samaria v angula (lc 129-2012) [2015] nahcmd 6 (18 … court/judgments/labour/sam… · web...
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REPUBLIC OF NAMIBIA
LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEKJUDGMENT
Case no: LC 129/2012
In the matter between:
RIAAN FRANS SAMARIA APPLICANT
and
ONO ANGULA N.O. 1ST RESPONDENT
LABOUR COMMISSIONER N.O. 2ND RESPONDENT
RÖSSING URANIUM LIMITED 3RD RESPONDENT
Neutral citation: Samaria v Angula (LC 129/2012) [2015] NAHCMD 6 (18 March 2015)
Coram: UEITELE, J
Heard: 06 February 2014
Delivered: 18 March 2015
Reasons on: 10 April 2015
Flynote: 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 the grounds, any one of which, the applicant should prove exists in order to
succeed.
2
Labour Law -The award - Review of - Grounds for review – Gross Irregularity - Labour
Act 11 of 2007 s 89(5) - What constitutes - Applicable principles reiterated.
Summary: The applicant was employed by the third respondent. During May /June
2011 the applicant was charged with misconduct by the third responded. After a
disciplinary hearing which took place over a period of three months the applicant was
found guilty of misconduct and the chairperson of the disciplinary hearing recommended
that the applicant be dismissed from the third respondent’s employment.
The applicant appealed against the decision recommending his dismissal, the appeal
hearing took place on 16 November 2011 and on 17 November 2011. The third
respondent’s General Manager addressed a letter to the applicant in which letter the
applicant was informed that the dismissal was upheld.
On 18 May 2012, the applicant’s legal practitioners send, by means of a facsimile, a
Form LC 21 referral of a dispute of unfair dismissal and unfair labour practice to the
second respondent’s office at Swakopmund. The second respondent (the Labour
Commissioner) designated the first respondent as the arbitrator.
The applicant’s compliant was set down for conciliation on 10 August 2012. On that
date, the third respondent’s representative raised a point in limine that the referral was
made outside the six months’ time limit set by s 86 (1) & (2) of Labour Act, 2007. The
arbitrator found in favour of the third respondent and dismissed the applicant’s
complaint.
Following the dismissal of his complaint the applicant approached this court seeking an
order reviewing, correcting or setting aside the entire arbitration proceedings presided
over by the first respondent under case no. CRSW 64-12 as well as the award dated 10
August 2012 issued subsequent thereto.
Held that in review proceedings it is a prerequisite for the setting aside of an award
resulting from arbitration proceedings to proof that the arbitrator misconducted himself in
relation to his duties or committed a gross irregularity in the conduct of the arbitration .
3
The onus rests upon the applicant to establish the misconduct or irregularity committed
by the arbitrator.
Held furthermore that all the grounds tabulated by the applicant do not relate to the
conduct of the proceedings or method of arbitration, but rather to the result of the
arbitration proceedings.
Held furthermore that an irregularity in proceedings does not mean an incorrect
judgment; it refers not to the result but to the method of trial. In this matter the
applicant’s' contentions fall entirely short of this establishing misconduct on the part of
the arbitrator or an irregularity in the arbitration proceedings.
___________________________________________________________________
ORDER
1 That the applicant’s application to review and set aside the arbitration award is
dismissed.
2 That there is no order as to costs.
JUDGMENT
UEITELE, J
A Introduction and background
[1] This is an application in which Mr. Riaan Frans Samaria (I will, in this judgment,
refer to him as “the applicant”) applies for an order in the following terms:
‘1. An order reviewing, correcting or setting aside the entire arbitration proceedings
presided over by the first respondent under case no. CRSW 64-12 as well as the
award dated 10 August 2012 issued subsequent thereto;
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2. An order reviewing, correcting or setting aside the first respondent’s decision that
the dispute referred to the Labour Commissioner’s office by the applicant was only
so referred after six months;
3 An order reviewing, correcting or setting aside the first respondent’s decision to
dismiss the dispute referred to the Labour Commissioner’s office by the applicant;
4 An order referring the dispute back to the second respondent for arbitration;
5 An order directing the second respondent to appoint another arbitrator to arbitrate
in this dispute.’
[2] The background to the applicant’s application is briefly as follows. The applicant
was employed by Rössing Uranium (Pty) Limited, who is the third respondent in this
matter (I will in this judgment refer to Rössing Uranium (Pty) Limited as the “third
respondent”) until 17 November 2011. During May /June 2011 the applicant was
charged with misconduct by the third responded. The disciplinary hearing took place on
01 June 2011, 17 June 2011 and 21 July 2011. On 05 August 2011 the chairperson of
the disciplinary committee found the applicant guilty of misconduct and recommended
that the applicant be dismissed from the third respondent’s employment. The applicant
appealed against the decision recommending his dismissal, the appeal hearing took
place on 16 November 2011 and on 17 November 2011. The third respondent’s
General Manager: Processing addressed a letter to the applicant in which letter the
applicant was informed that the dismissal was upheld. The applicant alleges that he
only received the letter of 17 November 2011 on 24 November 2011.
[3] On 18 May 2012, the applicant’s legal practitioners send, by means of a
facsimile, a Form LC 21 referral of a dispute of unfair dismissal and unfair labour
practice to the Labour Commissioner’s (who is cited as the second respondent in this
application) office at Swakopmund (I will in this judgment refer to the second respondent
as the Labour Commissioner). The Labour Commissioner designated Mr. Ono Angula
as the Arbitrator/Conciliator of the dispute. Mr. Ono Angula is cited in this application as
the first respondent (I will in this judgment refer to Mr. Angula as the arbitrator).
[4] The applicant’s compliant was set down for conciliation on 10 August 2012. On
that date, the third respondent’s representative raised a point in limine that the referral
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was made outside the six months’ time limit set by the Labour Act, 20071. The arbitrator
found in favour of the third respondent and dismissed the applicant’s complaint. In the
arbitration award the arbitrator amongst others said the following (I quote verbatim the
relevant portion):
‘5 Facts not in dispute shows that:
- date on which dispute arose 16 November 2011;
- matter referred to the Labour Commissioner on 28 May 2012. Unfair Dismissal
should be referred within six Months after the date of dismissal, the deadline in
this would have been the 17 May 2012.
- the Labour Commissioner has in terms of Section 86(4) informed the parties on
13 June 2012.
6 There was no Application of Condonation for late filling made.
7 After having listened to the issues and facts being presented, I am convinced that
the dispute is out of time and not in compliance with the provisions of the Labour
Act 11 of 2007.
In the result the matter is hereby dismissed as required by the Labour Act and the
applicable Rules.’
[5] The applicant is aggrieved by the finding and decision of the arbitrator and it is
that finding and decision which the applicant want this court to review and set aside.
The applicant set out the grounds on which he wishes to have the finding and decision
of the arbitrator reviewed and set aside as follows (I again quote verbatim the relevant
portions):
‘ 23
1 Act No.11 of 2007. Section 86 (1) & (2) provides as follows:
‘86 Resolving disputes by arbitration through Labour Commissioner
(1) Unless the collective agreement provides for referral of disputes 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 subsection (1) only-(a) within six months after the date of dismissal, if the dispute concerns a dismissal; or(b) within one year after the dispute arising, in any other case.’
6
…the first respondent’s conduct and attitude rendered denied me the opportunity to
present my case and to receive a fair hearing. His conduct not only gave rise to a
reasonable apprehension of bias but he was openly hostile to me.
24
…the events of 10 August 2012 show that the arbitration hearing was characterized by
several gross irregularities. These include:
24.1 the refusal by the first respondent (i.e. the arbitrator) to concede that the referral
documents were properly served on her office on the 18 May 2012;
24.2 the first respondent’s decision that as the secretary in her office did not give the
documents to her the documents were therefore not served on 18 May 2012
despite admitting that the fax number reflected in the fax transmission report was
that of her office;
24.3 first respondent’s refusal to use the universally accepted method of computing
day and months;
24.4 the first respondent’s decision to ignore the fact that the 17 th May 2012 was a
public holiday and that 18 May 2018 being the following normal working day was
the last day for the referral of the dispute;
24.5 the first respondent’s decision to penalize me for the inefficiency of her office by
deciding that if an employee in her office did not give the documents to her on
the 18 May 2012 he dispute was not referred within he time provided.’
B The applicable legal principles
[6] The applicant has launched his application in terms of s 89 (4) of the Act. That
section in material terms reads as follows:
‘(4) A party to a dispute who alleges a defect in any arbitration proceedings in terms
of this Part may apply to the Labour Court for an order reviewing and setting aside the
award-
(a) within 30 days after the award was served on the party, unless the
alleged defect involves corruption; or
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(b) if the alleged defect involves corruption, within six weeks after the date
that the applicant discovers the corruption.
(5) A defect referred to in subsection (4) means-
(a) that the arbitrator-
(i) committed misconduct in relation to the duties of an arbitrator;
(ii) committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii) exceeded the arbitrator's power; or
(b) that the award has been improperly obtained.’
[7] My reading of s 89(4) of the Labour Act, 2007 is that a party to a dispute which
has been conciliated or arbitrated upon in terms of the Act may, not later than thirty
days from the date on which the award is served on him or her, institute review
proceedings to set aside a resultant award if he or she alleges that there is or was a
defect in the conciliation or arbitration proceedings.
[8] Defect is defined to mean misconduct in relation to the duties of an arbitrator, or
a gross irregularity in the conduct of the arbitration proceedings; or exceeding of power
by the arbitrator or that the award has been improperly obtained2. Parker3 opines that
‘there is no room for additional grounds on which an alleged ‘defect’ in conciliation or
arbitration proceedings can be based as far as the Labour Act, 2007 is concerned’. I
express no views on this opinion at this point since the issue which I am called upon to
decide is whether the dismissal by the arbitrator of the applicant’s complaint amounts to
a defect or irregularity as contemplated in section 89(4) & (5) of the Labour Act, 2007. I
now proceed to consider the meaning which has been given by the courts to the
different grounds of review.
Misconduct
2 See section 89(5) of the Labour Act, 2007.3 Parker C Labour Law in Namibia Unam Press 2012 at 214. Also see the unreported judgment of
Mokwena v Shinguadja and Another (LC 52/2011) [2013] NALCMD 10 (28 March 2013).
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[9] The meaning of the term ‘misconduct’ in relation to arbitration proceedings was
considered some one hundred years ago in the matter of Dickenson and Brown v
Fisher's Executors4. In that case the Appellate Division of the Supreme Court of Appeal
of South Africa was concerned with the question whether it could set aside an award
made in terms of the Natal Arbitration Act 24 of 1898. Section 18 of the Natal Act 24 of
1898 provided that, “Where an arbitrator or umpire has misconducted himself or where
an arbitration award has been improperly procured, the Court may set the appointment
or award aside.” Solomon, JA who delivered the Court’s judgment said5:
‘Now I do not propose to give any definition of the word ‘misconduct’ for it is a word
which explains itself. And if it is used in its ordinary sense, I fail to see how there can be
any misconduct unless there has been some wrongful or improper conduct on the part of
the person whose behavior is in question…Now if the word misconduct is to be
construed in its ordinary sense it seem to me impossible to hold that a bona fide mistake
either of law or of fact made by an arbitrator can be characterised as misconduct, any
more than that a judge can be said to have misconducted himself if he gives an
erroneous decision on a point of law…Cases may no doubt arise where…’the mistake is
so gross or manifest that it could not have been made without some degree of
misconduct or partiality on the part of the arbitrator’…But in ordinary circumstances
where an arbitrator has given fair consideration to the matter which has been submitted
to him for decision, I think it would be impossible to hold that he had been guilty of
misconduct merely because he had made a bona fide mistake either of law or of fact.'
[10] In the matter of Donner v Ehrlich6, the court had to consider the meaning of s
16(2) of Ordinance 24 of 1904 (T) which provided that: 'When an arbitrator or umpire
has misconducted himself or an arbitration or award has been improperly procured the
Court may set the award aside .' Solomon, J said:
'As I read Dickenson & Brown v Fisher's Executors 1915 AD 166, the misconduct which
entitled a Court to set aside the award of an arbitrator must amount to dishonesty. I think
that is the true reading of the judgment. It is possible that dishonesty may be inferred
from the manner in which the arbitration has been held; in other words, there need not be
direct proof that the arbitrator, for example, has accepted a bribe, in order to find him
guilty of misconduct. But I think that, unless I have misinterpreted the judgment in that
4 1915 AD 166.5 At 175-176.6 1928 WLD 159.
9
case, this Court could not upset the award in the present case unless dishonesty were
adduced from the evidence or the manner in which the arbitration has been conducted.'
[11] In the case of Hyperchemicals International (Pty) Ltd and Another v Maybaker
Agrichem (Pty) Ltd and Another7 Preiss, J stated that:
‘Mistake, no matter how gross, is not misconduct; at most, gross mistake may provide
evidence of misconduct in the sense that it may be so gross or manifest that it could not
have been made without misconduct on the part of the arbitrator. In such a case a Court
might be justified in drawing an inference of misconduct. The award would then be set
aside, not for mistake, but for misconduct.’
[12] In the case of Total Support Management (Pty) Ltd and Another v Diversified
Health Systems (SA) (Pty) Ltd and Another8 the South African Supreme Court of Appeal
held that:
‘Proof that the second respondent misconducted himself in relation to his duties or
committed a gross irregularity in the conduct of the arbitration is a prerequisite for setting
aside the award. The onus rests upon the appellants in this regard. As appears from the
authorities to which I have referred, the basis on which an award will be set aside on the
grounds of misconduct is a very narrow one. A gross or manifest mistake is not per se
misconduct. At best it provides evidence of misconduct which, taken alone or in
conjunction with other considerations, will ultimately have to be sufficiently compelling to
justify an inference (as the most likely inference) of what has variously been described
as 'wrongful and improper conduct', 'dishonesty' and 'mala fides or partiality' and 'moral
turpitude”. {I have omitted references to authorities}
Gross Irregularity
[13] The term ‘gross irregularity’ has been discussed in a number of reported cases
(South African) which I find persuasive. In the case of Bester v Easigas (Pty) Ltd and
Another9 Brand, AJ said:
‘From these authorities it appears, firstly, that the ground of review envisaged by the use
of this phrase [i.e. gross irregularity] relates to the conduct of the proceedings and not
7 1992 (1) SA 89 (W) at 100.8 2002 (4) SA 661 (SCA).9 1993 (1) SA 30 (C).
10
the result thereof… But an irregularity in proceedings does not mean an incorrect
judgment; it refers not to the result but to the method of a trial, such as, for example,
some high-handed or mistaken action which has prevented the aggrieved party from
having his case fully and fairly determined. Secondly it appears from these authorities
that every irregularity in the proceedings will not constitute a ground for review on the
basis under consideration. In order to justify a review on this basis, the irregularity must
have been of such a serious nature that it resulted in the aggrieved party not having his
case fully and fairly determined. {My Emphasis}
[14] Also see Parker10 who argues that:
‘Gross irregularity will be found to exist where there has been a breach of the rules of
natural justice resulting in the aggrieved party not having had his case heard and fairly
determined.’
[15] In the matter of Purity Manganese (Pty) Ltd v Shikongo NO and Others11 Miller, AJ said the following:
‘[13] It must be borne in mind that the Labour Act does not permit appeals against
findings of fact per se arrived at by an arbitrator in arbitration proceedings.
[14] The question then remains under what circumstances an aggrieved party may
resort to review proceedings, instead of the limited and circumscribed right to appeal
against findings of fact. Ostensibly the line drawn between the two options appears to be
thin. There is, however, in the basic approach to the issue a fundamental difference. As
a matter of course, a trier of fact sitting as a court or tribunal of first instance, will find
certain facts proved and others not.
[15] An applicant seeking to review and set aside those findings faces a stiffer and
higher hurdle than it would in an appeal. The applicant on review must establish not only
that the finding of fact is arguably wrong. The error in the factual finding must be of such
a nature that no reasonable trier of fact would have come to a similar finding.’
[16] Earlier on in the judgment the learned judge said:
10 Supra footnote 3 at 199.11 2013 (2) NR 473 (LC).
11
‘[10] The mainstay of the argument advanced by Mr. Hinda who appeared for the
respondents who opposed the application, was that the applicant failed to bring itself
within the ambit of those subsections, with the result that it is not entitled to the relief it
claims.
[11] To my mind this approach is too narrow. Section 89(4) and 89(5) of the Labour
Act must be read in conjunction with the provisions contained in the Constitution of
Namibia. Articles 12 and 18 of the Constitution provides for fairness and reasonableness
in the determination of disputes. In Eilo and Another v Permanent Secretary of Education and Others 2008 (2) NR 532 (LC) Parker P said the following at 539H –
540A:
'I will take matters further and say that since, in my view, the first respondent is
an administrative official and the fifth respondent's commission is an
administrative body, the provisions of art 18 of the Namibian Constitution apply to
them in the exercise of their statutory powers and the performance of their
statutory functions. In Kahuure and 10 Others v Mbanderu Traditional Authority
and Others Case No: (P)A 114/2006 at 20 – 22 (unreported), I discussed in some
detail the content and principles underlying the provisions of art 18; and relying
on Levy AJ's dictum in Frank and Another (HC) supra at 265E, I said in Kahuure
that art 18 does not repeal the common law; it embraces it.'
These principles apply equally to arbitration tribunals constituted in terms of the Labour
Act.’
[17] I fully agree with the principle that s 89(4) & (5) of the Labour Act must be read in
conjunction with the provisions contained in the Constitution of Namibia. Articles 12 and
18 of the Constitution provides for fairness and reasonableness in the determination of
disputes. I however, respectfully disagree with the conclusion by the learned judge that
an applicant in review proceedings must establish not only that the finding of fact is
arguably wrong but that the error in the factual finding must be of such a nature that no
reasonable trier of fact would have come to a similar finding. This approach by the
learned judge clearly blurs the distinction between the conduct in the arbitration
proceedings and the result of the arbitration proceedings. Even at common law there is a
distinction between review and appeal.12 The distinction between review and appeal
12 See the case of Johannesburg Consolidated Investment Co Ltd v Johannesburg Town Council 1903 TS 11 at 114-16.
12
does not in any way violate or infringe on the Constitutional provisions guaranteeing
fairness and reasonableness in the determination of criminal and civil disputes.
Exceeding of power & improperly obtained award
[18] The third ground envisaged in s 89(5)(a)(iii) of the Act for the setting aside of an
arbitration award is where an arbitrator exceeded his or her powers under an arbitration
agreement or under the Act pursuant to which the arbitration is conducted. The
arbitrator must confine himself or herself to adjudicate the dispute submitted to him or
her. An award may furthermore be set aside if it was improperly obtained for example
through corruption, fraud or bribery.13
C Application of the law to the facts
[19] I find it appropriate to state that in review proceedings it is a is a prerequisite for
the setting aside of an award resulting from arbitration proceedings to proof that the
arbitrator misconducted himself in relation to his duties or committed a gross irregularity
in the conduct of the arbitration or exceeded his powers or improperly granted the
award. The onus rests upon the applicant to establish the misconduct or irregularity
committed or exceeding of power by the arbitrator or the impropriety of the award..14
[20] In this matter the applicant alleges that the arbitrator’s conduct and attitude
denied him the opportunity to present his case and to receive a fair hearing. He further
alleges that, the arbitrator’s conduct not only gave rise to a reasonable apprehension of
bias but that the arbitrator was openly hostile to him. The difficulty that I have with the
applicant’s allegations is the fact that the allegations are nothing but conclusions which
he has arrived at without him laying the factual foundations or basis for arriving at those
conclusions. The record of proceedings that was placed before me does not reveal what
transpired at the proceedings of 10 August 2012, there is no typed version of those
proceedings, the record consist of the arbitration award, the faxing reports dated 18
May 2012, 28 May 2012, 13 June 2012, 30 June 2012 and 11 August 2012, proof of
registered mail send dated 28 May 2012, Forms correspondences (per facsimile) dated
18 May 2012,28 May 2012, 12 June 2012, 26 and 26 June 2012 from the offices of Sisa
13 See the case of Graaf-Reinet Municipality v Jansen 1917 CPD 604.14 See the case of Total Support Management (Pty) Ltd and Another v Diversified Health Systems (SA)
(Pty) Ltd and Another footnote 8 supra.
13
Namandje & Co Inc to the Labour Commissioner and Forms LC 21, 29 and Form LG
36.
[21] It is not uncommon that in many judicial proceedings a party to those
proceedings first raises preliminary objections and the adjudicator consider those
preliminary objects before he ventures into the merits of the dispute. If the adjudicator
upholds the preliminary objections the matter is then disposed off, this does not mean
that the other party has been denied a fair hearing as long as he has been given an
opportunity to reply to the preliminary objections. It appears that, that is what happened
in this matter on 10 August 2012. At the arbitration hearing the third respondent raised a
point in limine (the parties argued the point) and the arbitrator after hearing arguments
upheld the point and dismissed the applicant’s complaint.
[22] The applicant furthermore alleges that arbitration proceedings of 10 August 2012
were characterized by several gross irregularities. He tabulates the alleged irregularities
the fact that the arbitrator;
(a) allegedly refused to concede that the referral documents were properly served on
his office on the 18 May 2012;
(b) held that the fact that the secretary in his office did not give him the documents
as a result the referral documents were not served 18 May 2012;
(c) refused to use the universally accepted method of computing day and months;
(d) ignored the fact that the 17th May 2012 was a public holiday and that 18 May 2018
being the following normal working day was the last day for the referral of the
dispute;
(e) penalize him for the inefficiency of his office by deciding that if an employee in his
office did not give the documents to him on the 18 May 2012 the dispute was not
referred within he time provided.
[23] In my view all the grounds tabulated by the applicant do not relate to the conduct
of the proceedings or method of arbitration, but rather relate to the result of the
arbitration proceedings. What the applicant is complaining about is the result of the
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arbitration proceedings. It has been held and I agree with the statement of the law in
that regard that an irregularity in proceedings does not mean an incorrect judgment; it
refers not to the result but to the method of trial. In this matter the applicant’s'
contentions fall entirely short of this establishing misconduct on the part of the arbitrator
or irregular conduct in the arbitration proceedings exceeding of power by the arbitrator r
an improperly obtain award. I am accordingly of the view that the applicant has failed to
establish misconduct or gross irregularity on the part of the arbitrator.
[24] In the result I make the following order:
1. That the applicant’s application to review and set aside the arbitration
award is dismissed.
2 That there is no order as to costs
.
---------------------------------
SFI Ueitele
Judge
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APPEARANCES
APPLICANT: M Ntinda
Of Sisa Namandje & Co Inc, Windhoek
FIRST RESPONDENT: J Boltman
Of GF Köpplinger Legal Practitioners,
Windhoek