Methealth Namibia Administrators (Pty) Ltd v Matuzee and Others (LCA 22/2014) [2015] NALCMD 6 (18 March 2015);

REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: LC 129/2012

DATE: 18 MARCH 2015

In the matter between:

RIAAN FRANS SAMARIA...............................................................................................APPLICANT

And

ONO ANGULA N.O.................................................................................................1^ST RESPONDENT

LABOUR COMMISSIONER N.O........................................................................2^ND RESPONDENT

RÖSSING URANIUM LIMITED.........................................................................3^RD 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.

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. 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;

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 was made outside the six months’ time limit set by the Labour Act, 2007[1]. 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

…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

(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 obtained[2]. Parker^[3] 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

[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 Executors^[4]. 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 said^[5]:

‘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 Ehrlich[6], 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 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 Another^[7] 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 Another^[8] 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 Another^[9] 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 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 Parker^[10] 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 Others[11] 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] 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 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 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 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;

(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 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

APPEARANCES

APPLICANT: M Ntinda

Of Sisa Namandje & Co Inc, Windhoek

FIRST RESPONDENT: J Boltman

Of GF Köpplinger Legal Practitioners,

Windhoek