my employers cannot satisfied me I come to the, I come to the labour office.’
[15]Despite the fact thathe was aggrieved as far back as December 2006, he filed his dispute with the Labour Commissioner in February 2012, five years later.
[16]I will now consider the law as stated in the matter of the National Housing Enterprise case. In this matter supreme court judgment Mainga JA, upheld the views of Parker J, that the time limit referred to in s. 86(2)(a), ‘begins to run after all reasonable steps including disciplinary hearing and subsequent appeal (i.e domestic remedies) have failed to resolve or settle the dispute.’ However, I am of the considered opinion that on the facts the current matter must be distinguished from the National Housing Enterprise casein so far asthat case dealt with referral in terms of s 86(2) (a), “within six months after the date of dismissal, if the dispute concerns dismissal”. The internal remedies thatwere referred to therewere disciplinary proceedings and an internal appeal, linked to dismissal.
[17]In the case under scrutiny, the dispute did not concern dismissal, hence the internal remedies for dismissal are not applicable.However, I still consider myself bound to reflecton the presence of available internal remedies in the circumstances of the current case, being a s. 86 (2) (b) referral. Were there indeed possible reasonable steps to be taken before filing a complaint at the Office of the Labour Commissioner in the current matter? Was there indeed internal remedies available, and at what stage during this process of 5 years were those remedies exhausted.
[18]The record of arbitration does not reflect any evidence of a formal written complaint or written grievance in terms of a grievance procedure.Neither does it reflect an acknowledgementon the side of the appellant that the grievance is being investigated and is to be heard.It is not giving any indication of an ongoing internal process which might have,within bounds of reason and the circumstances of the case, suspended the running of the time period stated for referral in section 86(2)(b).‘Within one (1) year after the dispute arising in any other case.’
[19]The record[7] refers to a recommendation from the Human Resource Department in March 2014, informing appellant ‘that Mr. Gawaseb’s problem was from 2007’. This recommendation was made in 2014 subsequent to the referral of the respondent’s complaint in February 2012. It is not stating that a formal grievance was filed to which appellant was attending at any stage. My respectful finding is that this reference to “the problem in 2007” – was a reference to the verbal complaints of the respondent regarding the matter. The recommendation itself is attached to the record[8], andas it stands, it offers no indication of an ongoing internal exchange between the parties in 2007 – on the contrary, it confirms my thinking that the respondent’s verbal complaints felt on death ears in that year.
[20]In the arbitration proceedings, counsel for the applicant, herein the respondent, lead evidence in chief[9] that the first written complaint was received in 2008 during the evidence of the Human Resource Manager.The next reference in the chronology in the record was in September 2009, when the appellant’s minutes of council meeting reflecteda discussion of the issue. The appellantat that time noted the complaint, as part of a wider problem but took no action to find redress for the specific complaint of respondent.
‘It was resolved:
(1)that Council takes note of the salary grading problem and should take a uniform decision when the time is right;
(2)that the Human Resources Department and SE: Finance will discuss the issue, in order to find a proper solution for the salary structure;
(3)that the Finance workout the costs involved in this exercise if all salaries of the staff members are to be brought on par with their counter parts in the upper categories, when the resources recover from retention.’[10]
[21]It is evident from the above stated 2009 resolutionthat the appellant ignored the specific problem of the respondent. It took a commercial decision to focus on a wider salary grading issue which appellant intended to address in their own time, ‘when the resources recover from retention’.
[22]The above stated chronology in the record demonstrated a clear lack of internal processes during the period December 2006 until December 2007, hence my findings: The respondent confirmed the dispute to have arisen in December 2006. He did not demonstrate any exchanges on his disagreement until 2008, when the HR Manager by implication confirmed that the first complaint was filed.[11]In the premises, it is my respectful finding that there was no reasonable ongoing process of dispute resolution that could have suspended the period of 12 months available to make a competent referral in terms of s 86 (2) (b).
[23]In the absence of any evidence that the period of 12 months was suspended by an ongoing reasonable process of internal dispute settlement, the question is whether the provision is absolute when a party is not complying? In this regard I considered the following dicta in the matter of Luderitz Town Council v Shipepe (LCA 42/2012) [2013] NALCMD 9 (2013)[12], whereSmuts J, expressed the view:
‘As was confirmed by this court, the provisions of s 86(2) are peremptory.[13]As was stressed in that matter, the provisions of the Act clearly demonstrate a statutory intention for disputes to be resolved and determined expeditiously. This is reinforced by the fact that s 86(2), unlike its predecessor in the Labour Act of 1992, [14] does not provide for the power of amelioration by means of a power to condone the late filing of any referral, despite the attempt in Rule 10 of the Rules relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner.’[15]
It follows in my view that the referral of the dispute concerning the withdrawal of benefits, other than the housing benefit, was made way outside the time period prescribed by s 86(2)(b) of the Act. As a consequence the award based upon the withdrawal of those benefits, is accordingly a nullity and must thus be set aside.’[16]
[24]Irespectfully accept the above stated and hold that the provisions of s 86(2)(a) are peremptory.The National Housing Enterprise case held that a reasonable ongoing internal process can defer the referral date, and likewise a clearly defined and distinguishable, internal process was present and ongoing in the said case.
[25]However in the current matter, in the 12 months period following the time that he became aggrieved, there was no such indications of an internal process aimed at an internal settlement or entertainment of the dispute by the appellant.I found no factual foundation to stay the peremptory period stated in s 86(2)(b) due to ‘reasonable steps’having been taken to seek any‘domestic remedies’ to follow the language applied in the National Housing Enterprise case.
Considerations of Public Interest
[26]In addition to my respectful concurrence with the above stated decision on the peremptory nature of s 86 (2) (b), the views of Masuku AJ below also strongly resonated with me when it was time to take a decision in this matter. The importance of complying with the peremptory nature of s 86 (2) (b), is demonstrated by the considerations of public interest in his relevant remarks in Luckhoff v The Municipality of Gobabis (LCA 46/2014) [2016] NAHCMD (2 March 2016):[17]
‘It would appear to me that part of the legislative solicitudes in placing a time limit on the referral of disputes to the Labour Commissioner, is to ensure that disputes are not allowed to fester for a long time before they are ventilated and hopefully settled early.
[30]Furthermore, it would seem to me, it is in the public interest that all the parties to a dispute are made aware of the existence of same at the earliest opportunity in order to try and resolve same. Allowing the argument by the appellant to stand would, in my opinion serve to subvert the legislative intent and would allow uncertainty to reign in the employment situation, with parties keeping potential disputes in the freezer, so to speak, until they subjectively find it prudent or convenient to refer same as disputes or worse still, until it becomes inconvenient for them to keep the disputes under wraps as it were any longer, when they have otherwise known of the existence of the dispute for a number of months, if not years.