NOT REPORTABLE
REPUBLIC OF NAMIBIA
LABOUR COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: LCA 33/2010
In the matter between:
LOURENCO GREEN
...................................................................................APPELLANT
and
WESBANK (PTY) LTD
.............................................................................RESPONDENT
Neutral
citation: Green v Wesbank (Pty) Ltd (LCA 33/2010) [2013]
NALCMD 24 (12 July 2013)
Coram: HOFF J
Heard: 17 May
2013
Delivered: 12
July 2013
ORDER
(a) The applicant’s
non-compliance with the provisions of Rules 17(1)(c), 17(19)
and 17(25) is condoned.
(b) The appeal under case
number LCA 33/2010 is reinstated.
(c) Leave is granted to
the applicant to amend the notice of appeal and to deliver such
amended notice by not later than 19 July 2013 at 16h00.
JUDGMENT
HOFF J:
[1] This is an
application for an order in the following terms:
1. condoning applicant’s
non-compliance with the Rules of this court as provided for in Rules
17(1)(c), 17(19) and 17(25);
2. re-instating the
appeal under case LCA 33/2010;
3. granting leave to the
applicant to file an amended notice of appeal.
This application is
opposed.
Background facts
[2] During May 2007 the
applicant was charged with misconduct by the respondent at a
disciplinary hearing for being under the influence of an intoxicating
substance while at work. The applicant resigned before the
disciplinary process was concluded and lodged a complaint of
constructive dismissal in the district labour court at Walvis Bay.
[3] On 5 March 2009 the
district labour court upheld the complaint of constructive dismissal
and ordered the respondent to reinstate the applicant. The applicant
was reinstated on 1 April 2009 but was however immediately suspended
on the basis of being under the influence of alcohol while at work
(first charge), a second charge of breach of trust and dishonesty and
a third charge of non-performance of basic duties and gross
negligence in the execution of his duties.
[4] On 7 April 2009 the
applicant was found guilty on all three charges and dismissed. The
applicant subsequently lodged an appeal against his dismissal but the
decision to dismiss was confirmed by the chairperson of the appeal
hearing.
[5] On 28 July 2009 the
applicant laid a complaint of unfair dismissal with the Labour
Commissioner and the matter was referred to arbitration. On 5 October
2009 the arbitrator dismissed the complaint and ruled that the
dismissal was fair. It is this decision that the applicant seeks to
have overturned.
Notice of points of
law to be raised
[6] Before I turn to the
relief prayed for by the applicant I first need to deal with another
issue.
[7]
On 21 January 2013 the respondent filed a notice of intention to
raise a point of law in terms of Rule 6(9)(b)(ii)
of the Labour Court Rules.
Rule
6(9)(b) reads as
follows:
‘Any
respondent opposing the grant of the relief sought in the notice of
motion must – within 14 days of notifying the applicant of his
or her intention to oppose the application –
(i)
deliver an answering affidavit together with any relevant documents;
or
(ii)
if he or she intends to raise a point
of law only, deliver notice of such intention stating concisely the
point of law.’
[8] The respondent filed
its notice of opposition to the application on 5 December 2012 but
did not file an answering affidavit.
[9] Since the notice of
intention to raise a point of law only was delivered outside the 14
days period prescribed in Rule 6(9)(b) the respondent was
obliged in terms of Rule 15(a) to apply, on good cause shown,
for the condonation of the non-compliance of Rule 6(9)(b).
This was not done. This notice is therefore disregarded. I thus do
not deem it necessary to deal with the second objection, namely that
the notice do not contain points of law.
Relief prayed for
[10] The respondent filed
no answering affidavit, therefore the facts stated in the applicant’s
founding affidavit were not placed in dispute and should be accepted.
(See O’Linn v Minister of Agriculture, Water and Forestry
2008 (2) NR 792 at 795 par. 8; Oshakati Tower (Pty) Ltd v
Executive Properties CC and Others (2) 2009 (1) NR 232I–J).
[11] Mr de Beer who
appear on behalf of the respondent submitted that the facts are not
in dispute but than an application may be opposed on points of law.
It was submitted that in terms of Rule 17(25) an appeal must be
prosecuted within 90 days after the noting of an appeal and since
applicant’s notice of appeal raises issues of both fact and law
it is not in compliance with the provisions of the Labour Act 11 of
2007. Thus where the court is asked to reinstate the appeal, it is
asked to reinstate a document which does not meet the statutory
requirements.
[12] Mr de Beer also
questioned whether this court may grant leave to file an amended
notice of appeal if such amended notice of appeal is not attached to
applicant’s papers.
[13] The applicant in his
founding affidavit explains that following the arbitration award of 5
October 2009 he instructed Tjitemisa & Associates to assist him
with the appeal against the arbitration award. A notice of appeal was
filed on 6 November 2009 by Tjitemisa & Associates. He was
advised by his current legal representative that the appeal was not
noted in accordance with the Rules as Form 11 was not completed and
delivered together with the notice of appeal to the Registrar, the
Commissioner and the other parties to the appeal.
[14] Furthermore, that
the notice of appeal incorrectly states that the appeal is founded on
errors of fact and law. The applicant continued to state that he had
been advised by his legal practitioner that although the notice
refers to ‘errors of facts’ the grounds raised are in
essence errors of law.
[15] The applicant admits
that no application for a trial date was filed within the 90 day
period referred to in Rule 17(25) and that the appeal has
consequently lapsed.
[16] On 11 March 2011
Tjitemisa & Associates addressed a letter to the applicant in
which he was informed that they were withdrawing as applicant’s
legal representatives due to a lack of instructions. The applicant
stated that the letter did not specify what instructions he had
failed to provide.
[17] On 1 July 2011
applicant appeared in person before this court when this appeal was
removed from the roll in order for applicant to obtain legal aid.
Applicant stated that he applied for legal aid with the Directorate
of Legal Aid in the Ministry of Justice on the same day and that his
application for legal aid was approved a year later on 19 July 2012,
and Nixon Marcus Public Law Office was appointed as his legal
representatives.
[18] The applicant stated
that he only managed to secure an appointment with his current legal
representative on 4 September 2012 as the legal practitioner was
engaged in other matters and was also out of office for the latter
part of August 2012. The applicant stated that given the busy
schedule of Mr Marcus, he was only able to complete the process of
studying the record in order to ascertain the prospects of success
and to advise on the appropriate steps to be taken on or about 14
November 2012 and it was decided to file the necessary papers during
the week 19 to 23 November 2012 when applicant would have been in
Windhoek.
[19] The applicant
further stated that he never had the intention of abandoning his
appeal, that himself and his wife at least once per month made
enquiries regarding his appeal during 2010 and time after time his
previous legal practitioner gave the same explanation, namely, that
he was waiting for a trial date. The applicant stated that during
September 2010 he came to Windhoek to find out about his appeal. His
previous legal practitioner demanded N$10 000 in order to put the
case on the roll and failed to tell him that the appeal had lapsed.
The applicant stated that his previous legal representative did not
indicate to him that he would not attend to the matter due to his
impecuniosity. The applicant stated that it was as a result of the
inaction on the part of his previous legal representative that the
appeal was not prosecuted and that it would be unfair and not in the
interests of justice to penalise him by not granting the relief
contained in the notice of motion.
[20] The undisputed facts
show that the applicant made regular inquiries with his legal
representative and did not passively sit by. It is also clear that at
no time prior to the withdrawal by the previous legal representatives
was there an indication that they would not attend to the appeal.
Prospects of success
[21] The district labour
court found that the first disciplinary hearing was unfair. The court
found that the applicant had been constructively dismissed. The court
further found that there was no evidence of prior misconduct and his
employment history with the respondent should have stood the
complainant (applicant) in good stead. The court found that in the
absence of any disciplinary code the dismissal was unfair, and that
the disciplinary hearing did not consider alternative penalties.
[22] After the applicant
was reinstated on 1 April 2009 he was immediately suspended and
charged with misconduct. The first charge again was that of being
under the influence of alcohol while at work. It appears that
applicant was charged again with misconduct since after he had been
convicted by the chairperson of the disciplinary hearing, but before
the conviction and the proposed sanction (dismissal) could be
confirmed by the board of the respondent, the applicant tendered his
resignation.
[23] The second
disciplinary hearing was therefore seen, as far as the first charge
was concerned, as a continuation of the first disciplinary hearing.
No new fact had arisen during the second disciplinary hearing or
during the arbitration proceedings.
[24] The judgment of the
district labour court was in my view relevant in deciding the
appropriate sanction on the first charge, namely that the sanction of
a dismissal in the circumstances was unfair.
[25] In respect of the
second and the third charges no evidence was led on which the
arbitrator could conclude that misconduct had been proved and that
applicant’s dismissal by the respondent was fair.
[26] There is in my view
good prospects of success to have the arbitration finding set aside.
[27] The applicant stated
that he no longer seeks reinstatement and that the respondent would
not be prejudiced should the appeal be reinstated.
[28] I am of the view
that for the reasons mentioned, the applicant is entitled to the
relief claimed in the notice of motion.
[29] In the result the
following orders are made;
The applicant’s
non-compliance with the provisions of Rules 17(1)(c), 17(19)
and 17(25) is condoned.
The appeal under case
number LCA 33/2010 is reinstated.
Leave is granted to the
applicant to amend the notice of appeal and to deliver such amended
notice by not later than 19 July 2013 at 16h00.
----------------------------------
E P B HOFF
Judge
APPEARANCES
APPELLANT : N Marcus
Of Nixon Marcus Public
Law Office
RESPONDENT: P J de Beer
Of De Beer Law Chambers,
Windhoek
Green v Wesbank Pty Ltd (LCA 33/2010) [2013] NALCMD 24 (12 July 2013);