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(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?
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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Case notes
Practice of Labour Law
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.
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’s dismissal.
3
Case notes
Practice of Labour Law
Constructive Dismissal
Reinstatement Denied
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
4
Case notes
Practice of Labour Law
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
See also: Shiimi v Windhoek Schlacteri (Pty) Ltd. NLLP2002(2) 244 NLC.
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Case notes
Practice of Labour Law
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:
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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Case notes
Practice of Labour Law
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
Effect of settlement
“ 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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Case notes
Practice of Labour Law
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
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;
Application granted.
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Case notes
Practice of Labour Law
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:
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:
'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'.
9
Case notes
Practice of Labour Law
14. Joe Gross T/A Joe's Beer House V Meintjies 2005 NR 413 (SC)
10
Case notes
Practice of Labour Law
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.
15. Kiggundu And Others V Roads Authority And Others 2007 (1) NR 175 (LC)
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.
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.
11
Case notes
Practice of Labour Law
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 of High Court is not an employee of the State within the meaning of the
Labour Act.
12
Case notes
Practice of Labour Law
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
d. Court will take into account the merits of the action sought to be reviewed
c. Applicant has not shown that could get redress at a hearing in due course
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Case notes
Practice of Labour Law
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
14
Case notes
Practice of Labour Law
22. Melvin van Wyk v Elizabeth Cornelia Gowaseb and another LC 40/2008
Rescission
15
Case notes
Practice of Labour Law
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?
16
Case notes
Practice of Labour 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'.
27. Seamen And Allied Workers Union v Cadilu Fishing (Pty) Ltd 2005 Nr 257 (LC)
17
Case notes
Practice of Labour Law
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.
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.
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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Case notes
Practice of Labour Law
19