Social Security Commission v Mutwa (LCA 56 of 2014) [2016] NALCMD 2 (18 January 2016)

Social Security Commission v Mutwa (LCA 56 of 2014) [2016] NALCMD 2 (18 January 2016)

The court held that the union representative was entitled to sign the referral on behalf of the employees, so Rules 5(2) and (3) did not apply; there was compliance with Rule 15 as the parties agreed to a shorter notice period; however, the arbitrator’s refusal to hear and consider the appellant’s rescission...

Source-derived case information.

Citation
[2016] NALCMD 2
Parties
Appellant: Erongo Marine Enterprises (Pty) Ltd; Respondents: Ipinge Petrus and 47 Others
Court
Labour Court Main Division
Jurisdiction
Namibia
Judgment Date
18 January 2016 7 October 2016 18 January 2016
Case Number
LCA 56 of 2014
Procedural Posture
Labour Appeal / Judgment on Appeal and Review of Arbitration Award
Outcome
Appeal partially allowed; arbitrator's decision not to hear rescission application set aside; matter remitted for hearing before a different arbitrator.
Legal Topics
Conciliation and Arbitration Procedure, Referral of Disputes, Union Representation, Notice of Hearing, Rescission of Arbitration Awards, Audi Alteram Partem, Fair Trial Rights
Source Language
english
Labour Law Administrative Law Constitutional Law Conciliation and Arbitration Procedure Referral of Disputes Union Representation Notice of Hearing Rescission of Arbitration Awards +2 more

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 11 Party arguments 2
Sign in to unlock

Parties

Erongo Marine Enterprises (Pty) Ltd

Appellant

Ipinge Petrus and 47 Others

Respondents

Procedural Posture

Labour Appeal / Judgment on Appeal and Review of Arbitration Award

Legal Issues

  1. 1 Whether the joint referral of the dispute complied with Rules 5, 11, and 14 of the Rules Relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner.
  2. 2 Whether the arbitrator complied with Rule 15 regarding notice of the arbitration hearing.
  3. 3 Whether the arbitrator's refusal to hear the appellant’s rescission application violated the appellant’s right to a fair trial under Article 12 of the Namibian Constitution.

Ratio Decidendi

The court held that the union representative was entitled to sign the referral on behalf of the employees, so Rules 5(2) and (3) did not apply; there was compliance with Rule 15 as the parties agreed to a shorter notice period; however, the arbitrator’s refusal to hear and consider the appellant’s rescission application constituted a violation of the appellant’s right to a fair hearing under Article 12(1)(a) of the Constitution, warranting the setting aside of the arbitrator’s decision and remittal of the matter for proper consideration by a different arbitrator.

Court Disposition

Appeal partially allowed; arbitrator's decision not to hear rescission application set aside; matter remitted for hearing before a different arbitrator.

Orders

  • The decision by arbitrator Ms. Gertrude Usiku not to hear and consider appellant’s application for rescission of the default award is set aside.
  • The matter is remitted to the Labour Commissioner for referral of the rescission application to an arbitrator other than Ms. Gertrude Usiku.