IN THE LABOUR COURT OF
NAMIBIA
MAIN DIVISION,
WINDHOEK
JUDGMENT
CASE NO: LC 72/2013
In the matter between:
MORNé VAN
NIEKERK
...............................................................................APPLICANT
versus
MB TRUCK SPARES
..............................................................................RESPONDENT
Neutral citation: van
Niekerk v MB Truck Spares (LC 72/2013) [2013] NALCMD 20 (20 June
2013)
CORAM: UNENGU
AJ
Heard on: 27 May 2013
Delivered on: 20 June
2013
Flynote: Labour Court
Rules and Practice – Application to stay operation of
Arbitrators award – Notice of appeal defective – No
appeal noted.
Summary: Urgent
application for stay of operation of the Arbitrator’s award
pending the outcome of the appeal. Applicant not completing form LC
41 as prescribed by Rules relating to the Conduct of Conciliation and
Arbitration – No appeal before Court. First point in
limine by respondent upheld and application dismissed.
RULING
UNENGU AJ
[1] The applicant, on an
urgent basis had applied for relief in the following terms:
1. “That the
execution of the award so given by the Arbitrator on 22 April 2013 be
stayed pending the outcome of the appeal so noted by the applicant on
or about 20 May 2013.
2. Such further and/or
alternative relief as the Honourable Court deem appropriate.”
Further notice was given that the affidavit of Kurt Otto Schimmel
along with the annexures thereto will be used in support of the
application.
[2] The respondent worked
for the applicant as a Buying and Stock Controller when a dispute
arose between fellow employees of the applicant and the respondent.
As a result of this dispute, the respondent left the premises of the
applicant but returned back to the premises the following day with
his baby in his arms. What transpired thereafter was the subject
matter before the Arbitrator. The respondent claimed that he was
unfairly dismissed and that the dismissal was neither substantive nor
procedurally fair.
[3] The applicant, on the
other hand opposed the respondent’s claim and alleged that the
respondent was not dismissed from his work but had resigned.
Therefore, the issue for determination by the Labour Commissioner was
whether the respondent was dismissed or had resigned from his work.
[4] First,
the dispute was referred for Conciliation but failed. Arbitration
proceedings then ensued, which proceedings culminated in the
arbitrator finding in favour of the respondent and ordered an award
of compensation in terms of section 86(15)(e) of the Labour Act.
That award so granted in his favour, the respondent wants now to
enforce and as a result thereof, the applicant has approached this
Court, on an urgent basis to stay the execution of such award pending
the outcome of the appeal.
[5]
Meanwhile, the respondent is raising points in
limine against
the applicant’s application. The first point raised is that the
applicant failed to note an appeal against the arbitration award,
prior to the filing and noting of this application, as is required by
the Labour Act and/or the Rules relating to the Conduct of
Conciliation and Arbitration before the Labour Commissioner (Con/Arb
Rules).
[6] The second point is
that the applicant purports to appeal against factual findings of the
2nd respondent (sic). (There is no 2nd
respondent in this application).
[7] The third and last
point is that the applicant’s notice of motion does not comply
with the requirements of the Rules of this Court in that his notice
of motion is not on Form 2, and that the application does not bear
the necessary revenue stamps as required by the Rules of the Court.
[8] The law regulating
appeals of arbitration awards in terms of the Labour Act, is section
89 of the Act and provides as follows:
“(i) 89(1) A party
to a dispute may appeal to the Labour Court against an arbitrator’s
award made in terms of section 86 –
(a) on any question of
law alone; or
(b) in the case of an
award in a dispute initially referred to the Labour Commissioner in
terms of section 7(1)(a), on a question of fact, law, or mixed fact
and law.”
[9] Subsection (2) on the
other hand provides that a party to a dispute who wishes to appeal
against an arbitrator’s award in terms of subsection (1) must
note an appeal in accordance with the Rules of the High Court, within
30 days after the award being served on that party. Subsections (3)
and (4) deal with condonation of the late noting of appeals on good
cause shown and applications for orders reviewing and setting aside
of awards in situations where a party to a dispute has alleged a
defect in any arbitration proceedings respectively.
[10] The Rules of the
High Court (Labour Court Rules), in Rule 17 provide that:
(1) This rule applies to
an appeal noted against –
(a) …
(b) …
(c) an arbitration
tribunal award, in terms of section 89 of the Act.
[11] As this appeal is
against an arbitration award noted in terms of section 89 of the Act,
it is apposite to refer also to sub rule (3) of Rule 17 which states
as follows:
“(3) An appeal
contemplated in sub rule (1)(c) must be noted in terms of the Rules
relating to the conduct of Conciliation and Arbitration before the
Labour Commissioner published in Government Notice No. 262 of 31
October 2008 (hereafter “the conciliation and arbitration
rules”), and the appellant must
at the time of the noting of the appeal
–
complete the relevant
parts on Form 11;
deliver the completed
Form 11, together with the notice of appeal in terms of these rules,
to the Registrar, the Commissioner and the other parties to the
appeal.” (emphasis added)
[12] I must mention at
this juncture that it has been agreed upon by the parties through
their legal representatives Messrs Mouton and Boltman for the
applicant and respondent respectively, to deal with the points in
limine first and if upheld, that will dispose of the
application, but if not upheld, the hearing on the urgency and merits
of the application would then follow.
[13] The
importance of the rules have been stated by the High Court as
follows:
“The Rules of the
Court are an important element in the machinery of justice. Failure
to observe such rules can lead not only to the inconvenience of
immediate litigants of the Courts but also to the inconvenience of
other litigants whose cases are delayed thereby. It is essential for
proper application of the law that the Rules of the Court which have
been designed for that purpose can be complied with. Practice and
procedure in the Courts can be completely dislocated by
non-compliance”. I cannot do otherwise but to agree with what
has been stated in the Swanepoel
matter.
Litigants must comply with the rules to avoid inconveniences and
unnecessary delays of cases.
[14] I have indicated
above the law applicable to the noting of an appeal against
arbitrator’s award as well as the procedure to be followed, the
forms to be filled by the appellant, and the importance of compliance
of the Rules of Court.
[15] It is
trite law that when an appeal is noted, the appeal operates to
suspend any part of the award that is adverse to the interest of an
employee, but does not operate to suspend any part of the award that
is adverse to the interest of an employer
[16] However, in terms of
section 89(7) an employer against whom an adverse award has been
made, may apply to the Labour Court for an order varying the effect
of sub section (6) for the court to make an appropriate order.
[17] Now, in view of the
authority referred to above, can the Court find that there is an
appeal noted by the applicant against the arbitration award prior to
the filing of this application to vary the adverse effect of the
award against him? When I speak of an appeal noted against the award,
I mean an appeal properly noted as required by the authority referred
to by me. In my view, not.
[18] Mr Boltman submitted
and argued that the noting of an appeal against the award must
preceed the application for the suspension of the operation of the
adverse effect of the award, made against an employer. In this case,
the applicant. He contended that in the present application an appeal
has not been noted because Form 11 delivered was not accompanied by
Form LC 41.
According to him the
requirements for the noting of a proper appeal have not been met.
These requirements, he said are those contained in the Labour Rules,
Rule 17(1)(c) read with Rule 17(3).
[19] He
further argued that an appeal against an arbitrator award must be
made on form LC41 as per Rule 23(2)(a) to (d) of the Conciliation
Arbitration Rules, and be delivered with form 11. In this present
matter, he submitted, no appeal in terms of the Conciliation
Arbitration Rules is before Court and as such, no appeal has been
noted. He referred the Court, as authority, to a few cases of this
Court and one such case is Nedbank
of Namibia Ltd v Louw,
wherein Henning, AJ (as he then was) comprehensively discussed the
provisions of sections 86, 87 and 89 of the Labour Act when dealing
with a similar appeal. He further cited numerous other cases of this
Court which cases did not deal with an application to stay the effect
of the award pending an appeal but rather with different issues.
[20] I think there is
substance in counsel’s submission. The applicant has a high
mountain to climb. The provisions of Rule 17(1)(c) read with sub rule
(3) thereof are mandatory and any failure to comply therewith, will
result in no proper noting of an appeal as envisaged by the rule.
[21] In fact, any
intended appeal noted against an arbitration tribunal award in terms
of section 89 of the Act, must be noted in accordance with the Rules
relating to the Conduct of Conciliation and Arbitration before the
Labour Commissioner published in Government Notice No. 262 of 31
October 2008. The applicant, therefore, must follow the procedure in
Rule 23(1) and (2) of the Conciliation and Arbitration Rules
indicated above. The appeal must be noted by delivery within 30 days
of the party’s receipt of the arbitrator’s award, to the
Labour Commissioner on Form LC 41.
[22] In the present
appeal, notice of the appeal was not given on Form LC 41 rendering
the appeal not properly noted as Mr Boltman argued. This omission by
the applicant forms the core objection raised in the first point in
limine by the respondent. Mr Boltman stressed that
non-compliance of the requirements stipulated in the Rules relating
to the conduct of the Conciliation and Arbitration before the Labour
Commissioner has the effect of an appeal not to have been noted
properly. He stressed that there is no appeal before Court in this
application. He then requested the Court to dismiss the application
on that point alone.
[23] Mr Mouton on the
other hand argued that there is nothing in the Rules suggesting that
an appeal must be noted prior to the application proceedings to stay
the adverse effect of the award. He submitted that the notice of
appeal was lodged at the same time with the application.
[24] I have already
indicated above that the notice of appeal delivered by the applicant
was not done in accordance with Rule 23(2) relating to the conduct of
the Conciliation and Arbitration before the Labour Commissioner
published in Government Notice No. 202 on 31 October 2008 –
known as the Conciliation and Arbitration Rules – making the
appeal not properly been noted. It is not denied, in any event, that
Notice of Appeal was delivered at the same time together with the
urgent application. What is denied is the validity of such notice due
to not being delivered on Form LC 41.
[25] According to Mr
Mouton, the case law listed by Mr Boltman only states that, or is to
the effect, that an application for stay of proceedings cannot hang
in the air, but to be supported by the noting of an appeal. He
distinguished the facts of the Nedbank matter and those
in this application and said that in the Nedbank matter,
no Notice of Appeal was filed at the time of the application for
stay. He indicated to the Court that in the present application, the
Notice of Appeal was, in any event, faxed to the offices of the Legal
practitioners of the respondent. In conclusion, Mr Mouton –
submitted that the first point in limine of the
respondent is baseless as it was an urgent application, and that
there was a prayer in the Notice of Motion asking for the forms of
service relating to time and the Rules of Court be dispensed with.
[26] It is not denied,
that Notice of Appeal was delivered together with the urgent
application.
[27] I agree that it is
an urgent application brought before Court, which by its nature
should be treated differently from normal applications. The Court can
condone the non-compliance of the rules in urgent applications but
only if a proper application has been filed. The time periods and the
form of service, if urgency has been established by the applicant,
the Court will condone the non-compliance of the Rules.
[28] However, the
objection by the respondent in the present application is that there
is no application for stay before Court due to the error made by the
applicant when it delivered the Notice of Appeal. The objection goes
further and state that the application be ignored because the appeal
was incorrectly noted by not following what is provided for in the
Act and the Rules.
[29] Therefore, it is
incorrect for Mr Mouton to argue that there is nothing in the rules
suggesting that an appeal must be noted prior to the application
proceedings. One has to read Rule 17(1)(c) together with section
89(6); (7); (8) and (9) to understand what the law requires of the
applicant when applying for an order from the Labour Court to vary
the effect of an adverse award made against him or her.
[30] It is my view that
the respondent has raised a valid point in his first point in
limine which must be upheld, and the application to be
dismissed on that point alone. Therefore, in view of the conclusion I
have reached as aforesaid, it is not necessary to deal with the
remaining two points in limine.
[31] Accordingly, I make
the following order:
1. The first point in
limine raised by the respondent is upheld;
2. The application is
dismissed.
_______________
E P UNENGU
Acting Judge
APPEARANCES
APPLICANT: MR BOLTMAN
PRACTITIONER FOR THE
APPLICANT GF KöPPLINGER
LEGAL PRACTITIONERS
RESPONDENT: MR MOUTON
PRACTITIONER FOR THE
RESPONDENT MUELLER
LEGAL PRACTITIONERS
van Niekerk v MB Truck Spares (LC 72/2013) [2013] NALCMD 20 (20 June 2013);