CASE
NO. LCA 44/2008
REPORTABLE
IN
THE LABOUR COURT OF NAMIBIA
In
the matter between:
WINDHOEK
OBSERVER PUBLISHERS (PTY) LTD ….............................APPELLANT
and
ALVA
MUDROVIC
…........................................................................RESPONDENT
CORAM:
HOFF, J
Heard
on: 06 March 2009
Delivered
on: 14 October 2011
JUDGMENT
HOFF,
J: [1]
The respondent was employed by the appellant. The respondent was
found guilty on a charge of refusal and/or failure to work stipulated
working hours on various occasions during a disciplinary hearing
chaired by a Mr Roberts on 22 May 2005. The respondent was issued
with a final written warning. Mrs E Smith, the sole owner of the
appellant, on behalf of the appellant on 30 May 2006 issued a letter
of termination of service to the respondent.
On
31 May 2006 the respondent appealed against her dismissal on the
grounds that such dismissal was procedurally unfair and that the
sanction of dismissal was inappropriate or harsh punishment. The
appellant on 14 June 2006 informed the respondent that it did not
have an internal appeal procedure and invited the respondent to
approach the district labour court.
[2]
The respondent subsequently filed a complaint on the basis that she
has unfairly been dismissed claiming inter alia
re-instatement, loss of outstanding remuneration due to the unfair
dismissal, all outstanding leave days, and a cost order against the
appellant in terms of section 20 of Act 6 of 1992 for the frivolous
and vexatious conduct by the appellant.
[3]
The chairperson of the district labour court found that the dismissal
of the respondent was unfair and not in compliance with the
provisions of section 45 of the Labour Act 6 of 1992 and made the
following orders:
the dismissal of
the complainant on 31 May 2006 is set aside and replaced with a
final written warning;
the respondent is
ordered to pay the complainant an amount of N$110 143.66. N$243
000.00 (18 months salary minus N$132 856.34 which she earned at New
Era) as compensation for her loss of income and damages as a result
of her unfair dismissal;
the request for
outstanding leave and severance (pay) cannot be entertained because
it was not included in the particulars of the complaint;
the respondent is
ordered to pay the cost of suit in terms of section 20 of the Labour
Act, because it promised the complainant the right to an appeal
hearing and subsequently denied it without a proper explanation.
There is no reason why the respondent could not have appointed an
independent appeal chairperson. Its actions in the circumstances are
vexatious and aimed at frustrating the complainant;
the above payment
should be made to the representative of the complainant on or before
29 February 2008. Interest at a rate of 20% per annum shall be added
to any outstanding amount not paid before 29 February 2008.
[4]
The appeal lies against the finding and order of the district labour
court.
[5]
The grounds of appeal filed were set out as follows:
“1. That the
learned Chairperson erred in law and/or on the facts in finding that
the respondent was dismissed unfairly.
2. That the
learned Chairperson erred in the law and/or on the facts in failing
to consider the litany of previous similar offences committed by the
respondent.
3. That the
learned Chairperson erred in law and/or on the facts in failing to
consider that it is common cause between the parties that the
respondent had been found guilty on similar charges in October 2005.
4. That the
learned Chairperson erred in law and/or on the facts in failing to
properly consider that corrective and/or educational measures taken
in the past had no effect on the respondent.
5. That the
learned Chairperson erred in law and/or on the facts in failing to
considered that corrective action repeatedly taken in the past by way
of warnings, both verbal and written, had no effect on the
respondent.
6. That the
learned Chairperson erred in law and/or on the facts in finding that
a final written warning was the appropriate sanction under the
circumstances.
7. That the
learned Chairperson erred in law and/or on the facts in finding that
the outside Chairperson (who was not the employer) had the mandate to
finally decide about a warning/dismissal.
8. That the
learned Chairperson erred in law and/or on the facts in failing to
consider that the persistent time-keeping offences committed by the
respondent were considered by the appellant to be serious.
9. That the
learned Chairperson erred in law and/or on the facts in failing to
find that, considering the respondent’s history of time-keeping
offences, her dismissal was justified and fair.
10. That the
learned Chairperson erred in law and/or on the facts in finding that
the respondent had proved losses amounting to N$110 143.66.
11. That the
learned Chairperson erred in law and/or on the facts in failing to
consider that the respondent was only unemployed for a period of
three months.
12. That the
learned Chairperson erred in law and/or on the facts in any event, in
failing to find that the circumstances of the case warrant no more
than a nil award.
13. That the
learned Chairperson erred in law and/or on the facts in any event, in
failing to consider that the respondent had additional income during
the period that she was unemployed.
14. That the
learned Chairperson erred in law and/or on the facts in failing to
consider that the respondent, prior to the hearing, contemplated
terminating the employment relationship, therefore the learned
Chairperson erred in calculating her losses on the entire period from
date of termination of employment to date of judgment.
15. That the
learned Chairperson erred in law and/or on the facts in finding the
appellant liable for costs in terms of section 20 of the Labour Act,
Act 6 of 1992.”
[6]
It was submitted by Ms van der Westhuizen who appeared on behalf of
the respondent in this appeal that the issues to be decided are the
following:
did
the employer (appellant) have the authority to dismiss the employee
(respondent) in the light of an independent chairperson already
having imposed a sanction ?
if
the answer to (a) is affirmative, was dismissal an appropriate
sanction in the circumstances ?
if
the answer to (b) is negative, was an award for damages in the
amount of N$110 432.66 and costs an appropriate award ?
[7]
It is common cause that the respondent had previously on 31 October
2005 during a disciplinary hearing presided over by a Mr Kauffmann
been convicted of inter alia refusal to work stipulated work
hours. Mr Kauffmann during the proceedings in the district labour
court testified on that previous occasion he recommended as a
sanction a written warning and that this recommended sanction was
conveyed orally to the respondent personally.
It
is further common cause that there is no record or documentary proof
of this recommended sanction. It is common cause that no record of a
previous written warning was introduced as aggravating circumstances
before Mr Roberts pronounced the sanction of a final written warning
in the second disciplinary hearing.
The
respondent disputes that she was notified of the written warning she
allegedly received during the first disciplinary hearing. Mrs Smith
confirmed that she never issued such written warning. The respondent
did not dispute that she was present when Mr Kauffmann delivered his
verdict of guilty.
Respondent
on 5 December 2005 filed an appeal against the verdict of guilty
pronounced during the first disciplinary hearing which appeal was
subsequently withdrawn by the respondent.
[8]
On 4 November 2005 the appellant sent out a memorandum to al staff
members which inter alia contains the following warning:
“Working
hours will have to be strictly adhered to, with such working hours as
being stipulated by the direct supervisor.”
[9]
All the staff members including the respondent acknowledge receipt of
this memorandum.
[10]
The appellant recorded the late arrival times of the respondent for
the months of November 2005, December 2005 and January 2006 until May
2006 after it appeared that respondent refused to abide by the
stipulated working hours. During this period respondent was late on
sixty six days. During this period respondent had also been warned
for being found sleeping at work.
[11]
There is a dispute whether the chairperson Mr Roberts had the mandate
only to make a recommendation of the appropriate sanction to the
appellant or whether he indeed could himself impose an appropriate
sanction.
[12]
Mr Roberts testified that he had assumed that he had to take the
final decision regarding an appropriate sanction since he had never
previously where he had provided at disciplinary hearings been
required to only make a recommendation. He further testified that he
would not find it strange if a chairperson at a disciplinary hearing
would be required to make a recommendation only because he was aware
of other instances where chairpersons were asked only to make a
recommendation regarding an appropriate sanction.
Mr
Roberts testified that he had not been asked to make a recommendation
only.
[13]
Mrs Smith the sole shareholder of the appellant testified that she
had the final decision as to the fate of an employee. The chairperson
of the first disciplinary hearing Mr Kauffmann corroborated her
testimony in this regard.
[14]
Mr Dicks who appeared on behalf of the appellant referred to Jamafo
o.b.o. Nero and Pick ‘n Pay (2007) 28 ILJ 688 (CCMA)
where it was held that an employer may dismiss an employee even
though the chairperson of a hearing had recommended otherwise. On 692
A – C with reference to the matter of Tshishonga v Minister
of Justice & Constitutional Development and Another (2006) 27 ILJ
1541 (LC); [2006] BLLR 601 (LR) the following was said by Van
Staden C:
“The above,
in my view, settles the principle that an employer may dismiss an
employee even though the chairperson of a hearing had recommended
otherwise. It must also be borne in mind that unless an employer
appoints the chairperson of a hearing as its agent, it is not bound
by the decisions of the chairperson. At best the chairperson can make
recommendations. The fact that senior management does not agree with
such a finding does not necessarily render a subsequent dismissal
unfair. It is ultimately the employer and the chairperson that
decides whether to dismiss or not.
The only other
question is whether applicant’s dismissal was fair.”
[15]
It was therefore submitted that even if Mr Roberts was under the
impression that he could take the final decision and not only make a
recommendation, this did not derogate from Mrs Smith’s
prerogative to take such decision as the only director and
shareholder of the appellant.
[16]
Mrs van der Westhuizen submitted that where there is no procedure in
place for the review of a chairperson’s decision in a
disciplinary hearing, the employer is not allowed to do so.
If
however such procedure does exist, the employee should at least be
granted an opportunity to make representations to such reviewing
official before a final decision is made.
This
Court was in this regard referred to the matter of Mubita v
Namibian Broadcasting Corporation NLLP 2004 (4) 114 NLP as
authority for such a contention.
From
a reading of this judgment (at 116) it appears to me that the remarks
by the Court were obiter.
[17]
Another matter which seems to support the contention that where there
is no appeal or review procedure in place an employer may not
overturn the decision of the chairperson of the disciplinary hearing
is TransNamib Holdings Limited v Carstens 2004 (4) NLLP 209 NLC at
215 where Hannah J said the following:
“Not only
was the respondent twice found not guilty on the charges brought
against him, not only was he not afforded the opportunity to make
representations to the Reviewing Officer but no provisions existed in
applicant’s disciplinary rules for a review of a finding
favourable to an employee. Even the appeal lodged by the respondent
received no attention. Insofar as the applicant now contends that
this “pending” appeal had the effect of deferring the
jurisdiction of the District Labour Court because the respondent had
not exhausted all his internal remedies I hold that due to the
applicant’s inaction the appeal must be deemed to have lapsed.”
[18]
The chairperson in the district labour court found an authority of
the Mubita and TransNamib matters (supra) that
Mrs Smith was not competent to impose a sanction after Mr Roberts an
independent person had already imposed a sanction.
[19]
The chairperson in the district labour court on p. 376 of the record,
paragraph 17 expressed himself as follows:
“Despite
these procedural irregularities, which made the process unfair and
untenable the court has nevertheless considered whether there was a
valid and fair reason for the dismissal of the complainant. This
Court found that on the evidence presented by both parties that the
sanction of a final written warning is appropriate in the
circumstances, taking into account that the respondent did not prove
the outcome of the previous disciplinary hearing on a balance of
probabilities.”
[20]
The chairperson in the district labour court stated that the
respondent had conceded that she had correctly been found guilty on
the first charge (refusal and/or failure to work stipulated working
hours on various occasions), by the chairperson, Mr Roberts during
the second disciplinary hearing.
[21]
If the chairperson in the district labour court meant with “did
not prove the outcome of the previous disciplinary hearing”
referred to the sanction allegedly imposed then he is correct.
However it is common cause that the respondent had been found
guilty in the first disciplinary hearing of “refusal and/or
failure to work stipulated working hours”.
[22]
In the light of the fact there was no appeal procedure in place at
the applicant, I am of the view that the appellant acted arbitrarily
and unfairly when dismissing the respondent without firstly informing
respondent of her intention to review the sanction imposed by Mr
Roberts, and secondly, not affording the respondent an opportunity to
make presentations before coming to a final decision.
[23]
Even in Jamafo (supra) referred to as authority that an
employer is not bound by the sanction imposed by the chairperson in a
disciplinary hearing, fairness is a crucial consideration. The facts
in Jamafo (supra) are however distinguishable from the facts
in the matter under consideration.
In
Jamafo during a disciplinary enquiry and employee was inter
alia issued with a final written warning. When the matter later
came to the attention of senior management a second disciplinary
hearing was convened and the employee was dismissed.
In
this appeal it is common cause that no such second disciplinary
hearing was held but that the appellant unilaterally dismissed the
respondent.
It
is in this context that it was held in Jamafo that an employer
may dismiss an employee even though the chairperson of a hearing had
recommended otherwise.
[24]
Also in Nampak corrugated Wadeville v Khoza (1999) 20 ILJ 578
the South African Labour Appeal Court held at 584 A that a court
should not lightly interfere with the sanction imposed by the
employer unless the employer acted unfairly in imposing the sanction.
[25]
What are the consequences presently where the appellant had acted
arbitrarily and unfairly in dismissing the respondent ?
[26]
Mr Dicks submitted that the district labour court sat as a court of
first instance and that the proceedings before it constituted a
re-hearing of the informal proceedings at the disciplinary hearing.
He
further submitted that the chairperson of the district labour court
failed to consider the provisions of sections 46 (4)(a)(iii) and 46
(4)(b)(ii) of the Labour Act, Act 6 of 1992 which reads as follows”
“46(4) In
considering –
whether an
employee has been dismissed unfairly or whether any disciplinary
action has been taken unfairly against such an employee, the
district labour court shall have regard –
(iii) to the
conduct and capability of the employee concerned during the period of
his or her employment.”
and
the nature of an
order to be made in the event of the district labour court finding
that the employee concerned has been dismissed unfairly or that
disciplinary action has been taken unfairly against such an
employee, the district labour court shall have regard –
(ii) to the
circumstances in which an employee concerned has been dismissed or
such disciplinary action has been taken against such employee,
including the extent to which such employee has contributed to or
caused his or her dismissal or disciplinary action.”
[27]
In Kamanya & Others v Kuiseb Fish Products Ltd (1996) 17 ILJ
923 the Labur Court of Namibia as per O’Linn J at 925 J –
926 B stated at following regarding the nature of a subsequent
disciplinary hearing or hearing in the district labour court:
“After all,
our Labour Act requires a fair hearing and a fair reason for
dismissal, whether or not this was done in a single hearing or in the
course of more than one hearing and irrespective of whether one of
those hearings is labeled an “appeal” hearing. Surely
much depends on the nature of the so-called appeal - …
Furthermore, the appeal in terms of an employer’s code can 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. Surely in such a case, the appeal itself
corrects the procedure and/or result of the mutual enquiry, considers
the issues de novo and comes to its own decision either on the
existing evidence, or on new evidence adduced at the rehearing.”
and
continues at 926 E – H:
“It should
further be kept in mind that the hearing of the complaint by the
District Labour Court is not only whether the employer
held a fair hearing but whether in
fact
there was a fair reason for the dismissal. The District Labour Court
hears all the evidence and arguments placed before it and decides the
latter issue irrespective of what the employer’s domestic
tribunal found.
Again it would be
a travesty of justice if the District Labour Court is compelled to
order re-employment or reinstatement or compensation to be paid by
the employer, because the employer did not follow a fair procedure,
but the District Labour Court is convinced that the employer has
proved before it that there was a fair reason for dismissal. In such
an instance it seems to me the District Labour Court would be
justified, in accordance with s. 45 (1) read with s. 45 (3) to find
that the employee has not been dismissed unfairly or that the
disciplinary action has not been taken unfairly and that the
complainant’s dismissal must therefore be confirmed.”
[28]
Referring inter alia to sections 46 (4)(a)(iii), referred to
(supra), the following appears at 927 G – I:
“Having
regard to the procedure
used in the particular instance and in comparable circumstances, does
not mean that the District Labour Court would not be entitled to
reject the complaint if the conduct
of the employee amounted to gross misconduct.
The result in my
view is that no order for reinstatement, re-employment or
compensation should be made by the District Labour Court against the
employer, where the employer has succeeded in proving before it a
fair reason for dismissal, whether or not such employer has proved
that a fair procedure was applied before the domestic tribunal. In
such a case it would be open to the District Labour Court to find
that the employee has not been ‘dismissed unfairly’.”
and
at 928 the following appears:
“In the
alternative, if I am wrong in the abovestated view, then in a case
where the employer has proved a fair reason for dismissal but has
failed to prove a fair procedure, the District Labour Court would be
entitled in accordance with s. 46(1)(c), not to grant any of the
remedies provided for in s. 46(1)(a) and (b) but to confirm the
dismissal or to decline to make any order.”
[29]
This principle (supra) where a court is asked to decide
whether or not there was a fair procedure and a valid and fair reason
for dismissal (in compliance with section 45(1)(a) of the Labour Act,
6 of 1992) if satisfied that the employer proved the existence of a
valid and fair reason for a dismissal, refuse to order reinstatement
or compensation, even if it is established that no fair procedure
preceded the dismissal, was followed in the matters of Kahoro and
Another v Namibian Breweries Ltd 2008 (1) NR 382 (SC) at 390 –
391 and Peace Trust v Beukes 2010 (1) NR 134 LC) at p.
152 – 153.
[30]
The proceedings in the district labour court was a rehearing of the
charges preferred against the respondent in the second disciplinary
hearing.
[31]
Respondent does not dispute that on various occasions she arrived
late at work. It appears from Exhibit E that the late arrivals varied
between 5 minutes to 2 hours. It was submitted by Mr Dicks that
during a seven month period (November 2006 until May 2007) the
respondent arrived late fifty percent of the time.
[32]
It is not disputed that the respondent was previously disciplined for
arriving late, that she received written warnings, and that a
memorandum was sent out (signed by respondent) which clearly
stipulated that working hours will have be strictly adhered to. These
corrective measures did not alter the respondent’s pattern of
late coming.
Late
coming is a form of absenteeism.
See
Mthetwa and Capital Caterers (2007) 28 ILJ 1859 (CCMA).
[33]
John Grogan; Workplace Law 9th edition at p 184 stated the
following in respect of time-related offences:
“In
assessing the fairness of a dismissal for absenteeism or
unpunctuality the following factors are normally considered relevant:
the reason for the employee’s absence, the employer’s
work record, and the employer’s treatment of the offence in the
past.
The onus rests on
the employees to tender a reasonable explanation for their absence.
To justify dismissal the courts require the absences to be of
unreasonable duration or frequent enough to disrupt work. Absenteeism
is viewed in a more serious light if the employee concerned was
expressly instructed to report for duty at the time, and cannot offer
an excuse, such as illness, to justify the failure to report for
duty.”
[34]
I could find in the record no reason offered by the respondent for
her repeated absenteeism. Furthermore in spite of the fact that
respondent was instructed to adhere strictly to working hours she
continued to persist with her conduct of arriving late at work.
[35]
In De Beers Consolidated Mines Ltd vs Commissioner for
Conciliation, Mediatron & Arbitration & Others (2000) 21 ILJ
105 at 1055 the South African Labour Court of Appeal as per Zondo
AJP referred to with approval to the matter of Toyota SA Motors
(Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 (LAC) where the
following appeared in para. 15:
“Although a
long period of service of any employee will usually be a mitigating
factor where such employee is guilty of misconduct which are of such
a serious nature that no length of service can save an employee who
is guilty of them from dismissal.”
[36]
It was further held in De Beers (supra) as per Conradie JA
that it would be difficult for an employer to re-employ an employee
who has shown no remorse. In addition the likelihood of an employee
to repeat his misdemeanor is obviously also a factor to be taken into
account when considering an appropriate sanction.
[37]
A factor to be considered whether an employee has been dismissed
unfairly includes the extent to which such an employee has
contributed to or caused his or her dismissal (Section 46 (4)(b)(ii)
of Act 6 of 1992).
[38]
I am of the view that the respondent to a large extent contributed to
her own downfall through her constant absenteeism. The presiding
officer in the district labour court in his judgment stated that he
has considered the conduct of the respondent with reference to the
provisions of section 46 (4)(b)(iii) of Act 6 of 1992 in coming to an
appropriate compensation award.
[39]
It appears to me that he did not consider the provisions of section
46 (4)(b)(ii) in considering whether or not the respondent had
contributed to or caused her dismissal.
[40]
The chairperson in the district labour court did also not (he made no
reference to it) consider the case of Kamanya (supra) and the
principle enunciated therein as discussed (supra). Had he done
so he might have come to a different conclusion. It appears to me the
magistrate reasoned that because Mrs Smith followed no fair procedure
in dismissing the respondent, for that reason alone the respondent
had been dismissed unfairly.
[41]
An important issue not considered by the chairperson in the district
labour court is the undisputed fact that the respondent had a
previous conviction for refusal and/or failure to work
stipulated working hours.
Even
if it is accepted the sanction of a final written warning had not
been conveyed to the respondent at that stage the fact that
respondent had been found guilty is an aggravating circumstance which
could not have been ignored by the chairperson in the district labour
court.
[42]
The respondent in spite of this previous conviction should have been
on her guard not to repeat the same transgression. Instead she chose
to ignore this previous conviction. It is highly likely that the
respondent would have continued with her unacceptable behaviour in
spite of the final written warning imposed at the second disciplinary
hearing.
[43]
I am of the view (on the authorities referred to (supra) i.e.
Kamanya, Peace Trust and Kahoro) that there was a fair
and valid reason for the dismissal of the respondent in spite of the
unfair procedure.
[44]
The repeated absenteeism in the absence of any explanation or any
plausible explanation in addition to the absence of remorse amounts
to gross misconduct on the part of the respondent which justifies the
dismissal of the respondent.
[45]
I am not persuaded by the submission made on behalf of the respondent
that appellant failed to show it suffered any detriment in respect of
respondent arriving late. In my view the prejudice is obvious. The
respondent was at the time of her dismissal employed as a “sub-editor
proof reading” and it is not difficult to imagine the delay in
meeting deadlines set for the publication of newspapers as a result
of her absenteeism.
[46]
In view of the reasons (supra) I am of the view that the
chairperson in the district labour court misdirected himself on the
facts as well as the law in confirming the finding of the chairperson
of the second disciplinary hearing and awarding compensation in
favour of the respondent.
[47]
The chairperson also awarded costs against the appellant on the basis
that appellant acted vexatiously by not appointing an independent
appeal chairperson and thereby frustrating the respondent.
[48]
I doubt that such a conclusion could be drawn under the
circumstances. The respondent was informed that there existed no
appeal procedure in the scheme of things at the appellant.
In
terms of section 20 of Act 6 of 1992 no cost order may be awarded
except in those instances where a litigant in initiating or opposing
proceedings acted frivolously or vexatiously.
[49]
The respondent instituted proceedings in the district labour court
and the appellant was entirely justified in opposing such
proceedings. There is no indication that the appellant in opposing
these proceedings acted vexatiously.
[50]
The question posed by Ms van der Westhuizen at paragraph [6] (supra)
should be answered in the negative, because for the reasons provided
this was not the only issue to be considered.
[51]
I am therefore of the view that under the circumstances of this case
that the respondent had not been dismissed unfairly and that the
appeal should succeed.
[53]
In the result the following orders are made:
The
order of the chairperson of the district labour court replacing the
dismissal of the respondent with a final written warning is hereby
set aside.
The
dismissal of the respondent is confirmed.
The
compensation order of N$110 143.66 in favour of the respondent is
set aside.
The
cost order in terms of the provisions of section 20 of Act 6 of 1992
is set aside.
__________
HOFF,
J
ON
BEHALF OF THE APPELLANT: ADV. DICKS
Instructed
by: KOEP & PARTNERS
ON
BEHALF OF THE RESPONDENT: ADV. VAN DER WESTHUIZEN
Instructed
by: GF KÖPPLINGER LEGAL PRACTITIONERS
Windhoek Observer Publishers (Pty) Ltd v Mudrovic (LCA 44/2008) [2011] NALC 26 (14 October 2011);