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Case notes for students

Case notes for students

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Published by André Le Roux
Labour Law, Conciliation and Arbitration Course material for JTC 2009
Labour Law, Conciliation and Arbitration Course material for JTC 2009

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Categories:Types, Research, Law
Published by: André Le Roux on Jun 17, 2009
Copyright:Attribution Non-commercial

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02/01/2013

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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\u2019s 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.

1
Case notes
Practice of Labour Law
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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Case notes
Practice of Labour Law

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\u2019s dismissal.

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