![LEX SCRIPTA with Fedden Mainga Mukwata – TELECOM NAMIBIA V MANDJOLO [2023] NALCMD 20 (12 MAY 2023) – SUBSTANTIVE AND PR](https://neweralive.na/wp-content/uploads/2024/06/newera-one-1-2-1-26-28-1-9-25.jpg "newera one 1 2 1 26 28 1 9")
The first and second respondents were employees of the appellant stationed at the Rundu Teleshop as Commercial Support Agents. The first and second respondents were charged with misconduct and subjected to a disciplinary hearing which resulted in their dismissal upon conviction. They referred a dispute of unfair dismissal to the Office of the Labour Commissioner for determination. They launched an internal appeal against their dismissal which appeal was dismissed for lacking merits. It was this dismissal that the first and second respondents referred to the Office of the Labour Commissioner claiming that the dismissal was unfair.
At the Office of the Labour Commissioner, the arbitrator found in favour of the first and second respondents and ordered their reinstatement and further awarded them compensation. On 22 December 2022, the appellant filed an appeal against part of the arbitration award. On 23 December 2022, the appellant applied for and on 27 January 2023, obtained an order to stay the execution of the arbitration award pending the finalisation of the appeal.
SIBEYA J had to determine whether or not the arbitrator was correct, in law, to hold that the dismissal of the respondents was procedurally and substantively unfair. This finding was to be analysed in consideration of the grounds of appeal raised by the appellant. The learned Judge dealt applied the principles of law applicable to unfair dismissal to the facts as follows:
Procedural fairness
‘[58] It was the finding of the arbitrator that the rules said to have been contravened existed and that the respondents were aware of the said rules. This finding was not appealed against by the appellant. There is further no cross-appeal from the respondents where such finding could have perhaps been challenged. The absence of an appeal towards the said finding leaves such finding intact and unscratched. The arbitrator proceeded to find that:
‘[87] The existence of the rule was never contested by the applicants as evidence points that the treasury policy was made available to each of them. I consider the rule valid and reasonable under the circumstances.’
[59] Despite the said finding not being challenged on appeal, I hold that the finding is further supported by evidence and was correctly made.
[60] In as far as the non-attendance by the first respondent and non-participation by the second respondent in the disciplinary proceedings is concerned, parties are ad idem, correctly so in my view, that if a party fails to attend disciplinary proceedings or attends but opts not to participate in the proceedings, he or she does so at his or her own peril and should not later cry foul of the outcome of the hearing. This much was also the finding of the arbitrator.
[61] The respondents appear to have qualms with their confession letters as they state that such letters were not voluntarily made but that they were forced or coerced to draft such letters by Mr Amunyela…
[63] On procedural fairness, the arbitrator found, based on the evidence of Mr Tashiya Nauyoma, that the chairperson of the disciplinary hearing committed a gross irregularity when he telephoned Mr Nauyoma to talk the second respondent into confessing to the charges. The chairperson, on his part, testified that he could not recall talking to Mr Nauyoma regarding the said allegation. That is presently water under the bridge as we have a finding by the arbitrator that such allegation was proven.
[64] The arbitrator was correct that a chairperson of the disciplinary hearing should not be bias and impartial at all times. The arbitrator proceeded, based on the aforesaid finding, to conclude that the dismissal of the respondents was both procedurally and substantively unfair. The question that begs for an answer is to what extent the said finding impacts on the outcome of the proceedings…
Substantive fairness
[65] In a decision that is not appealed against, the arbitrator found that the respondents used the appellant’s money for private purposes. This is exactly what the charges on which the respondents were convicted of at the disciplinary hearing and dismissed entailed. This finding, I should add, is supported by the evidence presented…
[66] I hold the view that the arbitrator was correct in the finding that it was established on a balance of probabilities that the respondents transgressed the rule.
[70] I find that the finding of the arbitrator that the aforesaid action of the chairperson rendered the dismissal of the first respondent procedurally and substantively unfair is irregular and, consequently, cannot be allowed to stand.
[71] Concerning the second respondent, I find that the chairperson’s actions as per Mr Nauyoma’s testimony cannot be condoned. As alluded to herein above, a chairperson of the hearing must be unbiased and impartial at all material times. It is procedurally unfair for a chairperson of a disciplinary hearing to persuade an accused employee directly or indirectly into pleading guilty to an offence charged.
[72] Procedural unfairness is, however, not the end of the inquiry as it must be determined if the employer had a valid and a fair reason to dismiss the employee. In Indongo Auto (Pty) Ltd t/a Indongo Toyota v Iipinge (HC-MD-LAB-APP-AAA-2021/00068) NALCMD 18 (27 April 2023) para 76 – 78, Masuku J was faced with the same question, and he remarked as follows:
‘[76] …I am of the considered view that the Kamanya and Others v Kuiseb Fish Products Ltd 1996 NR 123 (LC) at 127-128 principle, should carry the day.’
[73] In Kamanya, O’Linn P at 127 -128, set out the position and effect of procedural unfairness in the dismissal of an employee where there is a valid and fair reason as follows:
‘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.
However, there may be instances where failure by the domestic tribunal to apply a fair procedure, would be sufficient for setting aside its dismissal of a complaint, e.g., where no opportunity was given to deal with the question of the appropriate sanction to be imposed and where the misconduct was not so grave as to merit immediate and summary dismissal.
In the alternative, if I am wrong in the above stated 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.’
[74] Masuku J in Indongo proceeded to state that:
‘[77] This position was confirmed by the Supreme Court in Kahoro and Another v Namibia Breweries Ltd 2008 (1) NR 382 (SC) 394 para 40. There, the Supreme Court expressed itself as follows in endorsing the Kamanya principle:
“As I understand the position, Kamanya is authority for the proposition that even if an employer fails to prove that a fair procedure was followed leading to the dismissal, the court may (not must) refuse to hold a dismissal as unfair if the employer proves a valid and fair reason for such dismissal.”
[78] The upshot of this, is that in a case where there may be a doubt or evidence that the dismissal did not follow a fair procedure, the court may, that notwithstanding, hold a dismissal to be in order if there is a fair and valid reason for the dismissal.’
[74] Applying the above Kamanya principle to the present matter, I find that the evidence led against the second responded established that the second respondent received money from Mr Hamadila; Mr Jacobs Shikongo and Mr Sackey Shilunga for payment for their accounts. I further find that the second respondent committed an act of dishonesty when she misappropriated the said money received from customers. I further find that the second respondent brought the name of the appellant into disrepute when the accounts of the said customers were suspended despite being paid for. The second respondent further failed to issue receipts for payments received in contravention of the Treasury Policy. These are all dismissible offences as per the Disciplinary Code.
[75] I find that each of the above contraventions carry with them an element of dishonesty on the part of the second respondent. It is, therefore, my finding that when the arbitrator found that, on a balance of probabilities, the second respondent transgressed the rule, he literally found that the second respondent was dishonest with the employer. In my view, the dishonesty on the part of the respondents (second respondent included) was at the very least two-phased in that: the respondents were dishonest when they received the money from the customers for payment of accounts without issuing them with receipts for the payment made, thus implying that the money is allocated to the concerned accounts only for the accounts to be suspended for non-payment; and the respondents were further dishonest when they misappropriated the money paid by the customers for personal purposes.
[76] Dishonesty has the capacity to break a relationship, and an employment relationship is built on honesty and trust. Employees and employers are expected to act honestly towards each other in order to advance their relationship. Dishonesty is hardly tolerated as it has a sharp edge capable of cutting through the bone of an employment agreement and break it to pieces.
[77] I find that dishonesty, in the circumstances of this matter, calls for dismissal, therefore, despite the procedurally irregularity referred to above committed by the chairperson in respect of the second respondent, this is a matter befitting of applying the Kamanya principle due to the presence of a valid and fair reason being proven.
Held – Section 33 of the Labour Act underpins the trite principle that the dismissal of an employee must be both substantively and procedurally fair.
Held that – the test for a fair dismissal is two-fold and it requires that for the dismissal to be fair, both substantive and procedural fairness must be proven. Failure to satisfy any of the two requirements may make the dismissal unfair.
Held further that – the finding of the arbitrator that the action of the chairperson of the disciplinary hearing to persuade the second respondent to admit to the charges rendered the dismissal of the first respondent procedurally and substantively unfair is irregular as such action was not directed to the first respondent, and consequently, cannot be allowed to stand.
Held – that a chairperson of the hearing must not be biased and impartial at all material times. It is procedurally unfair for a chairperson of a disciplinary hearing to persuade an accused employee directly or indirectly into pleading guilty to an offence charged.
Held that – employees who are similarly circumstanced should receive equal treatment and similar penalties should be applied to offenders who find themselves in similar circumstances.
Held further that – the onus is on he who alleges inconsistence to prove such inconsistence. The arbitrator, in casu, committed an irregularity in law when he found, without evidence to substantiate the finding being led, that the appellant applied the Disciplinary Code inconsistently in comparison of the first and second respondents’ matter to that of Mr Sasele.
The appeal is upheld.
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