REPORTABLE

SUMMARY

CASE
NO.: LCA 67/2009

IN
THE LABOUR COURT OF NAMIBIA

In
the matter between:

EDGARS
STORES (NAMIBIA) LIMITED v LAURIKA OLIVIER AND OTHER

PARKER
J

2010
June 18

____________________________________________________________________________

Labour
Law - Appeal
– Employer’s disciplinary committee dismissing one
employee and giving final written warning to the other employee both
of whom had engaged in a fight at the workplace – Arbitrator
finding dismissal substantively unfair because of employer’s
application of different punishments for the same misconduct or for
similar misconduct – Appeal against arbitrator’s decision
– Court confirming arbitrator’s decision on the facts and
circumstances of the case.

Labour
Law - Reinstatement
– Reinstatement of employee after dismissal – Principle
that reinstatement carrying no automatic retrospective connotation
affirmed – Court finding that in
casu
reinstatement is appropriate on the facts and circumstances of the
case – Consequently, Court confirming arbitrator’s award
of reinstatement at a future date but not award of backpay of
remuneration from date of dismissal to date of reinstatement –
Court awarding instead reasonable compensation for loss of
remuneration during period of dismissal.

Held,
that an award of backpay from the date of dismissal to the date of
reinstatement should not automatically follow an award of
reinstatement. Taking into account the facts and circumstances of the
particular case, a reasonable amount should only be awarded as
compensatory award for the period between date of dismissal and date
of reinstatement.

Held,
further, that, as a general rule, it is wrong and unfair for an
employer to mete out different punishments for the same or for
similar misconduct.

Held,
further, that in Labour Law, fairness lies at the root of its rules
and procedures.

CASE NO.: LCA
67/2009

IN THE LABOUR
COURT OF NAMIBIA

In the matter
between:

EDGARS
STORES (NAMIBIA) LIMITED Appellant

and

LAURIKA
OLIVIER First
Respondent

LABOUR
COMMISSIONER Second Respondent

CORAM: PARKER
J

Heard on: 2010
May 28

Delivered on: 2010
June 18

_________________________________________________________________________

JUDGMENT

_________________________________________________________________________

PARKER
J: [1] This
is an appeal in which Mr. Kavendjii represents the appellant (i.e.
the respondent in the arbitration) and Mr. Murorua the 1^st
respondent (i.e. the applicant in the arbitration). The 2^nd
respondent is the Labour Commissioner; and it would seem he has been
cited because he has an indirect interest in the outcome of the
appeal. No order is ought against him. This is an appeal from a
tribunal; that is, an arbitration tribunal in terms of the Labour
Act, 2007 (Act No. 11 of 2007).

[2] In
determining this appeal I hold that an arbitration tribunal
established in terms of the Labour Act, 2007, is a tribunal within
the meaning of Article 12 (1) (a) of the Namibian Constitution, and
so the constitutionally guaranteed right to fair trial under that
provision is applicable to any such tribunal. That being the case,
in my view, the principles developed by the Courts concerning the
deciding of appeals by an appellate court must perforce apply to the
present appeal. In this regard, it has been said that the principles
justifying interference by an appellate Court with the exercise of an
original jurisdiction are firmly entrenched. If the discretion has
been exercised on judicial grounds and for sound reasons, that is
without bias or caprice or the application of a wrong principle, the
appellate Court will be very slow to interfere and substitute its own
decision (Paweni and
Another v Acting Attorney-General
1985 (3) SA 720 at 724H-I; Pupkewitz
Holdings (Pty) Ltd v Petrus Mutanuka and Others
Case No. LCA 47/2007). It follows that in an appeal the onus is on
the appellant to satisfy the appellate court that the decision of the
court or tribunal below is wrong and that that decision ought to have
been the other way (Powell
v Stretham Manor Nursing Home
[1935] AC 243 (House of Lords) at 555).

[3] In
casu, in what
respect does the appellant say the decision of the arbitrator is
wrong, entitling the Court to interfere with the arbitrator’s
decision? In her award, the arbitrator concluded that the dismissal
of the 1^st
respondent by the appellant is ‘substantially unfair’ in
terms of the Labour Act 2007 because, according to the arbitrator,
the disciplinary committee of the appellant’s applied
‘inconsistent’ punishments which adversely affected the
1^st
respondent when the disciplinary committee sat on the 1^st
respondent’s disciplinary hearing. It is the contention of the
appellant that the disciplinary committee did not apply
‘inconsistent’ punishments. Mr. Kavendjii submitted that
the appellant was justified in considering the circumstances
surrounding the breach of a rule of the disciplinary code of the
appellant in that the 1^st
respondent attacked a fellow employee twice and she showed no remorse
and vowed that she would continue her conduct until they were both
dismissed. Thus, according to counsel, such conduct of the 1^st
respondent is serious enough to warrant her dismissal. Mr. Kavendjii
submitted further that the instant case was not comparable ‘with
the others involving horse play’ or suchlike behaviour where
the employees involved were not dismissed by the same employer, i.e.
the appellant.

[4] The
long and the short of Mr. Murorua’s submission contrariwise is
this: ‘the 1^st
respondent’s dismissal by the appellant was substantially
unfair and thus without a fair reason due to non-compliance with the
parity principle.’ Accordingly, it is Mr. Murorua’s
submission that the arbitrator’s decision is not wrong and so
this Court qua
appellate court should not interfere with the arbitrator’s
decision.

[5] On
the record, I find that the following are not disputed or are, in my
opinion, indisputable. The genesis of this matter lies in the 1^st
respondent and a co-employee (Mr. Willem Rooi) being charged as
follows: ‘Assault or Manhandling in that on 20/02/2009 you
allegedly got into a fight on the sales floor which resulted in
serious breach of the company regulations and made the relationship
between yourself and colleagues, customers and management
intolerable.’

[6] It
would seem the two employees pleaded guilty to the charge at the
aforementioned disciplinary hearing conducted by the appellant. The
1^st
respondent was dismissed by the disciplinary committee and as
respects Mr. Rooi, the committee recommended to Management to
‘seriously warn him against love affairs at the work place’.
It appears to me clear that the 1^st
respondent-Mr. Rooi episode is not an isolated incident, neither is
it alien to the appellant’s workplace. There have been several
suchlike episodes in the very recent past.

[7] In
sum, whether one characterizes the episodes as fracas, assault,
fighting, horse play or ‘childish reaction’, the
irrefragable fact that remains is that there is nothing in what
occurred between the 1^st
respondent and Mr. Rooi to write home about. One might even say that
that sort of behaviour appears to be part of the working life of the
appellant’s employees at the workplace; and, a
fortiori, the
appellant is fully aware of it. If that is the case, as I say it is,
why then should the appellant find the 1^st
respondent-Mr. Rooi ‘assault or manhandling’ or ‘fight’
anything to punish anyone for; or punish one participant in the
‘assault or manhandling’ or ‘fight’ more
severely than the other participant or, indeed, than other employees
who had in the recent past participated in suchlike conduct. It does
not make sense; it is unfair in law, in my opinion.

[8] In
this regard, I am not at all persuaded by the appellant’s
argument that the 1^st
respondent broke a rule, and the attendant penalty for such breach is
dismissal. That may be so; with respect, counsel’s argument
adds no weight. The critical question that still remains is why
should the 1^st
respondent alone, from among other participants in such conduct, as
aforesaid, suffer such fate; that is, dismissal, which is the
‘capital’ punishment in the scheme of penalties in labour
law. Mr. Kavendjii’s response is that the 1^st
respondent’s conduct and her attitude thereafter are not
comparable to those of the others. I do not, with respect, agree,
for the observations I have made above.

[9] It
follows that the South African case of SA
Commercial Catering & Allied Workers Union & Others v Irvin &
Johnson Ltd Labour
Appeal Court (CA 10/98) (Unreported), which Mr. Kavendjii referred to
me, is not of any real assistance on the point under consideration.
As I have demonstrated previously, I am not convinced that the 1^st
respondent alone, and not the other participants in similar conduct,
deserved to be dismissed for behaving in a manner which, as I have
found above, appears to be commonplace at the workplace of the
appellant’s commercial establishment, and it seems nobody has
been dismissed for such conduct, at least regarding the cases
referred to on the record.

[10] One
must not lose sight of the fact that like a tall concrete fence built
around a Roman Catholic convent, Labour Law protects employers and
employees who wish to be protected in labour and employment
relations. From the record, the sort of conduct that the 1^st
respondent and Mr. Rooi participated in appears to be a way of life
among employees, and is tolerated by the appellant; tolerated in the
sense that other participants in such conduct in the recent past have
had only a slap on the wrist, compared to the punishment dished out
to the 1^st
respondent, as aforesaid.

[11] In
Labour Law, fairness is at the root of its rules and practice. It
cannot be seriously argued on any pan of scale that the sort of
conduct of some employees of the appellant that abounds the present
record and which the appellant’s disciplinary hearings dealt
with on different occasions in the recent past is so different in
nature from the 1^st
respondent’s conduct that the participants in such conduct in
the past should be treated differently from the 1^st
respondent. In my opinion, no amount of theorizing about the parity
principle and the inconsistency principle can put a different colour
on this irrefragably unfair reality.

[12] In
a matter like the present, one must always keep in one’s mental
spectacle the facts and circumstances of the particular case. A
closer look at the facts and circumstances of the instant case and
the aforegoing reasoning and conclusions propel me to the inexorable
and reasonable conclusion that the appellant has not shown that the
arbitrator did exercise her discretion for unsound reason or that she
exercised her discretion with bias and caprice or that she applied a
wrong principle when she held that the dismissal of the 1^st
respondent is substantively unfair on the basis that an inconsistent
punitive measure was applied unfairly in the case of the 1^st
respondent.

[13] Moreover,
in the instant matter, there is not a grain of evidence on the record
tending to show that the employer-and-employee relationship between
the appellant and the 1^st
respondent has broken down irretrievably due to the 1^st
respondent’s conduct which landed her before the disciplinary
hearing conducted by the appellant, as aforementioned. As Mr Murorua
reminded the Court, the utterance which appears to have swayed the
appellant’s disciplinary committee, namely, ‘I will not
stop until someone is dismissed’, or words to that effect, were
thrown in by the chairperson of the disciplinary committee. There is
no evidence on the record proving that those words were uttered by
the 1^st
respondent and to whom they were uttered or that they uttered at all.
I find that the appellant has not discharged the onus cast upon it
to establish that the trust relationship between the appellant and
the 1^st
respondent has been breached (Edcon
Ltd v Pillemer NO & Others
[2010] 1 BLLR 1 SCA). What Mr. Kavendjii did was merely to refer to
this Court Model Pick
‘n Pay Family Supermarket v Mwaala
NLLP 2004 (4) 1999 NLC when there is no evidence on the record whose
consideration would have called in aid the authority in Mwaala
supra. That being the case, it is my view that the authority in
Mwaala
cannot assist this Court.

[14] From
the aforegoing reasoning and conclusions, I hold that the appellant
has not established that the arbitrator did exercise her discretion
for unsound reason or that she exercised her discretion with bias and
caprice or that she applied a wrong principle when she held that the
dismissal of the 1^st
respondent is substantively unfair. It follows that, in my opinion,
the arbitrator cannot be faulted in that regard. This conclusion
disposes of the appeal against the decision of the arbitrator that
the dismissal of the 1^st
respondent by the appellant is substantively unfair.

[15] The
matter does not rest here. Is this Court entitled to interfere with
the arbitrator’s award of (a) reinstatement, (b) order of
transfer of the 1^st
respondent ‘to another Department’, and (c) costs?

[16] I
have carefully considered the record, including particularly the
arbitrator’s reason for deciding that dismissal is not an
appropriate punishment in the circumstances of the case. Having done
so, I come to the conclusion that the arbitrator is not wrong in so
holding. I think her award of reinstatement cannot also be faulted
in principle. The facts and circumstances of the instant case are
such that they make the cases where reinstatement was refused by this
Court, e.g. Bank
Windhoek v Magnaem Mumbala
Case No. LCA 48/2008 (Unreported) and Pupkewitz
Holdings (Pty) Ltd v Petrus Mutanuka and Others
supra, distinguishable. Be that as it may, it would now be gravely
unfair to order the appellant to put the 1^st
respondent in ‘the position she held prior to her dismissal or
alternatively … a similar position,’ considering the
fact that about two years have passed since the 1^st
respondent’s dismissal following the disciplinary hearing, and
it is not far-fetched to say that looking at the business of the
appellant, that position could not have remained vacant for that
period. Thus, any order of reinstatement must be such that it does
not prejudice any other employee who might have been put in the
position that the 1^st
respondent held before her dismissal (Pupkewitz
Holdings (Pty) Ltd v Petrus Mutanuka and Others
supra). There is no evidence on the record that such is the case,
but it would be reasonable to so suppose, so as not shoot ourselves
in the foot.

[17] I
must add that in a case like the present, a court or arbitrator, when
determining an amount of compensation, ought to take into account the
extent to which the employee’s own conduct contributed to the
dismissal. In the instant case, the 1^st
respondent’s own misconduct contributed markedly to her
dismissal. Additionally, since I have already held that
reinstatement does not carry automatic connotation, it is wrong and
unfair to award backpay from date of dismissal to date of
reinstatement as an automatic consequence of an award of
reinstatement (Chegutu
Municipality v Manyora
1997 (1) SA 662 (ZSC)). Taking these two factors into account, I
conclude that the arbitrator’s award thereanent compensation
cannot stand undisturbed by this Court.

[18] As to costs;
in my opinion, no section 118 (of the Labour Act 2007) ground exists
for the grant of an order of costs.

[19] It
follows that the appeal against the arbitrator’s decision that
the 1^st
respondent’s dismissal is unfair fails. That decision is
confirmed. Nevertheless, in view of the aforegoing reasoning and
conclusions concerning award of backpay and reinstatement, it is
reasonable for this Court to interfere with the order made by the
arbitrator thereanent, as I do. In the result, the order of the
arbitrator is altered to read:

1. 
   The
   appellant must reinstate the 1^st
   respondent in a position comparable to the position she held before
   her dismissal. The reinstatement takes effect from 1 August 2010.

   
   

2. 
   The
   appellant must pay to the 1^st
   respondent on or before 31 August 2010 an amount equal to six
   months’ remuneration at the time of her dismissal.

   
   

3. 
   The
   appellant must issue to the 1^st
   respondent within one week of resuming work upon her reinstatement a
   last written warning which should remain effective for not less than
   24 months.

   
   

4. 
   There shall be no
   order as to costs.

   
   

_____________________

PARKER J

COUNSEL
ON BEHALF OF THE APPELLANT: Mr
Kavendjii

Instructed
by: Hengari,
Kangueehi & Kavendjii Inc.

COUNSEL
ON BEHALF OF THE RESPONDENT: Mr
Murorua

Instructed
by: Murorua &
Associates