Coca-Cola Namibia Bottling Company (Pty) Ltd v Nghiyoonanye

Written by Tutala Uushona

Gross Insolence is a common law act of misconduct which ordinarily – in the event of a guilty finding - carries a presumption of dismissal even as a first offence. As a common law offence, an employee may be charged with gross insolence whether such offence is listed under the employer’s code or not. Like gross insubordination, gross insolence is one of those charges that is often misused and proffered – inappropriately – as a charge in various circumstances. One such instance can be found in the matter of Coca-Cola Namibia Bottling Company (Pty) Ltd v Nghiyoonanye, the analysis of which forms the basis of this article. Central to this discussion, and the Judgement of Justice Parker, is the circumstances under which a charge of this magnitude may be deemed inappropriate and the impact such a finding may have on determining a labour dispute.

In this matter, the regional logistics manager of Coca-Cola Namibia Bottling Company (the appellant) overheard the first respondent speaking with colleagues. The first respondent stated that the COVID-19 pandemic was brought to Namibia by white people, and they should leave the country. Upon hearing this, the manager requested that the statement be repeated, which the first respondent did. The first respondent’s supervisor, having noted the comment may have offended the manager –who was white – directed the first respondent to apologize to the manager, which instruction was obliged. Nonetheless, this culminated in the charging of the first respondent with gross insolence and his subsequent dismissal, which dismissal was upheld by an internal appeals body. However, upon application to the Office of the Labour Commissioner and the institution of arbitration proceedings, the arbitrator found that the dismissal constituted an unfair dismissal in terms of section 33 (1) (a) of the Labour Act No. 11 of 2007.

The Appellant appealed the decision of the arbitrator, and the matter was placed before the Labour Court with Justice Parker presiding. Justice Parker defines the charge of gross insolence as;

“Insolence in the employment situation is based on the employee’s obligation to show common respect and good manners towards his or her employer. Insolence has been described as impudence, cheekiness, disrespect and rudeness. To constitute misconduct in an employment situation, it should be directed towards the employer. The ‘employer’ includes managing directors, managers and supervisors and such like officials who stand in authority over the employee in question.”

The principle considerations arising from the Labour Court appeal, are as follows; a) Was there an element of disrespect in the first respondent’s expression of the sentiments stated to his colleagues and subsequently to the manager? b) In the event the above is answered in the affirmative, was such statement geared towards the employer, its officials, or anyone in its employment?

From a reading of the arbitrator’s award, it is evident that the advancement of the apology from the first respondent to the manager was relied upon in amplification of the appellants case. Justice Parker expeditiously dispenses with this aspect in his judgment, by stating that the apology cannot be considered as an admission of guilt on the part of the first respondent. The reasoning for the conclusion, succinctly restated, is quite simply that the apology was tendered pursuant to a direct instruction from the first appellants direct supervisor. It was, essentially, simply a subordinate following an instruction.

Turning to the two questions stated above, Justice Parker in arriving at his judgment found that the first respondent had in no way acted disrespectfully and nor were his sentiments geared towards his employer or anyone in its employment and thus did not meet the threshold of warranting the charge of “gross insolence”. It is this writer’s observation that often when an employer anticipates a guilty finding (or strives for one) and subsequently a sanction of dismissal, they often place the term “gross” on any given charge without due consideration for what this entails. Gross insubordination, gross negligence and gross insolence are far too commonplace in labour disputes, despite the lack of a factual grounding to sustain the allegation. There must, as a consideration of material with probative value, be facts and evidence brought forward by the initiator during the initial disciplinary process up and through to the arbitration to sustain the same under Namibian law.

Taking into consideration the findings in the matter, at most the first respondent may be rightfully accused of failing to abide or aligning himself with the ethos of the company or its values, promoting discriminatory sentiments that may adversely impact the harmony and unity of the organisation and/or propagate incendiary views. However, none of these would constitute a dismissible offence. In fact, it is noteworthy to reiterate here that the objective of disciplinary proceedings should primarily be corrective and not punitive. In the circumstances, corrective action was certainly warranted. It is an employer’s responsibility to ensure that its employees understand its values and policy against discrimination and to inculcate such values therein. Take into account for a moment that the first respondent had been in the employment of the appellant for a period of 30 years, nearly as long as Namibia has had its independence. It is reasonable to presume that such an individual may not be sensitized as to the inflammatory nature or impact of such statements. Further when prompted to apologize, he did so without hesitation, noting his supervisors concerns as to the potentially offensive nature of the statements.

An additional note on this judgment is the discussion as to the alleged irretrievable breakdown of the employer-employee relationship and the reliance thereon to negate the reinstatement of the first respondent. Justice Parker in his analysis considered what was submitted on the LC 21 form before the Office of the Labour Commissioner where the first respondent in his summary clearly indicated that he was praying for reinstatement, and the arbitrator in his analysis of the evidence brought before him found it sufficient to reinstate the first respondent. This is a very important part of the award especially for a layman because the arbitrator in his powers as set out in terms of section 86 (15) of the Labour Act, 2011 (No. 11 of 2007) may order various awards and it is important to clearly indicate what would be considered as resolution to a dispute when referring a matter for arbitration.

Justice Parker in his analysis and application of labour law principles, redressed labour injustice in arriving at this judgement. It is this writer’s opinion that this judgement echoed the objective of the disciplinary process being corrective in so far as resolving labour matters.