SUMMARY

CASE NO. LCA 47/2007

PUPKEWITZ HOLDINGS (PTY) LTD Appellant

and

PETRUS
MUTANUKA & OTHERS Respondents

Heard on: 2008 June 27

Delivered
on: 2008 July 3

PARKER, P

________________________________________________________________________

Labour law - Appeal from decision of district
labour court – Appeal to Labour Court is appeal on the record,
and not rehearing in true sense – If discretion by court of
original jurisdiction has been exercised judicially and for sound
reason, court of appeal ought to be slow to interfere and substitute
its decision – Court finding no misdirection or irregularity to
justify interfering with lower court’s decision that dismissals
were not for valid and fair reasons.

Labour law
- Rule 6 (6) of District Labour Court Rules – Interpretation of
– The mere filing of a document with clerk of the court does not
prima facie constitute proof of truthfulness of contents of the
document where the document is not agreed document between parties –
Court finding that documents filed by labour inspector with clerk of
court ought to have been properly admitted and evidence led on them.

Labour law
- Unfair dismissal – Onus on employer to prove it had a valid
and fair reason to dismiss (substantive fairness) – Court holding
that where a court finds dismissal was not for a valid and fair
reason after conducting of internal disciplinary hearing, it serves
no purpose for court to enquire further whether disciplinary hearing
was conducted in a manner that was procedurally fair.

Labour law
- Compensation – Award of – Factors to be considered when
making award – Amount awarded must be easily ascertainable and
possible to calculate.

Labour law - Reinstatement – Award of –
Factors to be taken into account when considering order of
reinstatement – Reinstatement already a tremendous inroad into
common law principle that contracts of employment cannot normally be
specifically enforced – Accordingly, discretion to order
reinstatement must be exercised judicially and on sound grounds –
Court finding that in circumstances of present case the district
labour court was wrong in ordering reinstatement.

CASE NO. LCA 47/2007

IN THE LABOUR COURT OF NAMIBIA

In the matter between:

PUPKEWITZ
HOLDINGS (PTY) LTD Appellant

and

PETRUS MUTANUKA & OTHERS Respondents

CORAM: PARKER, P

Heard
on: 2008 June 27

Delivered
on: 2008 July 3

_______________________________________________________________

JUDGMENT

PARKER, P:

[1] This is
an appeal from the Rundu District Labour Court against the judgment
of that court delivered on 17 February 2006 in which the court
ordered:

that the complainants (Mutanuka, Mpasi, Muyeu, and
Katebo) be compensated from the date of dismissal and to be
reinstated as in their previous positions.

[2] At the
commencement of this appeal hearing, Ms Bassingthwaighte, counsel for
the respondents, informed the Court that she was abandoning the point
in limine concerning the appellant’s alleged late filing of
the notice of appeal because it was apparently filed within the time
limit. Counsel took the point about the admissibility of the minutes
of the disciplinary hearing and attachments thereto in her arguments
on the merits.

[3] I
respectfully accept Ms Bassingthwaighte’s submission that an
employee must be afforded reasonable opportunity to prepare for, and
to attend, his or her disciplinary hearing, to give evidence, to call
witnesses to testify on his behalf, and to put questions to witnesses
called to testify against him or her, and to be informed about appeal
procedures in pursuit of procedural fairness. The appellant says
such opportunity and information was given to the respondents; the
respondents deny that.

[4] In this
regard, Ms Bassingthwaighte submitted that the “procedural issues
could only have been dealt with by the Chairperson of the
disciplinary hearing who did not testify”. The better evidence, in
my opinion, in these matters is for a proper and useful record of the
proceedings to be properly placed before the court and admitted as
evidence of the compiler of the record; in the instant case, the
chairperson of the disciplinary hearing. It is important to note
that the record before this Court contains crucial documents –
documents whose contents were critical for the determination of the
issues that the lower court was called upon to decide, viz. whether
the complainants’ dismissals were fair. The documents are “Notice
of suspension and a disciplinary hearing”, together with its
attachments, in respect of the complainants. With regard to Katebo,
Mutanuka and Mpasi, there is even a document indicating their
“acknowledgement of debt”.

[5] From the
evidence, I see that copies of the documents concerning the
disciplinary later filed with the clerk of the district labour court
in terms of rule 6 (6) of the District Labour Court Rules. Rule 6
(6) provides:

In the event that a settlement cannot be reached, the
parties shall co-operate with the labour inspector to identify such
facts and documents relevant to the complaint or to the defence
thereto which are not in dispute and a list of facts and documents so
agreed upon, if any, shall be prepared by the labour inspector,
signed by the parties and filed by the labour inspector with the
clerk of the court not later than three days prior to the date of the
hearing, or if no such facts or documents can be agreed upon, a
notice to the court to that effect by the labour inspector shall be
so filed with the clerk of the court.

[6] Mr
Visser, counsel for the appellant, submitted that the minutes of the
disciplinary hearings in respect of the respondents and all the
attachments, particularly pages 15 to 64 of the bundle, were filed by
the labour inspector, Mr Kabwata, with the lower court in terms of
rule 6 (6) of the Rules. Therefore, counsel argued, the documents
were available to the court and Mr Kasera, the respondents’
representative during the district labour court hearing, referred to
some contents of some of the documents. Counsel argued further that
Mr Kasera did not take issue with the contents of the documents.

[7] Ms
Bassingthwaighte’s response was simply that the documents did not
form a part of the record of the proceedings in the district labour
court, and therefore they cannot be placed before this Court in its
capacity as an appeal court in the present appeal.

[8] As I
understand it, in terms of rule 6 (6), if the documents are agreed
documents the parties must signify that they are agreed documents by
signing them. Paragraph 3 of the labour inspector’s report appears
to suggest that the documents were agreed documents, and yet they
have not been signed to signify such agreement. Accordingly, I find
that the documents were not agreed documents; and therefore it was
not sufficient for the purposes of the hearing at the lower court for
the appellant to have contented itself with the mere fact that the
documents had been filed with the clerk of the court. Since they
were not agreed documents, as I have found, they ought to have been
properly admitted as part of the evidence of the appellant. What is
more, rule 6 (6) does not say that the mere filing of a document that
the parties have not agreed on constitutes a prima facie proof of the
truthfulness of its contents. Indeed, in the instant case, all the
respondents denied they made any admissions that they stole anything,
including money, from the appellant.

[9] I am
therefore not surprised that the learned chairperson of the district
labour court did not make any marked reference to the documents in
her judgment: the reason, as I see it, is that the documents were not
properly admitted. For this reason, Mr Visser’s submission that Mr
Du Plessis’s evidence was corroborated by the minutes of the
disciplinary hearings falls to be rejected. As the learned
chairperson ruled interlocutorily, the appellant was aware that the
issue of substantive unfairness was in dispute, and before the
appellant closed its case “you could have informed the Court that
you wanted to call an additional witness”.

[10] In my
judgment, therefore, the appellant’s failure to call the
chairperson of the disciplinary hearing to testify and have the
documents relevant to the hearings properly admitted as part of his
evidence is fatal to the appellant’s case: this Court cannot now
take cognizance of them. It is also fatal to the appellant’s case
that the labour inspector was not called to testify and have his
report properly admitted, particularly where there was a dispute
concerning paragraph 4 of his report that the main issue in dispute
was “procedural fairness”, which the complainants deny. The
purpose of having a document properly admitted during proceedings is
to enable the other party to cross-examine on it so as to test the
evidence of the maker of the document in keeping with the audi
alteram partem rule of natural justice and in line with the
constitutional requirements of fair trial. This is not a matter of a
rule of evidence, which may be overlooked in terms of rule 10 (1) of
the District Labour Court Rules.

[11] It would
appear from the judgment of the district labour court that the
learned chairperson of the court did not, as Mr Visser submitted,
find that the dismissals were procedurally unfair. That may be so;
but as Ms Bassingthwaighte also submitted, we cannot speculate in
this Court that just because the learned chairperson did not
pronounce herself in her judgment on the issue of procedural
unfairness or fairness, it meant she accepted the appellant’s
version that the disciplinary hearings were conducted in a manner
that was procedurally fair. In my view, once the learned chairperson
had found that each of the dismissals was not for a valid and fair
reason, a further enquiry as to whether the disciplinary hearings
were conducted in a manner that was procedurally fair would have
served no purpose at all. “The fact that the procedure adopted at
the hearing of the disciplinary proceedings gives the employee audi
alteram partem is of little use if there are no grounds for
dismissal”. (SPCA of Namibia v Terblanche 1996 NR 398 at
402A) Thus, based on the record, it would seem the learned
chairperson of the district labour court did not find it necessary to
consider the question of procedural fairness or unfairness; and I
think she was right in taking that course.

[12] I now
proceed to deal with the question of substantive fairness or
unfairness. If the minutes of the disciplinary hearings, together
with their attachments, are expunged from the present proceedings, as
Ms Bassingthwaighte invited me to do, and I think I should accept the
invitation, then based on the evidence that was before the learned
chairperson, in my view, an appeal court acting judicially and fairly
cannot fault the learned chairperson’s decision that there was not
sufficient evidence on which to hang the guilt of the respondents.

[13] In this
connection, it is inexplicable that the chairperson of the
disciplinary hearings was not called to testify. Furthermore, it is
also inexplicable that Mr Coetzee, who, according to Mr Du Plessis
(the appellant’s sole witness during the proceedings in the
district labour court), admitted that he and the complaints “steal
or dispose fuel and take the money and not declaring their sales of
that specific days over a certain period of time (quoted verbatim)”,
was not called to testify and to have his allegations tested in
cross-examination.

[14] It must
be remembered that the appeal to this Court is an appeal on the
record, and not a rehearing in its true sense. The principles
justifying interference with the exercise of an original jurisdiction
are firmly rooted in our practice. If the discretion has been
exercised judicially and for a sound reason, that is, without caprice
or bias or the application of a wrong principle, the appeal court
ought to be slow to interfere and substitute its own decision: it is
not enough that the appeal court considers that, if it was the trial
court, it would have taken a different route (See Pawani and
another v Aching Attorney General 1985 (3) 720 (ZSC).) I do not
find any irregularity or misdirection, and so I have no good reason
to interfere with the district labour court’s decision that the
appellant had failed to discharge its onus of proving that it
dismissed the respondents for fair and valid reasons.

[15] However,
I cannot accept the order made by the learned chairperson in its
entirety. She does not give any reason whatsoever why the
complainants should be compensated from the date of dismissal and to
be reinstated in their previous positions. In any case, the order
regarding compensation is unclear, confusing and difficult to
implement. The calculation of compensation must be related to a
determinate period and the amount thereof must be easily
ascertainable. For instance, in Kamanya supra, this Court
ordered the employer “to pay to each appellant the equivalent of 3
months wages and emoluments on the basis of their monthly average
earnings at the time of their dismissal.”

[16] Compensation
awarded in labour disputes cannot be equated with contractual and
delictual damages. There is an element of solatium present
aimed at redressing injustice in labour relationships. (Pep
Stores (Namibia) (Pty) Ltd v Iyambo and Others 2001 NR 211 (LC))
Thus, compensation awarded in labour disputes should not aim at
punishing an employer or enriching an employee. (Ferodo (Pty) Ltd
v De Ruiter (1993) 14 ILJ 974 (LAC); Camdons Realty
(Pty) and Another v Hart (1993) 14 ILJ 1008 (LAC)) Having
taken all the above factors and considerations into account, and a
fortiori, taking into account the fact that the learned
chairperson’s award of compensation is confusing and the amount
thereof unascertainable and impossible to calculate, it behoves this
Court to make an award of compensation that is easily ascertainable
and the amount thereof capable of calculating.

[17] I now
proceed to deal with the lower court’s award of reinstatement. It
is important to note that to force an employer to reinstate his or
her employee is already a tremendous inroad into the common law
principle that contracts of employment cannot normally be
specifically enforced. Indeed, if one party has no faith in the
honesty and integrity or loyalty of the other, to force that party to
serve or employ that other one is a recipe for disaster. Therefore
the discretionary power to order reinstatement must be exercised
judicially. In the instant case, the likelihood of the appellants
having a similar problem like the one that led to their being charged
cannot entirely be ruled out. Added to this is the fact that the
respondents were dismissed in June 2004 and the district labour court
delivered its judgment in February 2006. In Shiimi v Windhoek
Schlachteri (Pty) Ltd NLLP 2002 (2) 244 NLC, where the
intervening period between the dismissal and delivery of judgment was
about three years, the labour court declined to order reinstatement.
More important, considering the nature of business the appellant
(employer) carries out; I do not think other persons have not already
been employed in the places of the appellants. To order
reinstatement would be greatly unfair to the present employees.
Thus, as this Court observed in Shiimi supra, to dismiss the
new employees in order to accommodate the respondents, no matter how
worthy their case may be, would constitute grave injustice.

[18] In the
circumstances of this case, it is clearly a fitting case where the
district labour court should have exercised its discretion against
ordering reinstatement of the respondents. (See SPCA of Namibia v
Terblanche 1996 NR 398 (LC).) Thus, for all these reasons, I
think I should refuse to confirm the order of reinstatement made by
the district labour court.

[19] It
follows that in my judgment, I should confirm the learned
chairperson’s finding that the dismissals of the respondents were
unfair (even if only substantively unfair); and therefore the appeal
fails in that regard. The appeal succeeds in respect of the award of
reinstatement. The appeal against compensation succeeds to the
extent set out in the order below.

[21] In the
result I make the following orders:

(1) The award of reinstatement is set aside.

(2) The
appellant must pay on or before 15 August 2008 to –

(a) Mutanuka (1^st respondent) an amount equal
to seven months’ remuneration at the time of his dismissal.

(b) Muyeu
(3^rd respondent) an amount equal to seven months’
remuneration at the time of his dismissal.

(c) Mpasi
(2^nd respondent) an amount equal to five months’
remuneration at the time of his dismissal.

(d) Katebo
(3^rd respondent) an amount equal to four months’
remuneration at the time of his dismissal.

(3) There is
no order as to costs.

PARKER, P.

ON BEHALF
OF APPELLANT Mr C H J Visser

Instructed
by: LorentzAngula Inc

ON BEHALF OF THE RESPONDENTS Adv. N
Bassingthwaighte

Instructed
by: Tjitemisa & Associates