Easy access at the tip of your fingers, subscribe to our daily ePaper version of our New Era Newspaper.
Home / LEX SCRIPTA with Fedden Mainga Mukwata - Labour court as court of appeal o
LEX SCRIPTA with Fedden Mainga Mukwata - Labour court as court of appeal o
2023-08-18Correspondent The first respondent (Mr Smith) was employed by the appellant (Desert Fruit) in 2005 as its chief executive officer until he was dismissed on 11 December 2019. In April 2017, Mr Smith went on leave with the view to negotiate a separation package with Desert Fruit. He was however subsequently suspended without pay with effect from 1 October 2017 pending disciplinary proceedings which proceeded thereafter. Before the conclusion of the disciplinary enquiry, Mr Smith lodged a dispute of unfair labour practice (concerning his suspension without pay) against Desert Fruit with the Office of the Labour Commissioner and the dispute was referred to arbitration. Desert Fruit in opposition applied for a stay in the arbitration proceedings, pending the finalisation of the incomplete disciplinary proceedings on the basis that the relief sought could be claimed once the disciplinary proceedings were finalised. The arbitrator granted the stay application in his award on 8 August 2019. Mr Smith applied to set aside the award on review to the Labour Court under s 89(4) read with s 89(5) of the Labour Court Act 11 of 2007 (the Act). It emerged during argument that Mr Smith had also filed a notice of appeal against the arbitrator’s award – during case management, the presiding judge impermissibly required him to elect between the review and the appeal and he withdrew the appeal. At issue, as per the rule 20 statement of issues (of the rules relating to the conduct of conciliation and arbitration before the Labour Commissioner), the parties referred to Mr Smith’s claimed remuneration during suspension as being N$112 000 per month. There was no mention of deductions in respect of income tax under the Income Tax Act 24 of 1981 or for loan repayments in respect of a loan advanced by Desert Fruit to Mr Smith. The parties had agreed in the loan agreement that a certain amount would be deducted from Mr Smith’s monthly salary to repay that loan.The Labour Court found that the arbitrator’s decision to ‘decline to interfere with the ongoing disciplinary hearing’ and failing to order payment during suspension or uplifting it amounted to an ‘abdication of his jurisdiction’ by declining ‘to exercise the functions entrusted to him’. Further, the court declined to refer the matter back to the arbitrator and proceeded to order payment on the basis of the rule 20 statement and made no provision for deductions from its orders to pay the sum of N$112 000 for each month of suspension. As for the costs order against Desert Fruit, the Labour Court found that there was no basis for the refusal to pay Mr Smith’s salary during the suspension. Despite efforts with reference to authority to persuade Desert Fruit otherwise, it persisted with that stance until a written argument was filed on its behalf prior to the hearing before that court. The Labour Court found the persistence in that stance to be untenable and amounted to conduct that was frivolous and vexatious. The court proceeded to grant costs in favour of Mr Smith up to 16 July 2020 and did so on the most punitive basis. The appellant is appealing against the Labour Court’s judgment and order except for para 1 of the order setting aside the arbitrator’s order staying the dispute concerning the suspension without pay.On appeal to the Supreme Court, the court had to determine, among other issues, whether the Labour Court’s judgment was appealable without leave to appeal (to be determined is thus whether the Labour Court sat as a court of appeal or as a court of first instance for the purpose of s 18(2) of the High Court Act 16 of 1990). The Supreme Court considered the matter and discussed the legal principles as follows:‘[30] In determining whether the Labour Court sat as a court of appeal in this instance, two criteria would in my view need to be met.[31] The first concerns the actual nature and characterisation of the proceedings before the court below and whether they are appellate in nature. The second concerns whether the phrase ‘as a court of appeal’ necessarily contemplates a court forming part of the judicial system or can also include appeals from other tribunals contemplated by Art 12 but not forming part of the judicial system.[32] ... What served before the Labour Court was a review brought in terms of s 89 of the Act. That section provides for both appeals and reviews from arbitration tribunals established under the Act…[33] The form of review contemplated by s 89(4) read with s 89(5) is narrow and confined to a defect in the arbitration proceedings as defined and is to be considered within the overall dispute resolution regime brought about by and envisaged by the Act. As is made clear by this Court in Swartbooi v Mbengela NO 2016 (1) NR 158 (SC) 163, the Act brought about far-reaching changes from a dispute resolution system embedded in the court structure to alternative dispute resolution through conciliation and, where necessary, arbitration by specialised arbitration tribunals under the auspices of the Labour Commissioner. The statutory intention was to bring about a speedy determination of disputes and to achieve finality in them as expeditiously as possible whilst doing so fairly and with a minimum of formality. In the context of this statutory intention, appeals are limited by s 89(1) to questions of law alone.[34] In keeping with this statutory intention, reviews of arbitration tribunal proceedings under s 89(4) are confined to defects in the arbitration proceedings as narrowly defined by s 89(5). These are misconduct on the part of the arbitrator, commission of a gross irregularity in conducting those proceedings, exceeding an arbitrator’s powers or an award being improperly obtained.[35] Those proceedings are very confined to establishing one or more of the defects as narrowly defined in s 89(5). That is the nature of the enquiry before the Labour Court on review – determining whether conduct on the part of the arbitrator or possibly participants amounts to a defect as defined and not considering or addressing the merits of the dispute in any way...[36] Having regard to the essential nature of the proceedings before the court below, the review under s 89(4) is in essence confined to the conduct of the arbitrator (or a party participating) and is not appellate in the real sense of that term...[37] It follows in my view that the court below did not sit as a court of appeal in the sense contemplated by s 18(2) of the High Court. The fact that the court below did not entirely confine itself to the enquiry to establish one of the defects contemplated by s 89(5) does not assist Mr Smith. The proceedings are to be viewed within their statutory confines.[38] There is a further reason why the proceedings in the court below were not sitting as a court of appeal. That is because those proceedings emanated from a tribunal which is not a court or part of the judicial system.[39] In National Credit Regulator v Lewis Stores (Pty) Ltd (NCR) 2020 (2) SA 390, Wallis JA in the South African Supreme Court of Appeal held the decision made on an appeal from an independent statutory tribunal to a High Court would not amount to a decision made ‘on appeal to it’ for the purpose of similar statutory provision in South Africa regulating appeals and the requirement of leave for them.[40] In his closely reasoned judgment, Wallis JA held that such a tribunal (in that case an appeal from the National Consumer Tribunal to the High Court) is not part of the judicial system and that the tribunal does not exercise judicial authority under that country’s constitution even though it is an independent and impartial tribunal whose role is adjudication…[41] Wallis JA proceeded to consider statutes other than the National Credit Act (which provided for the appeal in that matter) which also provided for appeals to the High Court from decisions of administrative officials or tribunals. He concluded that the provision in question (dealing with appeals in the Supreme Court Act) should be confined to applications for leave to appeal against decisions by the High Court given on appeal to it from other courts within the judicial system, that is from magistrates’ courts. In reaching this conclusion, Wallis JA referred to the fundamental differences between an appeal from a court and an appeal from a body outside the judicial system. [42] I agree with the approach articulated in NCR. Namibia’s legislation regulating the passage of appeals and when leave is required draws upon principles developed in the context of similarly worded South African legislation.[43] Article 78 of the Namibian Constitution, makes it clear that power is vested in the courts, comprising of this Court, the High Court and lower courts of Namibia. A statutory tribunal, such as that established by s 85 of the Act does not form part of the judicial system envisaged by the Constitution.[44] It would follow that appeals from arbitration tribunals established under the Act would likewise not amount to the Labour Court sitting as a court of appeal for the purpose of s 18(2)(b) of the High Court Act. A decision reached by the Labour Court in those circumstances would be as a court of first instance and not one on appeal for the purpose of s 18(2), even though this Court had previously accepted the position to be to the contrary but without the point ever being argued and determined.’It was therefore held that:a) In determining whether the Labour Court sat as a court of appeal in this instance, two criteria would need to be met. The first concerns the actual nature and characterisation of the proceedings before the court below and whether they are appellate in nature. The second concerns whether the phrase ‘as a court of appeal’ necessarily contemplates a court forming part of the judicial system or can also include appeals from other tribunals contemplated by Art 12 of the Constitution but not forming part of the judicial system.b) The court below did not sit as a court of appeal in the sense contemplated by s 18(2) of the High Court. The fact that the court below did not entirely confine itself to the enquiry to establish one of the defects contemplated by s 89(5) does not assist Mr Smith. The proceedings are to be viewed within their statutory confines.c) Appeals and reviews from arbitration tribunals established under the Act would likewise not amount to the Labour Court sitting as a court of appeal for the purpose of s 18(2)(b) of the High Court Act. A decision reached by the Labour Court in those circumstances would be as a court of first instance and not one on appeal for the purpose of s 18(2), even though this Court had previously accepted the position to be to the contrary but without the point ever being argued and determined. d) Section 18(2) is not applicable to proceedings where the Labour Court determines an application for review from an arbitration tribunal established under the Act. The Labour Court sat as a court of first instance and leave to appeal is thus not required under s 18(2) of the High Court Act.As a result, the appeal partially succeeded, and the Supreme Court made appropriate orders.* Visit https://consultfasz.com/ for more Concise Law Reports. 2023-08-18Correspondent
