H.S Contractors v Hang (LCA 18 of 1998) [1999] NAHC 4 (30 July 1999);
HS
CONTRACTORS versus ABEL VIHANGA
CASE
NO. LCA 18/98 Silungwe.
J. 2000.05.09
LABOUR
LAW --
Procedural steps to be taken when employer intends to terminate
contract of employment in terms of s.50(1) of the Labour Act No. 6 of
1992 - Purpose of notice to accord employee/trade union opportunity
to negotiate conditions on which, and curcumstances under which,
termination is to take place so as to minimise or avert adverse
effects on employee - negotiations must be genuine - must precede
termination.
LABOUR
LAW --
damages - can only be founded on evidence, not on submissions,
however forceful they may be.
LABOUR
LAW -
Whether a respondent can properly be convicted by a District
Labour
Court for a contravention of s.50 of the Act - s.19 of the Act does
not confer criminal jurisdiction on the District Labour Court -To
prefer a criminal charge in terms of s.50(2) of the Act, provisions
of s.84(1) of the Criminal Procedure Act must be complied with.
CASE
NO. LCA 18/98
IN
THE LABOUR COURT OF NAMIBIA
In
the matter between:
H.S.
CONTRACTORS APPELLANT
and
ABEL
VI HANG A RESPONDENT
CORAM:
SILUNGWE,
PRESIDENT
Heard
on: 1999.05.03
Delivered
on: 1999.07.30
JUDGMENT:
SILUNGWE,
J., PRESIDENT:
This
is an appeal against the entire judgment of the District Labour Court
delivered on August 28, 1997, wherein the appellant was found liable
and convicted of contravening section 50(2) of the Labour Act, Act
No. 6 of 1992 (hereafter referred to as the Act); he was then
sentenced to a fine of NS3,000.00 or 7 months imprisonment and
ordered to pay the sum of NS12,150.00 to the respondent "as full
and final settlement of all the legal issues" between the
parties.
Mr
Mouton appears for the appellant but there is no appearance by the
respondent or his representative. The respondent has hitherto been
represented by his trade union - the Namibia Workers Union (hereafter
referred to as NATAU) and there is proof that NATAU was served with
the notice of hearing through registered mail on February 9, 1999 and
that on April 19, 1999, the appellant's Heads of Argument were served
on NATAU and signed for by its representative. The service is
supported by the appellant's affidavit. I am satisfied that there has
been proper service and that the appellant is, therefore, entitled to
be heard, notwithstanding the non-appearance of the respondent or his
representative.
The
circumstances that gave rise to this matter may shortly be stated.
The appellant is a company responsible for testing and evaluating
certain new vehicles prior to their release on the market. At the
material time, the appellant had under its employment a total of 27
test drivers, including the respondent.
On
November 2, 1996, the appellant decided at a Board meeting to
retrench 7 test drivers, inclusive of the respondent (allegedly on
the basis of a recession in its business). All these drivers were
members of NATAU. On November 20, 1996, the appellant sent a notice
(letter) of retrenchment to the Labour Commissioner a copy of which
was served on NATAU. On November 22, the appellant sent a letter to
the respondent notifying him of the retrenchment. This letter was
copied to the Labour Commissioner as well as to NATAU c/o Mr Onesmus
(who was the NATAU's acting General Secretary and who represented the
respondent, on behalf of NATAU, at the hearing of the matter in the
Court a
quo). That
letter read:
'"Dear
Mr Vihanga
Although
a new contract for test vehicles has been obtained, you are most
probably aware that the number of vehicles that are currently given
to us for testing, has been reduced substantiously. Due to this fact
it has left me with no other alternative but to reduce the number of
test drivers with its contractors. The task to choose whom to
retrench was extremely difficult for me and it is with great regret
that I have to inform you that you were one of seven drivers that
will be retrenched on Monday, the 25"' of November 1996. All
leave, shift monies and other remuneration due to you will be paid on
that date. The retrenchment is being done according to the
stipulations as prescribed in the Labour Act. I have also informed
the Labour Commissioner as well as Mr Onesmus from NATAU about our
decision.
Should
we be able to again obtain more vehicles in the future then (sic) we
will firstly enquire from any of you if you will be available to join
our employ again.
Trusting
that you understand my difficult position. I remain Yours faithfully
HSTAHN
p.p.
HS CONTRACTORS"
On
November 25, 1996, the respondent was duly retrenched. On December 2,
1996, a scheduled meeting at which the merits of retrenchment were to
be discussed failed to materialise. On December 12, and apparently
ignorant of what had transpired, the Labour Commissioner advised the
appellant by letter to act in conformity with the Labour Act and so
also did NATAU (on the same date). It is not in dispute that
subsequent attempts by the appellant aimed at discussing the
retrenchment all came to nothing. Also not in dispute is the fact
that, on November 26, 1996, the appellant was paid his salary for two
months, that is to say, for November and December 1996.
On
these facts, the chairperson of the District Labour Court found, and
properly so, in my view, that the issues raised by the case revolved
around the provisions of section 50 of the Labour Act. In Mr Mouton's
submission, the purpose of this section is to bring the employer and
the employee's representatives to the negotiation table when the
former intends to terminate the employee's contract of employment.
The chairperson held that it is not the language of section 50 that
the employer first terminates the contract of employment and
thereafter seeks to have negotiations concerning such termination. He
found that the respondent "had no chance to even raise an
argument as to how adversely the intended termination was going to
affect him." He, therefore, came to the conclusion that the
respondent's retrenchment was a violation of section 50(l)(a) of the
Act in that the appellant had failed to accord reasonable time to
allow for an amicable settlement of issues surrounding the
termination of the respondent's contract of employment.
This
appeal is premised on the following questions:
were
the provisions of section 50 of the Act complied with?was
the compensation awarded to the respondent justified? and
(
c) was the conviction (not to mention the sentence) competent?
Mr
Mouton's reaction is that the answer to the first question is in the
affirmative but that the other questions deserve to be answered in
the negative. As against (a), it is argued that the learned
chairperson erred in finding that the appellant had failed to comply
with the 4 weeks notification as provided for in section 50 of the
Act because, although the respondent was retrenched on November 25,
1996, the appellant paid him his salary for 2 months which must be
regarded as sufficient notification in terms of sections 47 and 50 of
the Act as such notice pay period can be regarded as due notice in
compliance with section 50. In support of this argument, he cites
African
Granite Co (Pty) Ltd v
Mineworkers
Union of Namibia & Others (1993)
14 ILJ 6996 (LCN).
First
of all, it will be observed that section 47 of the Act relates to
termination of contracts of employment by notice and this must be the
reason why the African
Granite case
finds its way into Mr Mouton's submission. We are here not concerned
with termination of contracts by notice where payment of remuneration
in lieu of such notice suffices. This is not such a case, as the
learned chairperson founded his decision of liability on section 50,
without any mention of section 47. This aspect of the submission is
thus ill-founded.
Mr
Mouton attempts to show that, as the respondent was paid remuneration
up to December 31, 1996, that date is the effective date upon which
the retrenchment took effect. But this is no more than clutching at a
straw for it is indisputable, on the facts, that the effective date
of the respondent's retrenchment was November 25, 1996.
Mr
Mouton takes the position that, having regard to the fact that the
first meeting between the appellant and NATAU scheduled for December
2, 1996, failed as a result of NATAU's non-attendance, there is, as
in the case with an employer, also a duty upon employees and/or their
representatives, as well as an obligation, to negotiate in good faith
and/or to initiate consultations. This is reminiscent of Mr van
Rooyen's submission, on behalf of the appellant, in the Court a
quo as
reflected at page 14 of the record of appeal which is to the
following effect:
The
notice was given from November to December 1996. We attempted to have
meetings to discuss the conditions of the retrenchment but the Union
representative could not attend.
Whilst
it is correct to say that both sides, in circumstances pertaining to
retrenchment, are required to enter into genuine negotiations, such
negotiations must fall within the purview of section 50(1 )(a) of the
Act, that is to say that the negotiations are designed to, and must,
precede the terminations.
It
is expedient to look at section 50 which provides that -
"50(1)
Any employer who intends to terminate any or all of the contracts of
employment of his or her employees on account of the re-organisation
or transfer of the business carried on by such employer or to
discontinue or reduce such business for economic or technological
reasons, such employer shall -
(a) inform
-
(i) The
registered trade union recognised by him or her as an
exclusive
bargaining agent in respect of such employees;
or
(ii) if
no such trade union exists, the workplace union
representative
elected in terms of section 65,
on
a date later than four weeks before such contracts of employment are
so terminated or such other period as may in the circumstances be
practicable, of his or her intentions, the reasons therefor, the
number and categories of employees to be affected by such intended
termination and the date on which or the period over which such
terminations are to be carried out;
(b) afford
such trade union, workplace union representative or the
employees
concerned an opportunity to negotiate on behalf of
such employee
or employees the conditions on which and the
circumstances under
which such terminations ought to take place
with
a view to minimizing or averting any adverse effects on such
employees;
(c)
notify the Commissioner in writing of his or her intentions and the
reasons therefor, the number and categories of employees to be
affected by such intended termination and the date on which or the
period over which such terminations are to be carried out;
(2)
..."
On
a proper interpretation of section 50(1), it is evident that once an
employer intends to terminate contracts of employment for any of the
reasons envisaged by the subsection, and takes a decision to that
effect, the employer is duty-bound to observe the following steps:
(1)
to communicate such intention and the reasons for it to the
registered trade union recognised by the employees to be affected by
the intended terminations, or the workplace union representative, as
the case may be, at least four weeks prior to the terminations of
such contracts, "or such other period as may in the
circumstances be practicable." Also to be communicated are the
number and categories of the affected employees and the date on, or
the period over, which such terminations are to take effect;
to
notify the Labour Commission in writing of the text of (a) above;
and
to
give such trade unions, workplace union representative or the
employees concerned an opportunity to negotiate the conditions on,
and the circumstances under, which such terminations ought to take
place in order to minimize or avert any adverse effects on such
employees.
The
sole reason for the period of notice reflected under (1) above is to
accord an opportunity for negotiations, if any, to be embarked upon
in connection with the conditions on, and the circumstances under,
which the terminations ought to take for the purpose of minimizing
or averting any adverse effects upon the affected employees. Surely,
the clear intention of the legislature is that such opportunity
ought to be accorded prior to (not after) the date or period upon
which the terminations are to take effect.
In
this matter, the effective date of the respondent's termination of
contract of employment was November 25, 1996. It is common cause
that although the appellant took a decision on November 2, 1996, to
terminate (inter
alia) the
respondent's contract of employment with effect from Monday November
25, 1996, that decision was not communicated to NATAU and the
respondent until Wednesday the 20th
and Friday the 22nd
of that month, respectively, which in effect gave two working days
notice to NATAU but no working days notice was accorded to the
respondent for purpose of negotiations. This, in my view, amounted
to a denial of opportunity to negotiate and was, therefore, a
fragrant disregard of the provisions of section 50(1) of the Act.
It
i
follows
that the argument advanced in this connection must be rejected. See
also a decision of the Full Bench in Carl
Martinus Visagie v Namibia Development Corporations Case
No. FA 8/97.
Having
thus disposed of question (a), I will now turn to question (b),
namely, was the compensation awarded to the respondent justified?
It
will be recalled that the sum of NS12,150.00 was awarded against the
appellant "as full and final settlement of all the legal issues
between the parties." Attacking this award, Mr Mouton submits
that it was arbitrary as no supporting evidence was presented before
the Court a
quo on
the matter.
An
examination of the record of appeal reveals (at page 22) that Mr
Onesmus, who represented the respondent before the Court a
quo, led
no evidence whatsoever as to the quantum of compensation due to the
respondent. In a question and answer situation between the Court and
Mr Onesmus, the following appears:
"Q:
What is the remuneration you are claiming?
A:
It was difficult for us to calculate because complainant was being
paid according to shifts and bonuses and how they calculated that we
don't know.
Q:
What do you expect the Court then to come up with for you? A:
May I consult my client?"
Thereafter,
the record continues: "Mr Onesmus:
[T]he
average amount per month because the claimant was being paid between
NS2 100,00 and NS1 200,00 we have added the two amounts together and
we got NS3 300,00 and then divided by two and an verage is NS1
650,00. Now calculated as from February 1997 to August 1997 i.e. 7
(seven) months X NS1 650,00 gave us NS12 150,00. This is done in
good faith and I believe it would be acceptable to court."
This
serves to illustrate how the figure of NS12,150.00 was arrived at
and gained the court's acceptance as reflected in the award.
What
Mr Onesmus said before the Court a
quo on
compensation was a mere submission. It is trite that a submission,
however forceful it may be, does not constitute evidence. There was
thus no evidence proffered on the matter at issue and Mr Mouton's
argument on this ground is accordingly upheld. The matter will,
therefore, have to be sent back to the Court a
quo for
assessment and determination of the respondent's compensation.
The
final question for determination is (c), that is to say: was the
conviction competent?
Mr
Mouton contends that the court of .first instance could not have
found the appellant criminally guilty of contravening section 50 of
the Act because -
(i) the
District Labour Court is not regarded as a criminal court;
(ii) the
appellant was not criminally charged with such an offence; and
(iii) the
offence under the Act was not proved beyond reasonable doubt.
As
regards (i), the view that 1 take is that section 19 of the Act (i.e
Jurisdiction and powers of district labour courts), does not confer
any criminal jurisdiction upon the District Labour Court. Mr
Mouton's point on this issue is, therefore, well taken.
As
to (ii) and (iii), it is appropriate to consider them together since
both are inter-related. The respondent's conviction was premised on
section 50(2) of the Act which reads:
"50(2)
Any employer who contravenes or fails to comply with the provisions
of subsection (1) shall be guilty of an offence and on conviction be
liable to a fine not exceeding $4000 or to imprisonment for a period
not exceeding 12 months or to both such fine and such imprisonment."
As
the subsection creates a criminal offence, I am naturally inclined
to examine the Criminal Procedure Act, Act 51 of 1977, section 84(1)
of which provides:
"84(1)
Subject to the provisions of this Act and to any other law relating
to any particular offence, a charge shall set forth the relevant
offence in such manner and with such particulars as to time and
place at which the offence is alleged to have been committed ... as
may be reasonably sufficient to inform the accused of the nature of
the crime."
//;
casu, there
was no charge whatsoever preferred against the appellant and,
obviously, the provisions of section 84(1) of the Criminal Procedure
Act, were not complied with. Clearly, what the District Labour Court
was faced with was a labour complaint which calls for the ordinary
standard of proof applicable to civil matters, namely, proof on a
preponderance of probabilities. Hence, the standard of proof
required in a criminal case was beside the point and, as such, could
not reasonably be expected to be met.
From
the discussion above, it is inevitable to come to the conclusion
that, in all the circumstances of the matter, the appellant's
conviction was not competent and ought, therefore, to be set aside
together with the accompanying sentence. To this extent, the appeal
has achieved partial success.
In
the result, the following order is made:
On
the issue of liability, the appeal fails and it is hence dismissed;
the
award of NS12,150.00 compensation is set aside and the case is
hereby remitted back to the Court a
quo for
the learned chairperson who presided over it to assess and
determine the quantum of compensation;
the
conviction and sentence against the appellant are both set aside;
and
in
the circumstances of the case, there shall be no order as to costs.
ON
BEHALF
OF
THE
APPELLANT
Instructed
by:
ON
BEHALF
OF
THE
RESPONDENT
Instructed
by:
ADV
C
MOUTON
Lorentz
&
Bone
MR
ONESMUS
The
Namibia
Transport
and
Allied
Workers
Union