Heveleni and Another v Erongo Contract Services and Another (21 of 2016) [2017] NALCMD 17 (12 May 2017)

Heveleni and Another v Erongo Contract Services and Another (21 of 2016) [2017] NALCMD 17 (12 May 2017)

The respondent failed to comply with procedural rules for opposing the appeal and did not file a valid condonation application; the arbitrator erred in finding the dismissal procedurally and substantively fair as the respondent did not rebut the presumption of unfair dismissal, failed to prove the charges on a balance of probabilities, and acted inconsistently in disciplining employees. The appeal was therefore upheld, the arbitration award set aside, and the appellants ordered to be reinstated with back pay.

Citation
[2017] NALCMD 17
Parties
Appellant: Leonard Heveleni; Appellant: Dale Kasuto; Respondent: Erongo Contract Services; Respondent: The Labour Commissioner
Court
Labour Court Main Division
Jurisdiction
Namibia
Judgment Date
12 May 2017
Case Number
21 of 2016
Procedural Posture
Labour Appeal / Judgment on Appeal
Outcome
Appeal upheld; arbitration award set aside; reinstatement and back pay ordered; no order as to costs.
Legal Topics
Unfair Dismissal, Procedural Fairness, Substantive Fairness, Condonation, Arbitration Award, Reinstatement, Compensation
Source Language
English
Labour Law Unfair Dismissal Procedural Fairness Substantive Fairness Condonation Arbitration Award Reinstatement Compensation

Case Brief

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Parties

Leonard Heveleni

Appellant

Dale Kasuto

Appellant

Erongo Contract Services

Respondent

The Labour Commissioner

Respondent

Procedural Posture

Labour Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the dismissal of the appellants was procedurally and substantively fair
  2. 2 Whether the arbitrator erred in her findings
  3. 3 Whether the respondent complied with procedural rules for opposing the appeal

Ratio Decidendi

The respondent failed to comply with procedural rules for opposing the appeal and did not file a valid condonation application; the arbitrator erred in finding the dismissal procedurally and substantively fair as the respondent did not rebut the presumption of unfair dismissal, failed to prove the charges on a balance of probabilities, and acted inconsistently in disciplining employees. The appeal was therefore upheld, the arbitration award set aside, and the appellants ordered to be reinstated with back pay.

Court Disposition

Appeal upheld; arbitration award set aside; reinstatement and back pay ordered; no order as to costs.

Orders

  • The appeal is treated as unopposed and upheld in respect of all grounds of appeal (excluding 2.2, 2.11 and 2.12).
  • The arbitration award of 12 March 2016 is set aside.