2017-09-26Staff Report 2 Roland Routh Windhoek-Thirteen teachers of Kayec Trust in Windhoek that embarked on a strike for higher wages in July last year and were subsequently dismissed from their positions after the Labour Commissioner ruled that the strike was unlawful and therefore unprotected, have appealed the ruling in the High Court. Represented by Advocate Thabang Phatela on instruction of Metcalfe Attorneys, the 13 teachers and the Namibia National Teachers Union (NANTU) are asking Judge Boas Usiku to set aside the award of the Labour Commissioner that declared the strike illegal. The teachers were charged with misconduct and dismissed on February 13 this year. The union and the teachers contend that the Labour Commissioner erred when she deemed the strike illegal, as the workers apparently did not adhere to a requirement in the recognition agreement which states that either party must give five days’ notice before embarking on industrial action. According to Phatela, the Labour Commissioner only had to determine whether the teachers were in breach of the clause, whether the strike embarked upon on July 5, 2016 was illegal and/or unprotected, and whether Kayec was guilty of unfair labour practices. He further stated that the main question for determination was whether the strike that commenced on July 5, 2016 was illegal, which means regard must be had for the provisions of Section 74 of the Labour Act, which deals with the right to strike. The Labour Act makes provision for 48 hours’ notice before industrial action can commence. The teachers first went on strike from June 23 to 25, 2016 but withdrew that strike notice because of the 48-hour provision of the Labour Act and again issued a strike notice on June 28, 2016 of their intention to commence with strike action on July 5. This is where the arbitrator erred when she found that the withdrawal of the first strike notice had an impact on the validity of the certificate of unresolved dispute, Phatela argued. He said such a conclusion was not supported by law, because what “breathes life into the validity of the certificate of the unresolved dispute is the existence of the dispute, which remains unresolved. It is not whether a party decided to go on strike or not, that is relevant for the purposes of an unresolved dispute. “We submit that our contention is supported by the provisions of Section 82(17) of the Labour Act, which provides that up until the dispute (not the strike) is settled, the arbitrator remains seized with the matter. “We contend that the alignment of the validity of the certificate on the unresolved dispute to the strike action, dated 23 to 25 June 2016, is legally unsustainable,” Phatela stressed. He went on to say that in the determination of the matter the arbitrator had to first consider whether the certificate of unresolved dispute, dated April 26, 2016, was valid for the purposes of the strike that commenced on July 5 last year. “The arbitrator acknowledged that when a certificate of unresolved dispute is issued, it is valid until the dispute is resolved” Phatela told the judge. He further contended that the Labour Act does not place any limitations on the certificate of unresolved dispute and its continued validity is determined by one aspect only – the resolution of the dispute. He then asked the court to set aside the decision of the arbitrator. Kayec is opposing the appeal application and is represented by Advocate Ruben Philander. Judge Usiku said he will deliver his ruling on the application on December 12. 2017-09-26Staff Report 2
