Did the employer consistently apply the reason for the
dismissal in the past as well as between participants in the
misconduct under consideration?
Did the employer have a disciplinary code or other system
of graduated discipline promising different treatment of
more warnings that in fact were given?
Were the personal circumstances of the worker and other
mitigating considerations (including work period and work
performance) taken into account in determining the
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.
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 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.
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'
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.
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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