Kahoro and Another v Namibia Breweries Limited (SA 6 of 2006) [2008] NASC 5 (30 April 2008)

Kahoro and Another v Namibia Breweries Limited (SA 6 of 2006) [2008] NASC 5 (30 April 2008)

The Supreme Court held that the employer failed to prove a valid and fair reason for the appellants' dismissal because the assessment process was tainted by bias due to the participation of a manager with animosity towards the appellants, and the adverse findings were not disclosed to them for comment. The procedural unfairness was so intertwined with the substantive reason for dismissal that the employer did not discharge its onus. The dismissals were therefore unlawful.

Citation
[2008] NASC 5
Parties
First Appellant: Victor Kahoro; Second Appellant: Willem Kaeka; Respondent: Namibia Breweries Limited
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
30 April 2008
Case Number
SA 6 of 2006
Procedural Posture
Labour Appeal / Supreme Court Appeal Judgment
Outcome
Appeal allowed
Legal Topics
Unfair Dismissal, Retrenchment, Procedural Fairness, Substantive Fairness, Bias in Employment Decisions, Remedies for Unlawful Dismissal
Source Language
English
Labour Law Employment Law Unfair Dismissal Retrenchment Procedural Fairness Substantive Fairness Bias in Employment Decisions Remedies for Unlawful Dismissal

Case Brief

Summary, issues, holding and outcome

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Parties

Victor Kahoro

First Appellant

Willem Kaeka

Second Appellant

Namibia Breweries Limited

Respondent

Procedural Posture

Labour Appeal / Supreme Court Appeal Judgment

Legal Issues

  1. 1 Whether the dismissal of the appellants was procedurally and substantively fair under the Labour Act, 1992
  2. 2 Whether the participation of a biased manager in the assessment panel invalidated the dismissal process
  3. 3 Whether the appellants were entitled to remedies for unfair dismissal

Ratio Decidendi

The Supreme Court held that the employer failed to prove a valid and fair reason for the appellants' dismissal because the assessment process was tainted by bias due to the participation of a manager with animosity towards the appellants, and the adverse findings were not disclosed to them for comment. The procedural unfairness was so intertwined with the substantive reason for dismissal that the employer did not discharge its onus. The dismissals were therefore unlawful.

Court Disposition

Appeal allowed

Orders

  • The appeal is allowed with costs, including costs for one instructing and one instructed counsel.
  • The order of the Labour Court dismissing the appellants’ appeal is set aside.