Labour Chain Namibia (Pty) Ltd v Hambata (14 of 2010) [2012] NALC 2 (3 February 2012)

Labour Chain Namibia (Pty) Ltd v Hambata (14 of 2010) [2012] NALC 2 (3 February 2012)

The addendum to the employment contract did not constitute a valid agreement to private arbitration under s 91 of the Labour Act as it was signed before any dispute arose. The arbitrator misapplied the legal test for constructive dismissal by placing the burden of proof on the employer rather than the employee. The respondent failed to establish constructive dismissal on the facts. Procedural irregularities also occurred during arbitration. The arbitral award was set aside.

Citation
[2012] NALC 2
Parties
Appellant: Labour Supply Chain Namibia (Pty) Ltd; Respondent: Ndapewa Hambata
Court
Labour Court
Jurisdiction
Namibia
Judgment Date
3 February 2012
Case Number
14 of 2010
Procedural Posture
Labour Court Appeal / Judgment on Appeal Against Arbitral Award
Outcome
Appeal allowed; arbitral award set aside.
Legal Topics
Jurisdiction of Arbitrator, Private Arbitration Agreements, Constructive Dismissal, Burden of Proof in Constructive Dismissal, Procedural Irregularities in Arbitration
Source Language
English
Labour Law Jurisdiction of Arbitrator Private Arbitration Agreements Constructive Dismissal Burden of Proof in Constructive Dismissal Procedural Irregularities in Arbitration

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Parties

Labour Supply Chain Namibia (Pty) Ltd

Appellant

Ndapewa Hambata

Respondent

Procedural Posture

Labour Court Appeal / Judgment on Appeal Against Arbitral Award

Legal Issues

  1. 1 Whether an addendum to the employment contract constituted a valid agreement to private arbitration under s 91 of the Labour Act, 11 of 2007
  2. 2 Whether the arbitrator applied the correct legal test for constructive dismissal
  3. 3 Whether procedural irregularities occurred during arbitration

Ratio Decidendi

The addendum to the employment contract did not constitute a valid agreement to private arbitration under s 91 of the Labour Act as it was signed before any dispute arose. The arbitrator misapplied the legal test for constructive dismissal by placing the burden of proof on the employer rather than the employee. The respondent failed to establish constructive dismissal on the facts. Procedural irregularities also occurred during arbitration. The arbitral award was set aside.

Court Disposition

Appeal allowed; arbitral award set aside.

Orders

  • The award of the arbitrator dated 1 November 2010 is hereby set aside.