Case notes

Practice of Labour Law

Representation at Disciplinary Hearing

1. Namibia Tourism Board v Tjino Kauapurura-Angula LCA 48/2007

a. No right to representation in an internal disciplinary hearing where

company’s internal rules do not provide for outside representation

b. Denial of legal representation not unreasonable in terms of Article 18 of the

Namibian Constitution

Standards for dismissal

2. Hailemo V Security Force Services 1996 NR 99 (LC)

Considerations to be taken into account when deciding whether or not to dismiss

an employee who has committed misconduct:

(i) Was what the employee did sufficiently serious to warrant

termination of the employment relationship?

(ii) Were there any valid and current prior warnings which
could bear on the equity of the case?

(iii) Did the employer consistently apply the reason for the
dismissal in the past as well as between participants in the
misconduct under consideration?

(iv) Did the employer have a disciplinary code or other system

of graduated discipline promising different treatment of
more warnings that in fact were given?

(v) Were the personal circumstances of the worker and other

mitigating considerations (including work period and work
performance) taken into account in determining the
discipline?

Where the employer is a firm with several persons in its management and with a
considerable number of employees, as appears to be the position in the instant
case, one would expect a written record to be kept of the disciplinary hearings
and the function of judge, prosecutor, investigator and witness separated as far
as practically possible.

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Individualized Justice Required

3. Pep Stores (Namibia) (Pty) Ltd V Iyambo And Others 2001 NR 211 (LC)

The respondents had been dismissed from their employment for poor work
performance. Their complaint in the court a quo had been upheld. The appellant
employer appealed against that decision.

The appellant had experienced serious stock losses at one of its branches.

Respondents had all been dismissed and the reason for their dismissal had been
collective guilt which had been attributed to them for the stock losses.

The Court held that attributing collective guilt to a group of employees without
individual investigations and proof of each individual's guilt, was contrary to the
presumption of innocence in the Namibian Constitution. The Court held further that
the appellant had not discharged the onus which rested on it to prove that the
dismissals of the respondents had been fair.

Fair reasons for dismissal, despite unfair procedure

4. Kamanya And Others V Kuiseb Fish Products Ltd 1996 NR 123 (LC)

Labour Act required a fair hearing and a fair reason for dismissal, whether or not
this was done in the course of a single hearing or in the course of more than one
hearing and irrespective of whether one of those hearings was labelled an 'appeal'
hearing.

Appeal in terms of an employer's code, could have in mind the setting aside of the
proceedings of the initial disciplinary enquiry, precisely because such initial enquiry
was unfair or even a nullity.
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It would be a travesty of justice if the District Labour Court was compelled to order
re-employment or reinstatement or compensation to be paid by the employer,
because the employer did not follow a fair procedure, if the District Labour Court
was convinced that the employer had proved before it that there was a fair reason
for dismissal. The District Labour Court would be justified to find that the employee
had not been dismissed unfairly or that the disciplinary action had not been taken
unfairly and to confirm complainant’s dismissal.

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Dismissal for Poor Work Performance

5. Rossam V Kraatz Welding Engineering (Pty) Ltd 1998 NR 90 (LC)

Where an employer is of the opinion that an employee's work performance is poor

and wishes to dismiss him on those grounds, the employee is entitled to a fair
hearing before such dismissal can be considered. An employee who is dismissed by
reason of the fact that he refuses to accept an amended remuneration package
which results in his being worse off than he was before, is not a ground for
dismissal. Dismissal under these circumstances constitutes an unfair dismissal,
entitling the employee to compensation. I

Constructive Dismissal

6. Cymot (Pty) Ltd V McLoud 2002 NR 391 (LC)

Constructive dismissal arises where an employee terminates, or agrees to terminate,

the employment relationship due to the conduct of the employer. In other words,
constructive dismissal is the termination of a contract of employment by an
employee under circumstances which make such termination tantamount to, or in
substance, the termination by the employer

In order to determine whether there had been constructive dismissal, a three-stage

enquiry had to be conducted which involved the following: 1. whether, in resigning,
the employee did not intend to terminate the employment relationship; 2. whether
the employer did constructively discharge the employee: the onus was on the
employee to establish that there was constructive dismissal; 3. whether the
circumstances that prompted the employee to resign were fair or unfair.

Reinstatement Denied

7. Society For The Prevention Of Cruelty To Animals Of Namibia v Terblanche 1996 NR

398 (LC)

It is accepted by both sides that by virtue of s 46(3) of the Act, the onus is on the
appellant as the employer to show that the employee has been fairly dismissed.
There is no doubt that the appellant failed to show that the respondent was afforded
a fair and just proceeding to determine the charges of misconduct. What constitutes
a fair procedure must vary in every case but fundamental to such requirement is the
right not only to be informed of the charge, but also the right to participate at the
hearing by the person who is the subject of the charge. Then is also the expectation

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that members of the disciplinary tribunal must approach the proceedings without
bias.

Viewing the evidence as a whole, I have no doubt that the appellant had a valid and
fair reason for dismissing the respondent.

However, since the appellant failed to conduct a fair dismissal proceeding, the
process was flawed. In the normal course of events I would confirm the order to
reinstate her made by the district labour court. However, because of the irregularity
in the proceedings this cannot be done.

It is clear from all the evidence that the continued presence of the respondent at the
appellant's premises can only result in chaos. Quite obviously, if the appellant is to
continue in its good work, the respondent and most members of the executive
committee have to be separated. In my view there is only one thing to be done here,
that the respondent be removed from the appellant's employment.

I agree with both counsel that the subsection appears to confer a wide discretion on
the district labour court. The Court is not limited to the orders set out in s 46(1)(a)
and (b). In my finding this is clearly a most fitting case in which the court could have
exercised its discretion to decline to reinstate the respondent into her former position

Employer failed to establish that the dismissal wafair, but reinstatement denied

8. Pupkewitz Holdings (Pty) Ltd v Petrus Mutanuka & others LCA 47/2007

a. Court affirms holding of dlc that employer failed to establish that the terminations
were for fair and valid reasons

b. Court exercises its discretion to set aside order of reinstatement, apparently

because of the nature of the charges, namely theft.

“. . .to force an employer to reinstate his or her employee is already a tremendous

inroad into the common law principle that common law contracts of employment
cannot normally be specifically enforced. Therefore the discretionary power to
order reinstatement must be exercised judicially. In the instant case, the likelihood
of the appellants having a similar problem to the one that led to their being charged
cannot entirely be ruled out. Added to this is the fact that the respondents were
dismissed in June 2004 and the district labour court issued its judgment in
February 2006.” [veyt: this not the workers’ fault]

See also: Shiimi v Windhoek Schlacteri (Pty) Ltd. NLLP2002(2) 244 NLC.

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Meaning of ‘Strike’; appropriateness of reinstatement; backpay

9. Ameib Ranch Guest Farm V Matrefu And Others 2002 NR 311 (LC)

Section 1 of the Labour Act defines the word 'strike' in these terms:

'''(S)trike'' means the refusal or failure in concert by two or more employees of an

employer to continue, whether completely or partially to work or to resume their work
or to comply with the terms and conditions of employment applicable to them, or the
retardation by them of the progress of work, or the obstruction by them of work with
a view to inducing such employer to agree to, or to comply with any demands or
proposals which relate to any dispute or to abandon any demand or modification of
any such demands.'

The evidence on record does not show that the concerned respondents had made
'demands' or 'proposals' to the appellant which were awaiting compliance or
resolution. Rather, those respondents had approached Mrs Kogl and Mr Nick for the
purpose of seeking clarity on the summary dismissal of their co-worker, Paulus. But
when the said clarity was not forthcoming, the respondents were advised to
approach their union, which they did.

In these circumstances, mere cessation of work did not amount to a 'strike' in terms
of the Labour Act. 'The mere cessation of work is therefore not a strike per se. There
must be a demand related to a concerted refusal to work and such refusal must be
shown to be intended to persist until the demand is met. . . .Applicants wished to
discuss the memorandum. I doubt whether this request can be regarded as a
''demand'' in the proper sense.... It can only be such if it was clear the employees
would not continue to work until this request was met. This it has failed to show.'

Appellant failed to prove the existence of a strike within the meaning of the law. The
evidence adduced shows that the respondents' refusal to work may at best and for
lack of a better expression, be described as protest action which flowed directly from

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the appellant's indifference to shed light on I the summary dismissal of their

workmate. It is not in dispute that the respondents' refusal to work was peaceful.

'Where an employee is unfairly dismissed, he suffers a wrong. Fairness and justice

require that such wrong should be redressed.... The fullest redress obtainable is
provided by the restoration of the status quo ante. It follows that it is incumbent on
the Court when deciding what remedy is appropriate to consider J

whether in the light of all the proved circumstances there is reason to refuse
reinstatement.'

An order for the reinstatement of the respondents would be inappropriate, not only
because of the length of time that has elapsed since the dismissal of all the
respondents took place, but also because of the breakdown in relationships between
the parties and the hardship that the new employees who have since been hired in
place of the respondents would experience. In the circumstances of this case, I
think that justice will be served by making an order for compensation

'Reinstatement' as used in the Labour Act means reinstating an employee in the

position he or she would have been in, had he or she not been dismissed. However,
when deciding whether or not such reinstatement should include payment of
compensation for loss of income, the Court must have regard to the surrounding
circumstances. In particular, the Court must take into account whether such
employee has earned income during the period of unemployment.

Effect of settlement

10. Golin t/a Golin Engineering v Cloete 254 NR 1995

“ When a party claims that there has been a full and final settlement, the Court
should recognize the settlement as a termination of the issues on the merits, once
the Court has , upon investigation of the settlement issue, been satisfied that there
indeed was a settlement and that the settlement was voluntary, i.e. without duress or
coercion, unequivocal and with full knowledge of its terms and implications as a full
and final settlement of all the issues. The onus is on the party who relies on the

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settlement to prove that the alleged settlement complies with the requirements
herein set out.”

Effect of settlement

11. Adriaan Jacobus Kruger &21 others v Namibian Broadcasting Corporation (NBC)
LC 21/2003

a. Applicants signed deed of settlement with NBC for voluntary retrenchment

package

b. Applicants approached the Court to declare, among other things, that that
“completed years of service with NBC” should be construed to include years
of service with SWABC before Namibia’s independence

c. Statutory support for the proposition that NBC could not contract out of its
obligation to recognize pre-independence service

d. Applicants were not made aware of the terms of the settlement from
employer’s perspective, i.e., pre-independence years of service not counted;

e. Therefore applicants did not agree to exclude the pre-independence years

Application granted.

Termination by Operation of Law for Absence from Work (Public Service)

12. Epson Tjivikua v The Minister of Works, Transport and Communication

a. Deeming provision of Section 24(5)(b) of the Public Service Act—

termination by operation of law

b. New ground of appeal introduced without notice—impermissible

Retrenchment or collective dismissal; duty to negotiate in good faith

13. Visagie V Namibia Development Corporation 1999 NR 219 (HC)

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Practice of Labour Law

The reference to negotiate - 'with a view to minimizing or averting any adverse

effects' . . .must be seen in context. What has to be afforded is 'an opportunity to
negotiate . . . the conditions on which, and the circumstances under which such
terminations ought to take place . . .'. It is, in other words, a foregone conclusion that
the terminations will take place but the opportunity must be given to negotiate the
conditions on which, and the circumstances under which the terminations ought to
take place with a view to reducing or preventing unfavourable effects

The opportunity which the respondent was obliged to afford to the appellant was 'to
negotiate'. 'Negotiate' is defined in The Concise Oxford Dictionary 9th ed as:

'Confer with others in order to reach a compromise or agreement'

or, as was said in Metal & Allied Workers Union v Hart (1985) 6 ILJ 478 (IC) at 493 -
G

'to haggle or wrangle so as to arrive at some agreement on terms of give and take'.

The word 'negotiation' was also the subject of consideration in Minister of Economic
Affairs and Technology v H Chamber of Mines of South Africa 1991 (2) SA 834 (T).
Eloff DJP said at 836H - J:

'The process contemplated by the requirement of negotiation means that, if the

employees' organisations concerned express needs and preferences at variance
with what the manager considers reasonable or essential, or if various I employees'
organisations on a mine have different needs and preferences, the manager should
endeavour to reach agreement with those negotiations. He must enter into debate
with them, and, if he thinks it necessary, endeavour to persuade them to change
their attitudes. He should give consideration to whether he should not depart from a
position already taken for the expediency of achieving compromise. The duty
imposed in ''negotiate'' means that the interchange should proceed until agreement
or deadlock is reached.'

'Negotiate', as used in s 50(1)(b) has the meaning set out in the foregoing
quotations.

See also: African Granite Co (Pty) Ltd v H Mineworkers Union of Namibia 1993 NR
91 (LC) at 98E -

'. . . the purpose of s 50 is to bring the employer and the employee's representative
to the negotiating table and the requirement contained in ss (1)(b) that the employer
shall afford ''an opportunity to negotiate'' must mean that the employer is under an
obligation to enter into genuine negotiations and that he is obliged to negotiate in
good faith'.

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Practice of Labour Law

Termination on Notice; unfair dismissal protections apply

14. Joe Gross T/A Joe's Beer House V Meintjies 2005 NR 413 (SC)

Dismissal by notice under s 47 terminates the contract of employment but: (a) if

unfairly done, it will bring the provisions of ss 45 and 46 into play; and (b) if no or
inadequate notice is given, the remedy provided for by s 53(a) will be available to an
aggrieved employee.'

I am fortified in this conclusion by the remarks of Silungwe P in NAFAU and 38

Others v United Fishing Enterprises (unreported Labour Court judgment in case No
LCA 08/2001 dated 5 April 2002 at 7) He expressly held that ''the term 'dismissal' is
not confined to the termination of a contract of service on grounds of an employee's
misconduct but that it may also encompass termination of a contract of service on
grounds other than misconduct'' (at 10). He points out that the Full Court of the High
Court also considered the termination of services without compliance with s 50(1)
as an ''unfair dismissal'' under s 45 of the Act in the case of Visagie v Namibia
Development Corporation 1999 NR 219 (HC) at 229G and 230C).

I agree. The criminal sanction provided for in s 50(2) is only aimed at an

employer who contr avenes or fails to comply with the procedure prescribed in ss
(1). If a restrictive interpretation is given to ''dismiss'' in ss 45 and 46, it will not only
leave the employees dismissed contrary to those provisions without civil recourse,
but also those whose dismissal were substantively unfair, eg when an employer
mala fides uses the guise of ''re-organisation'' to rid the business of targeted
employees for impermissible reasons such as those mentioned in s 45(2) of the Act
or apply methods of selection which are patently unfair.

It is only when the word ''dismiss'' is interpreted to include any termination of

a contract of employment by or at the behest of an employer that the notion of
''fairness'', which lies at the heart of sound labour relations, is given its rightful place
in the structure of the Act. Historically, the inequality in labour relations resulted in
numerous unfair labour practices leading to industrial and political tension and
conflict. The Act, according to its preamble, was adopted to further labour relations
conducive to economic growth, stability and productivity by, B amongst others,
promoting sound labour relations and fair employment practices. The concept of
fairness permeates the objectives of the Legislature as they find expression in words

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used, the relationships envisaged and the structures and mechanisms, judicial and
otherwise, created in the Act. Employers are required to treat their employees fairly
and the converse holds equally true.

The restrictive interpretation given to the word ''dismiss'' in Du Toit's case, detracts,
with respect, substantially from that objective and gives rise to a number of
difficulties - even injustices and absurdities. I have already referred to some of
them in the context of s 50 of the Act. If I were to apply that interpretation to s 47, it
would leave the door wide open for employers to terminate by notice the
employment of unwanted employees for no good D reason at all.

Termination of fixed-term contract by notice; unfair dismissal protections apply

15. Kiggundu And Others V Roads Authority And Others 2007 (1) NR 175 (LC)

Employee or Independent Contractor ?

16. Paxton V Namib Rand Desert Trails (Pty) Ltd 1996 NR 109 (LC)

The applicant's husband had been employed by the respondent company. From time
to time the applicant had assisted her husband in his employment and had received
remuneration for her services. The applicant's husband had been dismissed during
1993. In the present case the applicant sought an order declaring that she had been
an employee of the respondent. The Court analysed the evidence and the case law
and held that the applicant had not in fact been an employee of the respondent. Her
services had been rendered on an ad hoc basis and were in essence more to assist
her husband than to assist the respondent. Moreover, she had been paid at fixed
rates for certain services which she had rendered directly to the respondent but
there was no express or implied contract of employment between them. She was in
a sense an independent contractor and did not fit the definition of 'employee' in the
Labour Act G 6 of 1992.

Burden on applicant to prove employee status

17. Engelbrecht And Others V Hennes 2007 (1) NR 236 (LC)

The issue between the parties in the present case was whether deputy messengers
were, as alleged by them, employees of the messenger or, as alleged by the
messenger, agents or independent contractors.

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The contracts between the parties were such that they contain certain elements
that were usually found in agreements of employment and certain elements that
were usually found in agreements of agency or where independent contracts
were utilised: it thus became necessary to examine every feature of the
relationship between the parties to determine whether the dominant impression
was such that the relationship could be described as an employer - employee
relationship; in examining this relationship and in eventually classifying it as one
of employment or not it must be borne in mind that the contracts between the
parties could not be judged in isolation but must be assessed in the social
context in which they were concluded, having regard to the relevant legislation.

In looking at the relationship between the parties the following indiciae were
relevant, namely, 'the nature of the task, the freedom of action, the magnitude of
the contract amount, the manner of payment, the power of dismissal, the
circumstances under which the payment of the reward may be withheld, control,
supervision, subjection to the orders of another ' (Colonial Mutual Life Assurance
Society Ltd v MacDonald 1931 AD 412 at J 426).

The total absence of control would be fatal to any claim to being an employee.

Applicants bore the onus and such onus had not been discharged on a balance
of probabilities, and that the application had to be dismissed.

Judge not an “Employee”

18. Hannah v GRN 2000 NR 46 (LC)

Judge of High Court is not an employee of the State within the meaning of the
Labour Act.

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Discrimination on the Basis of HIV Status

19. Nanditume V Minister Of Defence 2000 NR 103 (LC)

The applicant had applied to be enlisted in the Namibian Defence Force. A medical
examination and blood test revealed that he was HIV positive. His application for
enlistment was refused on this ground.

The Court held that the exclusion of the applicant from the Defence Force on the
ground that he had tested HIV positive constituted unfair discrimination in
contravention of s 107 of the Labour Act 6 of 1992, especially since the applicant
was still in good health.

Review

20. Lily Katrina Eilo v the Permanent Secretary of Education and Others LC 28/2006

a. Review of Public Service Appointment

b. In terms of Rule 15, application to be brought within three months

c. Court has discretion to condone the lateness

d. Court will take into account the merits of the action sought to be reviewed

e. Common law principles of review applicable

f. “legitimate expectation” doctrine applicable in labour matters

Urgent Application to Stay Disciplinary Proceeding

21. Ronald Patrick Kurtz v Nampost Namibia LC 29/2005

a. Application for an urgent interdict to stay disciplinary hearing pending

preparation of a application for declaratory order re right of legal
representation at internal disciplinary hearing

b. Applicant has not shown urgency

c. Applicant has not shown that could get redress at a hearing in due course

i. Could raise the issue of legal representation in an internal appeal

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ii. Could challenge disciplinary action in district labour court, including

ground regarding legal representation

iii. Could apply to abour Court for appeal or review of dlc decision

See also Habenicht v the Board of Nawater Limited NLLP 2004(4) 18 NHC

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Application to stay a judgment ordering payment pending appeal

22. Melvin van Wyk v Elizabeth Cornelia Gowaseb and another LC 40/2008

a. Urgent application staying a judgment of dlc ordering payment, pending

appeal to the Labour Court

b. In order to obtain urgent interdict, applicant must show

i. The right sought to be protected is clear, or

ii. Right is prima facie established and there is a well-ground

apprehension of irreparable harm to applicant if the relief is not
granted and it ultimately succeeds in establishing its right

iii. The balance of convenience favours the applicant, and

iv. The applicant has no other satisfactory remedy

c. “. . .right” is an entitlement, protected by law, to something or concepts like

justice and due process. These rights include contractual and delictual
rights (legal rights) and basic, human, inalienable rights like those
guaranteed by Chapter 3 of the Namibian Constitution.

d. Applicant failed to establish a righ

Rescission

23. Nafinu v Haihambo LCA 47/2007

a. Appeal from dlc’s denial of an application to rescind a default judgment

b. Similar to principles articulated in relations to Rule 49 of magistrates’ courts

rules:

i. Applicant must give a reasonable explanation for the default

ii. Application must be made bona fide

iii. Applicant must demonstrate a bona fide defense to the claim

c. Appeal dismissed because no reason given for the applicant’s failure to

attend the hearing

Resolution authorizing trade union official to appear

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24. Festus Nakanyala v Old Mutual Namibia LC 04/2007

a. Failure of applicant to file a resolution of trade union authorizing its

executive member to depose to founding affidavit as required by Rule 4(2)
—(cf Section 57 of 1992 Act)

b. Veyt note: Did the court have jurisdiction to hear this case?—Is it actually
an unfair dismissal case disguised as an application for a declaratory
order?

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Interpretation of a collective agreement

25. Namibia Public Workers Union(NAPWU) v Namibia Post Limited LC 02/2006

a. Application to enforce collective agreement providing for certain wage

increases.

b. Respond attempts to interject evidence regarding circumstances of

bargaining in order to read certain modification into the wage agreement
(“cost to company”.)

c. Court applies traditional rule that in the absence of ambiguity, evidence of

surrounding circumstances not permitted.

Question of law—facts not substantiated by the evidence

26. Rumingo And Others V Van Wyk 1997 NR 102 (HC)

Facts not substantiated by evidence fall under rubric of questions of law.

In the present case the Labour Court had made a finding of fact which had not been
substantiated by the evidence and was accordingly an erroneous finding of fact.

The Court held that the test in appeals based on a question of law, in which there
had been an error of fact was that which was expressed by the South African
Appellate Division in Secretary for Inland Revenue v Geustyn Forsyth & Joubert
1971 (3) SA 567 (A) at 573 as being that the appellant must show that the Court's
conclusion 'could not reasonably have been reached'.

Retrenchment ; costs awarded against trade union

27. Seamen And Allied Workers Union v Cadilu Fishing (Pty) Ltd 2005 Nr 257 (LC)

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The applicant, a trade union, had obtained relief in the form of a rule nisi, inter alia,
interdicting respondent from unilaterally changing the conditions of employment of
its members and continuing with retrenchment proceedings pending the final
resolution of the dispute between the parties.

The Court discharged this rule on the return day and the present judgment dealt
with the reasons for its discharge of the rule.

The Court held that the respondent had shown that it had embarked on the s 50
procedure for valid economic reasons. It had throughout given the applicant warning
that it was facing difficult economic circumstances and had offered the applicant
insight into the details of these difficulties. Already since November respondent had
indicated at various stages that it was considering retrenchment as a real option
and informed the applicant accordingly. If the applicant turned a deaf ear or a blind
eye to these clear warnings, it did so at its peril. The retrenchment process was
accordingly not a sham as the applicant had contended.

The Court held further that in this case it was justified to grant a costs order against
the applicant. The applicant had misled the Court when the urgent relief had been
sought and its papers had been fraught with distortions and non-disclosures.

Limitations on Court’s Power to Grant Costs

Ce urgent relief had been sought and its papers had been fraught with distortions and
non-
28. Commercial Investment Corporation (Pty) Ltd V Namibian Food And Allied Workers
Union And Others 2007 (2) NR 467 (HC)

The Labour Court's powers to grant a costs order are limited by s 20 of the Labour
Act 6 of 1992, as follows: (a) the court shall not make any order (these words are
clearly peremptory); unless (b) such costs were incurred as a result of the fact that
the other party instituted, opposed or continued with the proceedings; and (c), the
other party must be vexatious or frivolous in so instituting, opposing or continuing
with the proceedings. The peripheral jurisdictional, provisions of s 18(1)(f) or (g) of
the Act cannot be used to override (impliedly so) the specific provisions of s 20 of the
Act.

No costs where complainant was granted legal aid

29. Rubetta Joan Agnes Reilly v The Clerk of the District Labour Court and others

Applicant not entitled to costs where she had was granted legal aid in terms of
the Legal Aid Act (Act No. 29 of 1990).

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