Labour Case Review:

Written by Dr Marvin Awarab Senior Lecturer & Labour Law Expert

Telecom Namibia v Mandjolo (HC-MD-LAB-APPAAA-2022/00076) [2023] NALCMD 20 (12 May 2023)

This case involves an appeal against the decision taken by the arbitrator in favour of the appellant (Telecom Namibia). The appeal concerns the issue of unfair dismissal as found in section 33 of the Labour Act 11 of 2007 as amended.

Background

The first and second respondents were employed as Commercial Support Agents by the appellant, being stationed at the Rundu Teleshop. The two respondents were charged with misconduct relating to misuse of company money, for private purposes, attempting to bring the company name into disrepute and thirdly gross negligence or incompetence which was termed by the company as failure to adhere to or execute work-according to work standards or regulations or any action or failure to act, contrary to that of the reasonable employee with serious or potentially serious consequences of the company. It was alleged that the first and the second respondents misused the company money to the tune of N$ 1 732.00 and N$ 1 581.00. Evidence presented indicated that when the appellant’s clients made payment in respect of their accounts with the appellant, the respondents took the money by capturing it on the system. It is this non-capturing that could possibly have led to the suspension of the client’s accounts. In respect of the offence of bringing the company name into disrepute, it was alleged that the respondents suspended the accounts of customers despite the customers having paid their accounts. Based on these allegations, the respondents were subjected to a disciplinary hearing. At the end of the disciplinary hearing, the respondents were found guilty on all of the three charges and dismissed. Being dissatisfied with the outcome of the disciplinary hearing, the respondents appealed internally, and this appeal was dismissed as lacking merits.

The respondents referred a dispute of unfair dismissal to the Office of the Labour Commissioner for determination. At the end of the arbitration proceedings, the arbitrator found that the dismissal of the respondents was procedurally and substantively unfair and ordered the appellant to reinstate them in the positions which they held before dismissal. The appellant appealed against the decision of the arbitrator, requesting the labour court set aside such a decision and find the dismissal of the respondents procedurally and substantively fair. One of the grounds of the appeal related to procedural unfairness, is that the arbitrator incorrectly found that the chairperson of the disciplinary hearing was grossly irregular and not upholding the principles of procedural fairness. Furthermore, the appellant in its grounds of appeal indicated that the arbitrator found that the respondents were indeed guilty of transgressing the rule in terms of the workplace policy. The appellants were strongly of the view that the arbitrator erred when he ordered reinstatement and compensation, especially after finding that the respondents were guilty of misconduct, and dismissal was an appropriate sanction in terms of the appellant’s Policy.

During the appeal proceedings at the labour court, evidence was led that the Respondents at various occasions acted contrary to the Treasury Policy of the appellant. During the labour court proceedings, the evidence also indicated that a thorough investigation proceeding the disciplinary hearing was conducted. During these investigations both respondents admitted to have misappropriated the clients money for personal use.

In the respondent’s defense, it was alleged that the chairperson of the disciplinary hearing, through an intermediary, advised the second respondent to plead guilty to the charges. From a procedural point of view this is improper and hinges on procedural unfairness. Hence, the respondent was of the view that a correct procedure was not followed and therefore since the dismissal was procedurally unfair, the entire dismissal should be declared unfair. The arbitrator seemed to have agreed with this position and hence, ordering reinstatement. The labour court did not agree with the position taken by the arbitrator as far as procedural unfairness and the entire decision is concerned.

Fairness of dismissals in terms of the law

Before looking at the decision and reasons of the labour court, it is essential to revisit the principles surrounding unfair dismissal. Section 33 of the Labour Act, provides that all dismissals must be substantively and procedurally fair. Substantive fairness means that the employer must have a fair reason to dismiss an employee. Generally, misconduct is one of the reasons why the employer can dismiss an employee. Procedural fairness relates to following a fair procedure in exercising the right to dismiss an employee. Fair procedure involves aspects such as presenting the charges to the employee in advance of the hearing; advising the employee of his or her right of representation by a member of his or her trade union or a co-employee; the impartiality of the chairperson and the right of the employee to appeal against the decision. It is trite law that there can be no fair reason to dismiss an employee in the absence of a fair procedure. In other words, the employer must follow a fair procedure in finding a fair reason to dismiss an employee. This seems not to be the approach followed in the case.

Labour Court’s decision

The labour court emphasised the fair procedure to be followed in compliance with the principles of procedural fairness. The court agreed with the arbitrator that the chairperson of a disciplinary hearing should not bias and must be impartial at all times. The court found that although the appellant did not formulate any ground during its appeal in terms of substantive fairness, the arbitrator rightfully found that the applicant transgressed a workplace rule and used the appellant’s money for private purposes. The court further stated that it is procedurally unfair for a chairperson of a hearing to directly or indirectly persuade an accused employee into pleading guilty to an offence charged. According to the court, procedural unfairness is not the end of the inquiry as we still have not established substantive unfairness by showing that there is a fair and valid reason to dismiss an employee. This reasoning is correct, but one wonders without first properly following a fair procedure, will it be possible to find a valid and fair reason to dismiss an employee. The court applying various other similar past decisions found that even if procedural fairness has not been complied with, the dismissal will still be fair if the employer had the fair reason to dismiss.

Analysis

In terms of the first respondent, it is clear that both legs of fair dismissal, namely substantive fairness and procedural fairness, were met. However, in terms of the section respondent, there was an issue with procedural fairness as a result of alleged conduct of the chairperson of the disciplinary hearing. It was alleged that the chairperson through an intermediary requested the second respondent to plea guilty, which is a procedural irregularity. These allegations regarding procedural unfairness caused a break in the inquiry chain of dismissal fairness. If indeed the evidence suggests that a fair procedure was not followed, it is then difficult to comprehend that there was a fair reason to dismiss an employee. Arguably, a fair procedure must precede a finding that there is a valid and fair reason (i.e misconduct committed) to dismiss. Arguably, the court’s decision in somewhat finding that the dismissal of the second respondent to be valid and fair though there seemed to be some procedural hiccups could be found on the evidence in support of the commission of the misconduct. One is also hesitant to add that procedural fairness comprises many factors and the minute contribution of an aspect complaint of, to procedural fairness could lead to the courts as in this case to conclude that the procedural fairness requirement has substantially been complied with. Hence, the dismissal was found to be procedurally fair. The fair of this judgment is that chairpersons and the employee relations personnel may not approach procedural fairness with the importance it deserves.

Advise

The decision in this case must not be taken out of context and its principles must be quoted sparingly. It is always advisable to have regard to the legislative provisions of the Labour Act and see how the principles therein have been interpreted and applied by the courts. Though each case is to be decided on its own merits, it is essential that chairpersons of disciplinary hearings follow the correct procedure to avoid employers from drinking a bitter cup of losing out on huge sums of money as a result of the orders relating to compensation and reinstatement due to unfair dismissals. Chairpersons of disciplinary hearings and employee relations personnel administering disciplinary issues must approach issues of procedural fairness with utmost importance to prevent being accused of procedural unfairness.