HIGH COURT LABOUR JUDGMENTS INDEX 2013

COMPILED BY: MS. LOTTA AMBUNDA JUDICIAL RESEARCH ASSISTANT DIRECTORATE: REGISTRAR OF HIGH AND SUPREME COURT

THE HIGH COURT JUDGMENT INDEX 2013 THE HIGH COURT JUDGMENT INDEX IS A SUMMARY OF ALL CIVIL, CRIMINAL AND LABOUR JUDGMENTS DELIVERED AND HANDED DOWN IN THE HIGH COURT OF NAMIBIA DURING THE YEAR 2013. THE INDEX IS COMPILED TO ASSIST LEGAL PRACTITIONERS, LAW STUDENTS AND THE PUBLIC TO EASILY REFER TO UNREPORTED JUDGMENTS OF THE HIGH COURT AS COMPETENT AUTHORITIES. THE INDEX HAS BEEN PREPARED WITH THE APPROVAL OF THE JUDGEPRESIDENT AND UNDER THE SUPERVISION OF THE CHIEF REGISTRAR.

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Table of Contents SUBJECT INDEX....................................................................................................... 4 APPEAL ..................................................................................................................... 4 BASIC CONDITIONS OF EMPLOYMENT................................................................. 5 INTERPRETATION OF THE LABOUR ACT, 2007 .................................................... 6 JURISDICTION OF LABOUR COURT ...................................................................... 7 REVIEW OF ARBITRATION AWARD ....................................................................... 8 URGENT APPLICATION ........................................................................................... 9 CASE SUMMARIES ................................................................................................... 10 Biwa v Namibia Airports Company (LC 39/2013) [2013] NALCMD 11(5 April 2013) .. 10 Kamati v Namibia Rights and Responsibilities Incorporated (LC 1-2012) [2013] NALCMD 1 (14 January 2013) ................................................................................... 11 Kandukira v Shinguadja (LC 118/2011) [2012] NALCMD 8 (21 September 2012) ..... 11 Mokwena vs Shinguadja (LC 52/2011) [2013] NALCMD 10 (28 March 2013) ............ 12 Namib Mills (Pty) Ltd vs Shigwedha (LCA 34/2012) [2013] NALCMD 6 (22 February 2013) .......................................................................................................................... 12 Rosh Pinah Zinc Corporation (Pty) Ltd v Murongo (LCA 36/2012) [2013] NALCMD 3 (24 January 2013) ...................................................................................................... 13 Schmitz Services CC vs Titus (LCA 44/2012) [2013] NALCMD 12 (16 April 2013) .... 14 The Minister of Education v The Interim Khomas Teachers Strategic Committee and All Persons forming part of the Collective Body of the First Respondent (LC 166/2012) [2013] NALCMD 2 (23 January 2013). ....................................................................... 14 Van Niekerk v MB Truck Spares (LC 72/2013) [2013] NALCMD 20 (20 June 2013) .. 14

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SUBJECT INDEX

APPEAL Labour law – Arbitral award – Appeal against – Court rejected arbitrator’s finding that employee first respondent’s dismissal is unfair – Court finding that the uncontradicted evidence before the arbitrator does not account for the arbitrator’s finding that the dismissal is unfair – Labour law – Employer’s payment of severance pay in terms of s 35(1) of the Labour Act 11 of 2007 – In virtue of s 35(2) payment of severance does not apply to each and every employee who separates from his or her employment. Schmitz Services CC vs Titus (LCA 44/2012) [2013] NALCMD 12 (16 April 2013) Labour law – Appeal – In terms of rule 17(25) of the Labour Court Rules – Interpretation and application of - Labour law – Arbitral award – Appeal against – Arbitrator’s finding that employee respondent’s dismissal is unfair rejected by the court – Court finding that employer appellant’s disciplinary hearing was procedurally fair and appellant employer had valid and fair reason to dismiss – Accordingly appeal succeeds and arbitrator’s award reinstating employee respondent set aside. Namib Mills (Pty) Ltd vs Shigwedha (LCA 34/2012) [2013] NALCMD 6 (22 February 2013). Labour law - Appeal against an arbitrator’s ruling that the appellant was not an employee of the first respondent. Question arising as to whether this was a question of fact or law and thus not appealable under s 89 of Act 11 of 2007. The court concluded that it was a question of law and not appealable. Swarts v Tube-O-Flex Namibia (Pty) Ltd (LCA 51/2012) [2013] NALCMD 8 (27 March 2013). Labour law - Appeals – To Labour Court from the district labour court – What judgments or orders are appealable – Only judgments or orders having the effect of a final judgment and any order as to costs are appealable. Labour law – Meaning of ‘frivolous or vexatious’ in section 20 of Labour Act, 6 of 1992 discussed. Telecom Namibia Ltd v Klein (LCA 39-2009) [2013] NALCMD 5 (5 February 2013). Labour law - Appeal in terms of s 89 of Act 11 of 2007. Non-compliance with rule 5 of rules relating to the conduct of conciliation and arbitration. Not one of the applicants signed a joint referral. No accompanying statement was attached authorising the union signatory. This non-compliance vitiated the proceedings. Proceedings also defective and irregular because applicants not required to prove their claims under oath and the arbitrator misconceiving the nature of the onus in respect of the claims. Springbok Patrols (Pty) Ltd v Jacobs & Others (LCA 702/2012) [2013] NALCMD 17 (31 May 2013).
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Labour law – Appeal against arbitration award – Suspension from duty pending an investigation into certain perceived irregularities – No disciplinary hearing held and matter referred to Labour commissioner – Award stating that the internal remedies were not exhausted and ordering for the re-instatement – Court holding that the arbitrator correct in holding that the internal remedies were not exhausted but erred in ordering for the re-instatement as there was no evidence adduced – Arbitration award set aside. Royal House of the Chief Kambazembi v Harold Kavari N.O. (LC 53/2012) [2012] NALCMD 14 (26 November 2012) Labour law - Labour Court Rules and Practice – Application to stay operation of Arbitrators award – Notice of appeal defective – No appeal noted. van Niekerk v MB Truck Spares (LC 72/2013) [2013] NALCMD 20 (20 June 2013). Labour law - Contempt of court – Civil contempt – Sentence – Purpose of sentence not merely punitive but to coerce obedience of court order. The Minister of Education v The Interim Khomas Teachers Strategic Committee and All Persons forming part of the Collective Body of the First Respondent (LC 166/2012) [2013] NALCMD 2 (23 January 2013).

BASIC CONDITIONS OF EMPLOYMENT Labour law - Remuneration – Commission – Respondent claiming payment of commission for work done before resignation – Conditions of employment however providing that commission only payable in the first salary run after customer acceptance, full provisioning and the customer being invoiced - Respondent resigning after customer acceptance but before full provisioning and customer acceptance having occurred, ie before payment had become due – Respondent contending in defence of arbitration award made in favour of respondent that Sections 9(2)(a) as read with Section 37(1)(a) of the Labour Act 2007 rendered the applicable conditions of the commission scheme unenforceable – as they were less favourable - and as Section 37(1)(a) which thus governed the payment of remuneration – which included the payment of commission - in such circumstances required an employer to pay an employee for all work done before the date of termination – the appellant had become liable to pay the commission claimed as the respondent had done all the work in this regard - Appellant argued that this argument and the arbitrator’s award had overlooked and ignored the impact of the word ‘due’ as contained in section 37(1)(a) which merely required an employer to pay the employee all the remuneration ‘due’ for work done before the termination. In terms of the conditions of employment the commission claimed had not become ‘due’ and accordingly the arbitrator had erred in this regard - in any event section 37(1)(a) was not more favourable to the respondent as also the
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particular clause, in the commission scheme, governing the payments of commission, only obliged the appellant to pay such remuneration/commission, which had become ‘due’ to the employee for work done at the time of termination. Vox Orion (Pty) Ltd t/a Vox Orion v Prinsloo (LCA 74/2012) [2013] NALCMD 19 (13 June 2013). Labour law - Remuneration – Claim for payment of commission – Interpretation of Sections 9(1) and (2) as read with 37(1)(a) of Labour Act 2007 – Court finding that that Section 9(1) provides that the basic conditions of employment - set out in Parts B through to F of Chapter 2 of the Act - constitute terms of any contract of employment – that this holds true for the relied upon section 37(1)(a), which is a section contained in Part F of the Second Schedule. The statute then expressly envisages and provides for situations in which the Act will superimpose conditions of employment - to the extent that they are more favourable - on any employer and employee relationship. This will occur in the cases which are listed in Sections 9(2)(a) to (c) and (3) of the Act – In casu where the respondent regarded section 37(1)(a) as the more favourable condition – ie. to the extent that it is considered the section more favourable than the conditions of employment governing the payment of commission - the scenarios envisaged by section 9(1)(b) and (b) did not arise as Section 37(1)(a) in any event already constituted a term of the contract between the parties - it followed that the respondent’s claim fell to be determined, in the main, with reference to section 37(1)(a). Vox Orion (Pty) Ltd t/a Vox Orion v Prinsloo (LCA 74/2012) [2013] NALCMD 19 (13 June 2013). Labour Law - Disputes referred to the office of the Labour Commissioner outside the periods referred to in s 86(2) are prescribed. A dispute arose in the present context when the respondent took issue with the withdrawal of unauthorized benefits. Benefits to Local Authority employees are invalid if ministerial approval is not granted for them. Luderitz Town Council v Shipepe (LCA 42/2012) [2013] NALCMD 9 (27 March 2013) Labour law - It is not substantially unfair to offer an employee who was injured in a nonwork related accident, an alternative position at a lower remuneration if as a result of the accident the employee can no longer do the work he did prior to the accident. Rosh Pinah Zinc Corporation (Pty) Ltd v Murongo (LCA 36/2012) [2013] NALCMD 3 (24 January 2013).

INTERPRETATION OF THE LABOUR ACT, 2007 Labour law – Interpretation of Section 37(1)(a) of Labour Act 2007 – Court holding that the legislature’s use of the word ‘due’ in the section - and the import of the concept ‘owing’ therein through the definition of the word ‘remuneration’ - as contained in
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Section 1 - could not be overlooked and ignored in the interpretation of the section and had to be given effect to – Also on a literal interpretation of section - which did not result in any absurdity – and - in circumstances were the context of the section did not override the ordinary meaning of the language employed - it appeared that Section 37(1)(a) sets two requirements before remuneration, as defined, is to be paid : ie. the work must be done and payment therefore must have become due at the time of termination – as these requirements had not been met on the facts of the case the appeal had to be upheld. Vox Orion (Pty) Ltd t/a Vox Orion v Prinsloo (LCA 74/2012) [2013] NALCMD 19 (13 June 2013). Labour law – Section 134(c) of the Labour Act 2007 – Applicant seeking costs order against arbitrator - In terms of the section arbitrator appointed in terms of Labour Act 2007 not incurring any personal civil liability if, acting in terms of any provision of this Act, he/she did something, or failed to do something, in ‘good faith’ in the performance of his/her functions in terms of the Labour Act – Term ‘good faith’ is not defined – Decided that these words can be interpreted to mean with ‘ honesty or sincerity of intention’ or ‘proceeding from- or characterised by genuine feelings, free from pretence or deceit’ – Rationale behind immunity afforded by section reaffirmed – Dictum Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) at 471C-E approved – In the present instance court finding on the facts that actions of arbitrator – On a balance of probabilities – Could not be said to have acted in ‘bad faith’ – Arbitrator therefore not losing immunity afforded by Section 134(c) of the Labour Act, – Special costs order refused. Fashion Retailers (Pty) Ltd t/a American Swiss Jewellers v Kurz (LC 68/2011) [2012] NALCMD 15 (25 October 2012) Labour law – Labour Act, No 6 of 1992 - Application for rescission of default judgment under rule 22 of rules of district labour courts – Applicable principles re-stated. Adcon CC v Sack (LCA 31/2008) [2013] NALCMD 18 (10 June 2013).

JURISDICTION OF LABOUR COURT Labour law– Labour Court – Jurisdiction – Labour Court not having jurisdiction to entertain claims based on non-compliance with or contravention of Chapter 3 of Labour Act – Such disputes should be referred to arbitrator to resolve in accordance with Part C of Chapter 8 of Labour Act. Kamati v Namibia Rights and Responsibilities Incorporated (LC 1/2012) [2013] NALCMD 1 (14 January 2013). Labour law - Labour Court - Applications and motions – Application to review and set aside arbitration award – Section 89(4) of the Labour Act, 2007 read with Rule 14(7) of
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Labour Court Rules requiring such application to be launched within 30 days of the arbitration award having been handed down. Namquest Fishing (Pty) Ltd v Vilho Melkisendeki (LC 2/2010) [2013] NALCMD 16 (20 MAY 2013). Labour law - Question of law – includes a finding of fact made by a lower court which no court could reasonably have made ie where there was no evidence which could reasonably support such a finding of fact or where the evidence is such that a proper evaluation of that evidence leads inexorably to the conclusion that no reasonable court could have made that (factual) finding – Rationale underpinning this approach is that the finding in question was so vitiated by lack of reason as to be tantamount to no finding at all. Respondent dismissed during disciplinary hearing inter alia for the unauthorised use of property belonging to his employer (appellant) – The undisputed evidence was that respondent presented a fire-extinguisher belonging to the appellant when respondent took his private motor vehicle for a roadworthy test at NaTIS – Testing officer informed respondent personally that vehicle (a kombi) cannot pass test since fire-extinguisher belonged to a company and was not mounted inside the vehicle as required by law – Testing officer subsequently reported incident to appellant – Respondent never testified in own defence during arbitration proceedings. Namdeb Diamond Corporation (Pty) Ltd v Smith (LCA 50/2012) [2013] NALCMD 13 (19 April 2013).

REVIEW OF ARBITRATION AWARD Labour law – Review and set aside decision of first respondent – Leave to appeal refused – Test – No reasonable prospect that another Court may come to a different conclusion. Methealth Namibia Administrators (Pty) Ltd v Mbengela N.O. (LC 97/2011) [2013] NALCMD 21 (24 June 2013). Labour law – Arbitral award – Application to review and set aside of award in terms of the Labour Act 11 of 2007, s 89(4) and (5) and (10) – The Labour Act sets out exhaustively the grounds, any one of which, the applicant should prove exists in order to succeed. Labour Law – Arbitral award – Application to review and set aside award in terms of the Labour Act 11 of 2007, s 89(4) and (5) and (10), read with rule 6(1) of the Rules of the Labour Court – Facts (or grounds) not set out in the notice of motion not available to applicant during the hearing. Mokwena vs Shinguadja (LC 52/2011) [2013] NALCMD 10 (28 March 2013). Labour Law - An application for review of a decision of an arbitration must be brought within the time periods set out in s 89(4) of the Labour Act, 11 of 2007. There is no
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power to condone the failure to bring a review outside those periods. Lungameni & Others v Hagen & Another (LC 99/2012) [2013] NALCMD 15 (27 March 2013) Labour law - Application for review of arbitration proceedings in respect of labour dispute – Arbitrator refusing to recuse himself after it was established that he had prior knowledge of the dispute – Arbitrator further having discussions with one or more of the respondents before delivering his award in the absence of the applicant – Practice – Respondents raising point that they were not properly served because case number did not appear in newspaper tear sheets – Referral form (Form LC21) not signed. Namura Mineral Resources (Pty) Ltd v Mwandingi (LC 51/2010) [2013] NALCMD 4 (23 January 2013)

URGENT APPLICATION Labour law – Urgent application to interdict overtime ban as unprocedural industrial action – requirements of s 79 of the Labour Act 11 of 2007 discussed – jurisdiction of the Labour Court to grant urgent interdicts raised and found to be confined to pending disputes referred under Chapter 8 of Act 11 of 2007. Meatco v Namibia Food and Allied Worker Union & Others (LC 61/2013) [2013] NALCMD 14 (19 April 2013). Labour law - Urgent application for stay of disciplinary proceedings pending finalisation of a referral of a dispute between the parties for conciliation / arbitration to the Labour Commissioner in terms of Chapter 8 of the Labour Act, 11 of 2007 – Applicant’s urgency self-created – In the alternative, on its own papers, it failed to show that it would not obtain substantial redress in due course. Biwa v Namibia Airports Company (LC 39/2013) [2013] NALCMD 11(5 April 2013). Labour law – Urgent application – Application to set aside proceeding of the District labour Court – proceedings in the District Labour Court are frivolous and vexatious and as a result amount to an abuse of the process of court - Matter to be dealt with by the District labour court instead - Security – Rule 62 of the Magistrates’ court apply – Application dismissed. National Housing Enterprises v Beukes (LC 67/2012) [2013] NALCMD 07 (27 February 2013).

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CASE SUMMARIES

Biwa v Namibia Airports Company (LC 39/2013) [2013] NALCMD 11(5 April 2013) Summary: The applicant launched an urgent applicant for the stay of disciplinary proceedings instituted against him and scheduled for hearing by an independent chairperson by agreement between the parties on 28 February 2013 pending finalisation of a referral of a dispute between the parties for conciliation and medication / arbitration to the Labour Commissioner. The application was instituted and set down for hearing at 09h00 on 28 February 2013. The respondent’s legal practitioners were served with the application on 28 February 2013 at approximately 08h30. The dispute was referred to the Labour Commissioner and was lodged on 27 February 2013. The gravamen of the applicant’s complaint was that the dispute referred to the Labour Commissioner on 27 February 2013 (after it became clear on 25 February 2013 that the respondent had every intention of continuing the disciplinary hearing, which was by agreement between the parties (on 5 February 2013) scheduled to take place on 28 February 2013)) related to whether disciplinary proceedings could be instituted against the applicant in the first place, because the respondent inter alia failed to investigate or lay charges in the time frame set out in its disciplinary policy and because the applicant was charged with a number of offences not listed in the disciplinary policy. On the papers it was clear that the applicant blew hot and cold on the respondent. It indicated that the proceedings should be discontinued for the above reasons. The applicant then requested information on what sanctions could be imposed in the event of a guilty finding at the hearing on 22 February 2013. On 25 February 2013, after a response from the respondent’s representatives, the applicant raised a dispute on the interpretation and application of the disciplinary policy, and that the Labour Commissioner would be approached for a determination. They also delivered a request for further particulars to the charges in respect of the scheduled disciplinary hearing on the same date, which particulars were provided on 27 February 2013 in the morning. On 27 February 2013 this dispute was referred to the Labour Commissioner followed by a request for postponement of the hearing pending finalisation of the dispute. The respondent’s representatives indicated that they would agree to the postponement if the applicant agreed to the cessation of full pay and benefits relating to his suspension. Instead of applying for a postponement of the hearing and setting out their questions, applicant approached the Labour Court for urgent interdictory relief. Held, the applicant created his own urgency, alternatively failed to make out a case as required by the Labour Court Rules. The applicant could have applied for a postponement of the disciplinary hearing and set out the basis why the hearing

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should not continue. Instead it launched this application on less than one hours notice.

Kamati v Namibia Rights and Responsibilities Incorporated (LC 1-2012) [2013] NALCMD 1 (14 January 2013) Summary: The Labour Court does not have jurisdiction to entertain a claim for unfair dismissal and non-compliance with basic conditions of employment. In terms of section 38 of the Labour Act, 2007 (Act 11 of 2007), such a dispute may be referred to the Labour Commissioner, who must, in turn, refer it to an arbitrator to resolve the dispute though arbitration in accordance with Part C of Chapter 8 of the Act.

Kandukira v Shinguadja (LC 118/2011) [2012] NALCMD 8 (21 September 2012) Summary: Applicant had referred a complaint in terms of Section 49(1)(d) of the Labour Act 2007 to the Office of the Labour Commissioner based on the ground that a trade union - the 2nd respondent in this application – had committed an unfair labour practice in that it had failed to fairly, diligently and in good faith represent its member – the applicant - a member of its bargaining unit - in respect of which the particular trade union in question had been recognised - in arbitration proceedings. First respondent declined the request for referral. Applicant then launching an application for the reviewing and setting aside of such decision. Held, Chapter 5 of the Labour Act 2007 recognises ‘employee’ and trade union’ unfair labour practices. Held, Section 49 defines in what circumstances a trade union can perpetrate an unfair labour practice. Held Although Sections 49 (1)(a)(b) and (c) seem to relate only to unfair labour practices perpetrated in the collective bargaining process not all categories of unfair labour practices listed in the section have to arise in the context of collective bargaining. Held On the face of it - the definition of ‘dispute’ contained in Section 1 – which does not encompass disputes between a member of a trade union and a trade union, clashes with the provisions of Chapter 5. To allow the definition to override the clear provisions of Chapter 5 would lead to an absurdity as quite clearly the legislature had intended a remedy for a party aggrieved by an ‘employee and trade union unfair labour practice’ and it was for such purpose that the provisions of Chapter 5 of the Act were enacted.
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Held, As the chapter expressly contemplates that an unfair labour practice can be perpetrated between a union and its members it would lead to further absurdity if any as such unfair labour practice could not be referred as a ‘dispute’ to the Labour Commissioner and would not be treated by him as such. Held, Provisions of Section 49 (1)(d) as read with Section 51(1) accordingly affording a remedy to an aggrieved member of a trade union in accordance with the underlying purpose of the Act. The applicant’s referral of a dispute relating to the non-compliance with- or a contravention by the second respondent of Section 49 (1)(d) thus competent. Held, Once the requirements of Sections 51(1) and (2) had been satisfied – it was common cause that these pre-conditions had been met –first respondent had to act in terms of the obligations imposed on him by Section 51(3) and refer the applicants lodged dispute to an arbitrator or conciliator to resolve the dispute through arbitration or conciliation in accordance with part C of Chapter 8 of the Labour Act. Held, A case for the review and setting aside of the first respondent’s decision accordingly made out.

Mokwena vs Shinguadja (LC 52/2011) [2013] NALCMD 10 (28 March 2013) Summary: Labour Law – Arbitral award – Application to review and set aside award in terms of the Labour Act 11 of 2007, s 89(4) and (5) – Court setting out the four categories of judicial review in our law and concluding that review under s 89 of the Labour Act is a category of judicial review governed by the Labour Act as the applicable legislation – Consequently, court holding that for the applicant to succeed the applicant must prove the existence of one or more of the grounds set out in subsection (4), read with subsection (5) of s 89 of the Labour Act – Court holding further that an arbitration is a tribunal within the meaning of Article 12(1)(a) of the Namibian Constitution. Summary: Labour Law – Arbitral award – Application to review and set aside award in terms of the Labour Act 11 of 2007, s 89(4) and (5), read, with rule 6(1) of the Rules of the Labour Court – Court holding that facts (or grounds) not set out in the notice of motion not available to applicant during hearing – Accordingly, submissions by counsel (oral or written) during the hearing of application are not facts within the meaning of rule 6(1) of the Rules of the Labour Court and therefore should not be considered by the court as such.

Namib Mills (Pty) Ltd vs Shigwedha (LCA 34/2012) [2013] NALCMD 6 (22 February 2013)
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Summary: Labour law – Arbitral award – Appeal against – Arbitrator’s conclusion is that disciplinary hearing of employee was unfair based solely on arbitrator’s finding that there was no proper interpreter who could speak employee’s mother tongue – Court rejected arbitrator’s conclusion on the basis that employee never complained to chairperson of the disciplinary hearing that he did not understand the proceedings when he pleaded guilty to three charges and not guilty to the rest of the charges – Court finding that two of the charges to which employee pleaded guilty are so serious that employer was justified to dismiss – Court held that there is no principle of our labour that where employee is charged with more than one charge and only some of them are proved against him or her, employee cannot be dismissed solely for that fact – Court finding that flagrant disregard for safety standards (charge 3) and leaving the workplace without permission or authorization (charge 6) (which employee pleaded guilty to) are very serious offences – Court concluded that under charge 3 employee breached a very important employee’s statutory duty under Chapter 4 of the Labour Act 11 of 2007 – Court concluded that employer had a valid and fair reason to dismiss – Consequently court concluded therefore that employer satisfied the requirements of s 33(1) of the Labour Act. Summary: Labour law – Appeal – In terms of rule 17(25) of the Labour Court Rules – Interpretation and application – Court satisfied with proof of service that notice of hearing date, notice of set down and appellant’s counsel’s heads of argument were properly served on respondent but respondent failed to appear in person or by counsel – Court decided appeal could be heard – Court reasoning that rule 17(25) infuses a sense of urgency and expeditiousness in the prosecution of appeals in the court and court ought not, unless good reasons exist, delay determination of an appeal which delay might thwart appellant’s effort to prosecute appeal within the statutory time limit.

Rosh Pinah Zinc Corporation (Pty) Ltd v Murongo (LCA 36/2012) [2013] NALCMD 3 (24 January 2013) Summary: Employee employed as a loader driver – As a result of a non-work related accident, employee no longer capable of work as a loader driver – Employer retained employee in other temporary positions at his former salary – New posts then created by employer to accommodate employee but at a lower salary – Employee declined to accept appointment – Employee then dismissed – Finding by the court a quo that the dismissal was unfair – Employer appealed against the decision – Held on appeal that dismissal not unfair – Appeal upheld.

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Schmitz Services CC vs Titus (LCA 44/2012) [2013] NALCMD 12 (16 April 2013) Summary: Labour law – Arbitral award – Appeal against – Employee charged with misconduct of bursting into his principal’s office unceremoniously and negatively interrupting a meeting between the principal and an invaluable client and pointing his finger at the client and calling him a liar for an incident that had occurred outside the workplace – Employee was dismissed after a disciplinary hearing – Arbitrator found that hearing was unprocedurally unfair and also that the employee’s guilt was not proved – Court rejected arbitrator’s findings because the evidence placed before arbitrator did not account for the arbitrator’s finding – Court therefore rejected arbitrator’s finding that the dismissal is procedurally and substantively unfair – Court concluded that on the facts and in the circumstances of the commission of the misconduct the dismissal is fair within the meaning of s 33(1) of the Labour Act 11 of 2007 – Consequently court set aside arbitrator’s order for payment by the employer of monetary compensation and severance pay to the employee whose dismissal is fair. Summary: Labour law – Severance pay – Payment to employee who separates from his or her employment – In the interpretation and application of subsection (1), read with subsection (2), of s 35 of the Labour Act 11 of 2007 payment of severance pay does not apply to each and every employee who separates from his or her employment – In the instance case the court held that since the employee’s dismissal for misconduct is fair payment of severance pay does not apply to him in virtue of s 35(2) of the Labour Act.

The Minister of Education v The Interim Khomas Teachers Strategic Committee and All Persons forming part of the Collective Body of the First Respondent (LC 166/2012) [2013] NALCMD 2 (23 January 2013). Summary: Contempt of court – Civil contempt – Sentence – Purpose of sentence not merely punitive but to coerce offender to act in accordance with order of court – Court has duty to ensure respect for orders of court and promote proper administration of justice – Sentence should fulfill these duties – Court finding that the 2 November 2012 order whose disobedience resulted in the contempt proceeding has now been obeyed – Court taking this and personal circumstances of the respondents and seriousness of the contempt into account – Court suspending sentence wholly. Van Niekerk v MB Truck Spares (LC 72/2013) [2013] NALCMD 20 (20 June 2013) Summary: Urgent application for stay of operation of the Arbitrator’s award pending the
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outcome of the appeal. Applicant not completing form LC 41 as prescribed by Rules relating to the Conduct of Conciliation and Arbitration – No appeal before Court. First point in limine by respondent upheld and application dismissed.

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