Simana V Old Mutual Life Assurance Company (LC 110-2015) 2016 NALCMD 32 (12 August 2016)

REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT Case no: LC 110/2015

In the matter between:

KEIMETSWE SIMANA APPLICANT

OLD MUTUAL LIFE ASSURANCE COMPANY (NAMIBIA) LTD 1ST RESPONDENT HOLGER SIRCOULOMB N.O. 2ND RESPONDENT

Neutral citation: Simana v Old Mutual Life Assurance Company (Namibia) Ltd (LC 110-2015) [2016] NALCMD 32 (12 August 2016)

Coram: UNENGU AJ Heard: 12 February 2016 Delivered: 12 August 2016

Flynote: Labour Law – arbitration Review application against arbitrator’s award – applicant alleging arbitrator committed misconduct alternatively gross irregularity for failure to conciliate the dispute and to disregard a Supreme Court judgment – Facts disclose questions of law not irregularities or misconduct in terms of the Labour Act – Application dismissed as Review process was followed instead of Appeal process by the applicant. 2

Summary: The applicant filed an application for review against an arbitrator’s award issued on 15th December 2015 in favour of the first respondent. At the commencement of the arbitration proceedings, points in limine were raised on behalf of the first respondent that the claim of the applicant has lapsed and prescribed therefore the second respondent lacked jurisdiction to hear the claim.

The points in limine were upheld and as a result, the matter was finalised without attempting to conciliate the dispute. Not happy with the decision of the second respondent, the applicant has sought to review and set aside the decision. However, on review the Labour Court held that the applicant followed a process of review instead of appeal and dismissed the application.

(i) The application is dismissed.

(ii) No order as to cost made.

JUDGMENT

UNENGU AJ:

Introduction

[1] The applicant filed a review application on the 15 January 2015 pursuant to section 89(4) of the Labour Act, No 11 of 2007 (hereinafter referred to as the ‘Act’) from the Office of the Labour Commissioner against the whole award by the second respondent, Mr Holger Sircoulomb, issued on the 15 December 2014, but received by the parties on 16 December 2014 under the case number: CRWK 792-14, in which she seeks the following relief: 3 ‘1. Declaring that the Arbitrator committed misconduct alternatively gross irregularity in the conduct of the arbitration proceedings; and

2. Declaring that the Arbitrator exceeded his powers as an Arbitrator.

3. Reviewing and setting aside the entire arbitration proceedings by the Arbitrator, Mr. Holger Sircoulomb, held under Case Number CRWK792-14 in which an arbitration award was issued on 15 December 2014.

4. Ordering such Respondent who may elect to oppose this Application, to pay the costs thereof, jointly and severally the one paying the other to be absolved.

5. Granting such further or alternative relief as this Honourable Court may deem meet.’1

[2] The applicant relies on the following grounds for review:

‘(i) The Arbitrator committed misconduct alternatively gross irregularity in the conduct of the Arbitration Proceedings; and

(ii) The Arbitrator exceeded his powers as an Arbitrator.’2

Background

[3] The applicant in the present matter is Ms Keimetswe Simana, an adult female, former employee of the first respondent. The first respondent is Old Mutual Life Assurance Company (Namibia) Limited, a company duly incorporated in terms of the laws of the Republic of Namibia, with its principal place of business at Old Mutual Tower, No 233 Independence Avenue, Windhoek, Republic of Namibia. The second respondent is Mr Holger Sircoulomb, an arbitrator duly appointed in terms of section 85(4) and (5) of the Act and herein cited in his official capacity.

[4] In summary, the applicant was employed as ‘Team Leader: Front Office’ by the first respondent since 1 January 2010. On the 18 June 2013, the applicant was charged by the first respondent with various charges of misconduct and similarly

1 Notice of Motion for Review, p1-2.

2 Supporting affidavit of Mr Otniel Podewiltz, p3; alternatively p8 of the Record. 4 dismissed by the first respondent on the 14 March 2014 following the recommendations of the chairperson of the disciplinary hearing held on the 14 August 2013.3

[5] The applicant accordingly appealed internally which appeal hearing was held on the 20 August 2014. As expected, the appeal chairperson upheld the findings by the initial disciplinary chairperson and the first respondent confirmed the appeal findings on the 17 September 2014.4

[6] Still feeling aggrieved, the applicant on the 6 October 2014 referred a dispute of unfair dismissal, unfair labour practice, unilateral change of conditions of employment and severance to the Office of the Labour Commissioner, 5 and the matter was set down for hearing before the second respondent on the 14 November 2014.6

[7] At the hearing, the first respondent raised the following points in limine, namely: lapsing, prescription and jurisdiction in respect of documents and heads of arguments filed by the parties beforehand.7

[8] The second respondent heard arguments on the points in limine on the 26 November 2014 without having conciliated the matter first and postponed the matter to deliver his award, which award was subsequently issued on the 15 December 2014 and delivered to the parties the next day.

[9] In summary, the second respondent found that proceeding with mandatory conciliation before addressing the question of jurisdiction would close the door to the first respondent and it would have no merit in bringing up that point at a later stage. Accordingly, the question of jurisdiction had to be decided at the onset, that is, before engaging in mandatory conciliation otherwise it would be pointless to conciliate a matter over which he did not have jurisdiction. Secondly, the second

3 Record, p126.

4 Record, p127.

5 Record, p108 (Form LC 21).

6 Record, p127 para 14.

7 Record, p128 para 20. 5 respondent found that Article 81 of the Constitution of the Republic of Namibia (hereinafter referred to as the ‘Constitution’) does not apply to the Conciliation- Arbitration process. Suggesting that, Supreme Court decisions do not bind arbitral tribunals in the Conciliation-Arbitration process as arbitral tribunals and courts within the judicial hierarchy are different and separate processes.8 Lastly, the second respondent found that the referral of unfair dismissal by the applicant was indeed out of time or had lapsed and that the matter should have been referred at the end of the disciplinary procedure, namely within six months from 14 March 2013.9

[10] This court is now called upon by the applicant as opposed to by the first respondent, to provide clarity to their bone of contention involving:

(i) Whether the Arbitrator misconducted himself, alternatively acted grossly irregular in the conduct of the arbitration proceedings; and

(ii) Whether the Arbitrator exceeded his powers.

Discussion

Apart from the reference made to the issue of whether review was proper before Court by the first respondent in its heads of argument, counsel did not argue or mention the issue during his oral submissions.

[11] Review, it must be noted, does not concern itself with the decision arrived at but rather, how that decision was reached.10

‘Review of arbitral awards is governed by subsection (4), read with subsections (5) and (10), of s 89 of the Labour Act 11 of 2007. Broadly speaking there are four distinct categories of judicial review. The first type of review relates to irregularities and illegalities in the proceedings before a lower court (‘category 1 reviews’). Section 20 of the High Court Act 16 of 1990 contemplates precisely this type of review. The second category is meant to control proceedings before tribunals (‘category 2 reviews’). The third category is meant to

8 Record, p139-141.

9 Record, p141-151.

10 Atlantic Chicken Company (Pty) Ltd v Mwandingi and Another (SA 45/2012) [2014] NASC 10 (15 July 2014). 6 control acts of administrative bodies and administrative officials (‘category 3 reviews’). The fourth (and last) category comprises reviews provided by other legislation (‘categories 4 reviews’)... Review of arbitral awards under the Labour Act falls under category 4 reviews...’11

Accordingly, ‘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’.12

[12] The present matter before this court, is a review brought in terms of section 89(4) and (5) of the Act which provides:

‘(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...

(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...’

[13] Accordingly, Parker, J states that ‘there is no room for additional grounds on which an alleged ‘defect’ in arbitration proceedings can be based as far as the Labour Act, 2007 is concerned.’13 In this matter the applicant, contends that the defect is premised on two legs which are:

11 Mokwena vs Shinguadja (LC 52/2011) [2013] NALCMD 10 (28 March 2013), para 2.

12 Purity Manganese (Pty) Ltd v The Commisioner Tuulikki Mwafufya-Shikongo N.O. and Two Others (LC 5/2010), para 15.

13 Parker, C.2012.Labour Law in Namibia.Windhoek: Unam Press, p214. 7 1. on the basis of non-compliance with section 86(5) of the Act, which amounts to misconduct and/or a gross irregularity as well as the second respondent having acted ultra vires; and

2. on the basis of non-compliance with Article 81 of the Constitution, which amounts to misconduct and/or a gross irregularity as well as the arbitrator acting ultra vires.14

Naturally it follows that the applicant in the matter bears the burden of proving the existence of one or more of the grounds for review in terms of section 89(5) of the Act.

[14] Dealing with the first leg, it is eminent to dissect section 86(5) of the Act.

‘ Unless the dispute has already been conciliated, the arbitrator must attempt to resolve the dispute through conciliation before beginning the arbitration.’ 15

The courts are not there to usurp the powers of the legislature by making laws, but its role has always been to interpret and apply the law.16

[15] Mr Kasper for the plaintiff contended through his citation of Shanjenka v Transnamib Holdings Ltd, that the provision above is indicative of being peremptory and not discretionary through the use of the word ‘must’.17 In other words, the legislature has intended that disputes referred to the Office of the Labour Commissioner must first undergo the mandatory conciliation process in an attempt to settle the matter and only if such attempt avails no success, is the conciliator empowered to replace its hat of conciliator with that of arbitrator.18

14 ‘ A decision of the Supreme Court shall be binding on all other Courts of Namibia and all persons in Namibia unless it is reversed by the Supreme Court itself, or is contradicted by an Act of Parliament lawfully enacted.’ [my own emphasis]

15 [Section 86(5)]

16 The Constitution of the Republic of Namibia, Article 1(3) [doctrine of separation of powers], Article 44 [legislative power vests in the legislature].

17 P17, para (v) of the applicant’s heads of argument. Shanjenka v Transnamib Holdings Ltd (LCA 89/2009) [2012] NALC 23 (15 June 2012), para 12 ‘The word “must” used by the Legislature is an indication that afore-mentioned provisions are peremptory and that there must be a process of conciliation prior to any arbitration proceedings.’ 8 [16] Consequently, the plaintiff submits that such blatant disregard of the law, more specifically section 86(5) of the Act, amounts to misconduct, alternatively a gross irregularity within the proceedings which in turn is so serious that it prevented the applicant from not having her matter tried fully and fairly. 19 Furthermore, it is his argument that through such non-compliance with the law, the second respondent acted ultra vires.20

[17] Mr Maasdorp, counsel for the first respondent, replies to the case of the plaintiff on this aspect by holding that the second respondent’s non-compliance with section 86(5) of the Act cannot amount to misconduct in the ordinary use of the word, nor can it in the alternative be regarded as a gross irregularity as it is not of such a serious nature as to render the applicant’s right to a fair trial void. In addition, he contends that the applicant has used the route of review and not the platform of appeal which was incorrect, as questions of law surfaced.

[18] Mr Maasdorp, justifies his allegations by referring to the case of Samaria v Angula N.O. and Others, where Ueitele, J cited the matter of Total Support Management (Pty) Ltd and Another v Diversified Health Systems (SA) (Pty) Ltd and Another,21 defining the concept of misconduct as ‘‘wrongful and improper conduct’’, '‘dishonesty’‘ and '‘mala fides or partiality'’ and '‘moral turpitude’’.22 Accordingly, a bona fide mistake by an arbitrator on the law or facts does not qualify as misconduct, no matter how gross it is, unless of course such mistake is so manifest that the only inference one can draw is that it could not have been made without misconduct. 23 I do not think that in the present matter the conduct of the arbitrator falls in the definition of the Total Support Management case above.

18 Section 86(6) of the Act supported by Rule 20(1) of the Rules Relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner: Labour Act, 2007 (Act No. 11 of 2007) [hereinafter referred to as ‘the Rules of Conciliation and Arbitration’].

19 Applicant’s Heads of Argument, p12 para (a).

20 Applicant’s Heads of Argument, p15 para (iv).

21 2002 (4) SA 661 (SCA).

22 (LC 129/2012) [2015] NALCMD 6 (18 March 2015), para 12.

23 Ibid, para 11 (The principle is cited using the case of Hyperchemicals International (Pty) Ltd and Another v Maybaker Agrichem (Pty) Ltd and Another 1992 (1) SA 89 (W) at 100, as reference). 9 [19] Furthermore, Mr Maasdorp states that misconduct as a ground is therefore excluded as explained above, but the concept of ‘gross irregularity’ remains. Ueitele, J continues to examine this concept by referring to the matter of Bester v Easigas (Pty) Ltd and Another, where the court held that ‘‘... 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.’’24 This principle was also alluded to by Parker, J in his book titled Labour Law in Namibia.25

[20] Mr Maasdorp sums up this argument by contrasting the cases of Samaria v Angula N.O. and Others,26 with Purity Manganese (Pty) Ltd v Shikongo N.O. and Others,27 in respect of appeals versus reviews, concluding that the approach followed in the Samaria judgment should be followed and not that of the Purity Manganese matter, as the latter matter was premised on South African case law which differs from our present Namibian standing and the law.

[21] It is evidently clear from the second respondent’s award that the matter never participated in the mandatory section 86(5) conciliation as no certificate of unresolved dispute was issued nor a certificate of resolution had been filed by the second respondent. Consequently, the mandatory procedure was not complied with, by the second respondent. The question ultimately remains whether such decision is reviewable in that such decision amounted to misconduct, alternatively a gross irregularity of the arbitration proceedings and in turn amounted to the arbitrator acting ultra vires?

[22] In finding clarity, this court is of the view that it must interpret this provision in terms of its ordinary grammatical meaning and because it is clear and unambiguous, the court must simply apply it.28 In other words, the wording in section 86(5) of the Act is peremptory. Be that as it may, such non-compliance cannot be equated to misconduct, as there was no dishonesty or mala fides proven by the applicant on the part of the second respondent, nor was there proof that such irregularity (non-

24 Ibid, para 13 (1993 (1) SA 30 (C)).

25 Ibid, para 14 (Parker, C.2012.Labour Law in Namibia. Unam Press, p199).

26 Supra footnote 22.

27 2013 (2) NR 473 (LC).

28 Van As and Another v Prosecutor-General 2000 NR 271 (HC), p 278. Also, in Venter v R 1907 TS 910, p913. 10 compliance with section 86(5)) was so gross as to render the applicant’s Article 12 right to a fair trial void. The question then comes – did the second respondent act ultra vires? Is it counsel’s contention that the second respondent acted ultra vires because he did not conciliate the dispute before attending to the objection of jurisdiction raised by the first respondent? An arbitrator will act ultra vires his powers only if he or she has acted outside the provisions of section 86(15). Blatant disregard of the law, in my view cannot give rise to acting ultra vires the powers of the arbitrator in terms of section 86(15) - not on the facts of the present matter.

[23] Over and above this line of arguing, the court finds that the second respondent was correct to resolve the points in limine raised before proceeding to conciliate the dispute.29 The second respondent raised a point of jurisdiction – contending that the dispute has lapsed and prescribed. The arbitrator had no choice but first to determine whether he had jurisdiction or not before he could think of conciliating and arbitrating the matter. He upheld the point in limine raised and considered himself not having jurisdiction to hear the matter. In my view, the upholding of the point of lack of jurisdiction to hear the dispute is the gravaman which brought the arbitration proceedings to an end which the applicant should have first rolled out of his way because it is the award he made. It would have been wrong and irregular for the arbitrator again had he conciliated the dispute before deciding the point in limine of jurisdiction. For this reason this court cannot set aside the second respondent’s award on the basis of this defect as alleged.

[24] Furthermore and accordingly concurring with counsel for the 1st respondent on the aspect of questions of law surfacing; if the applicant is of the view that the arbitrator applied the law wrongly, his remedy was to appeal the decision made by the arbitrator and point out the law the arbitrator wrongly applied.

[25] The second leg outlined in the applicant’s call for review is premised on the fact that the second respondent exceeded his powers when he blatantly disregarded the Supreme Court judgment of National Housing Enterprise v Hinda-Mbazira,30 and

29 Record, p134-137.

30 (SA 42/2012) [2014] NASC 9 (4 July 2014). 11 the Labour Court matter of Shoprite Namibia (Pty) Ltd v Haoses,31 which in turn constitutes misconduct, alternatively a gross irregularity in the proceedings.

[26] Mr Kasper notes that Article 81 of the Constitution binds all courts and all persons in Namibia to the decisions taken by our Supreme Court unless such decision is not in line with the Constitution or any Act of Parliament. He furthermore contends that arbitrators are required to identify and apply the relevant principles of Namibian law to a dispute.32 Such law will naturally encompass court decisions, especially Supreme Court decisions, which is the final mouthpiece of the judicial system. As such, he concludes that this disregard amounts to misconduct, alternatively a gross irregularity of the proceedings and the arbitrator having accordingly acted ultra vires.

[27] Although this point is not attended to by the first respondent in his heads of argument, the court is called upon to consider whether arbitrators as such fall within the ambit of Article 81 of the Constitution and if so, whether this disregard to the decision as cited above amounts to misconduct, alternatively a gross irregularity of the proceedings and the arbitrator having acted ultra vires?

[28] Article 81 of the Constitution does not expressly make mention of arbitral tribunals unlike in other Articles of the Constitution where express mention is made thereof. The court in this regard can only apply logic to this question and argue that although not expressly stated, arbitral tribunals are included in the ambit of Article 81 of the Constitution. Imagine if the reverse were true - arbitral tribunals could apply the law at their discretion, despite a pronouncement already made on that very issue by the Supreme Court – the final mouthpiece of the judicial system. It would lead to an absurdity as awards issued contrary to Supreme Court decisions would almost always be taken on appeal or review and the Labour Court would have no other option but to apply the binding decision. Concluding that arbitral tribunals are not bound by Supreme Court decisions would remain an illogical stance to take.

[29] With that question answered in the affirmative, the question that remains is whether such disregard by the second respondent amounts to misconduct,

31 (LCA 18/2014) [2014] NALCMD 46 (26 November 2014).

32 Applicant’s Heads of Argument, p14 para (iii). 12 alternatively a gross irregularity of the proceedings and the arbitrator having acted beyond his powers?

[30] Mr Kasper referred the court to the matter of Strauss v Namibia Institute of Minining & Technology & Others where Ueitele, J stated the following:

‘[50] The hallmark of arbitration is that it is an adjudicative process. As arbitration is a form of adjudication the function of an arbitrator and the Labour Commissioner is not administrative but judicial in nature. The Labour Commissioner must therefore, before arriving at any conclusion, consider any complaint brought to his attention judiciously... [51] I am of the view that the Labour Commissioner has failed to appreciate his role and responsibilities... The approach taken by the Labour Commissioner is inconsistent with an adjudicative process and a clear negation of the applicant’s rights enshrined in Article 12(1) (a) of the Namibian Constitution.’

[31] In the words of Miller, AJ, ‘Sections 89(4) and 89(5) of the Labour Act, must be read in conjunction with the provisions contained in the Constitution of Namibia. Article 12 and 18 of the Constitution provides for fairness and reasonableness in the determination of disputes.’33 Although the Office of the Labour Commissioner is not part and parcel of the judiciary, it performs judicial functions. Consequently, arbitrators should appreciate their roles and responsibilities, not in isolation, when resolving disputes. The line of thought in arbitral awards must take cognisance of the law, including decided cases, which cannot negate therefrom otherwise it may render the applicant’s right to a fair trial void.

[32] Seemingly, without repeating the law regarding the constitution of defects as discussed above, this Court is inclined not to accept the position of the applicant that the failure by the second respondent to be bound by the Supreme Court decision of Hinda-Mbazira as cited above, automatically rendered the matter prescribed and following suit therefrom undresses the second respondent with the necessary jurisdiction and even more so claims finality over the matter. Accordingly, this defect is regarded as an error of law, a legal point, and not as a gross irregularity nor misconduct by this court being so manifest that the court finds that the applicant’s case was not fully and fairly decided. It is on this basis, that the court will not allow

33 Purity Manganese (Pty) Ltd v The Commisioner Tuulikki Mwafufya-Shikongo N.O. and Two Others (LC 5/2010), para 11. 13 the application for review to succeed and to set aside the second respondent’s award.

Conclusion

[33] As already pointed out above, before the second respondent could start with hearing or conciliating the dispute, he was obliged to deal with the point in limine raised on jurisdiction – which he did. The question whether he must have conciliated first before dealing with the point in limine, is untenable. If he conciliated first before resolving the issue of jurisdiction, the second respondent would have made a serious mistake. He has first to determine whether he had powers in terms of the Act to hear the dispute or not. By so doing, in my view, the second respondent did not commit misconduct in relation to the duties of an arbitrator nor did he commit a gross irregularity in the conduct of the arbitration proceedings. His expression of not to be bound by the Supreme Court decision in the matter of Hinda-Mbazira cited above is a mistake of law which called for an appeal process not review. The procedure followed to hear first the points raised is correct but understood the law wrongly.

[34] The court in interpreting section 118 of the Act, does not find the respondent to have engaged in frivolous or vexatious conduct when it defended the matter therefore costs cannot be awarded. 34

[35] Consequently, and in view of the above reasons and conclusions, I make the following order:

(iii) The application is dismissed. (iv) No order as to cost made.

------E P UNENGU Acting Judge

34 As confirmed in the case of Strauss v Namibia Institute of Mining & Technology (LC 94/2012) [2013] NALCMD 38 (6 November 2013), para 52. 14

APPEARANCES

APPLICANT : G Kasper of Murorua & Associates, Windhoek

FIRST RESPONDENT: R Maasdorp Instructed by Köpplinger Boltman, Windhoek

SECOND RESPONDENT: No appearance