DETAILS OF HEARING AND REPRESENTATION
[1] Two disputes emanating from similar set of facts, namely, unfair labour
practice and unfair dismissal were referred to the Labour Commissioner
pursuant to section 86 of the Labour Act. The parties hereto are Mvula Nikanor
Stephanus (hereinafter referred to as the applicant) and Namib Foam
(hereinafter referred to as the respondent). The arbitration proceedings took
place on the 7th February 2011, the 16th February 2011 and were concluded on
the 7th March 2011 at the Office of the Labour Commissioner, Windhoek.
[2] The applicant was represented by Mr. Moses Shiikwa, an official of the
National Union of Namibian Workers (NUNW), while the respondent was
represented by Dr. Johan Van Rooyen in his capacity as an office bearer of the
Namibian Employers Federation (NEF) of which the respondent is a paid up
member. The proceedings were conducted in English and translated into
Oshiwambo and vice versa by Mr. Martin Itewa, a freelance interpreter. The
applicant testified on his own and did not call any witness, while the
respondent called six (6) witnesses to testify in its case.
ISSUE FOR DETERMINATION
[3] It is expected of me to decide as to whether applicant’s dismissal was for a
valid and fair reason and in accordance with fair procedure, if not the
appropriate relief thereof.
BACKGROUND TO THE DISPUTE
[4] The respondent herein is a company which owns a manufacturing plant
situated at Northern Industrial Area, Windhoek where applicant was employed
for the past twelve years before his dismissal on the 12 June 2009, following a
disciplinary hearing. The events that led to applicant’s dismissal are briefly
summarized here. On Friday 22 May 2009, applicant went on compassionate
leave due to the death of his brother.
[5] The next day, being the 23 May 2009, applicant returned to the factory at
about 16h45. While at the factory, an argument erupted between him and the
Production Manager, one Fillemon Chrisoph over his presence at the factory
without permission to enter the premises and as a result certain words were
exchanged between the duo, where the applicant had allegedly threatened to
kill the said Production Manager.
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[6] In addition to hurling derogatory remarks towards the Production Manager,
applicant was allegedly under the influence of intoxicating liquor, which fact
was gleaned from his demeanour on the factory premises that day. Applicant
denies this version, and his story is that he had simply gone to the factory to
fetch his asthma pump which he had left in the pocket of his uniform gear, in
the dressing room. He denies ever having been drunk during that period nor
having threatened to kill the said Production Manager. In a disciplinary hearing
that ensued, applicant was found guilty as charged and subsequently
dismissed. It is this dismissal which he now challenges on the ground that it
was not both substantively and procedurally fair.
APPLICANT’S OPENING STATEMENT
[7] Mr. Shiikwa stated on behalf of the applicant that they referred cases of
unfair labour practice as well as unfair dismissal, which are all clear cut cases.
He stated that at the disciplinary hearing that preceded applicant’s dismissal,
applicant was charged with threat of assault and being under the influence of
alcohol or drugs at work. He added that if regard is to be had to these charges,
it is clear that there was unfair labour practice on the part of the employer.
[8] He stated that the procedures in disciplining the applicant were not
followed. He stated further that the reasons why he says the procedures were
not followed is that during the disciplinary inquiry they did request from the
respondent the Company Policy on Disciplinary Procedure as well as the
Company Policy on Grievance Procedure, but the respondent could not provide
them with the above documents and instead it only sent them the list of
offences which indicates the appropriate sanctions for each listed offence.
[9] He stated that as a result, he wrote a letter to the respondent on 13 July
2009 requesting the respondent to send them a copy of the Company Policy
but to no avail and thereafter when he made a follow up he got another
document which was totally in disarray and hence he believes that on that
basis the case was both procedurally and substantively unfair. He stated that
the relief that applicant was seeking is one of reinstatement with full benefits
from the date of dismissal.
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RESPONDENT’S OPENING STATEMENT
[10] Dr. Van Rooyen for the respondent stated that the matter before the
tribunal had its origin in the incident involving the applicant, who is a former
employee and a shop steward as at the time of his dismissal. He stated that the
incident took place at the respondent’s premises in Northern Industrial Area on
Saturday, 23 May 2009.
[11] He stated further that the respondent would lead evidence to the effect
that applicant entered the premises on the date in question unannounced and
without permission, shortly before closing time. He added further that
applicant was not supposed to be on duty that time because he had just come
from a funeral and was thus very intoxicated. He stated that applicant entered
the factory while production was still in full swing, tempering with various
machines and questioning workers on duty as to whether they would be paid
overtime.
[12] He stated further on behalf of the respondent that the Manager on duty, a
certain Fillemon Christoph requested him to leave but he nevertheless insisted
that he wanted to speak to the Manager. He added that thereafter, they went to
the office whereupon applicant threatened to kill the said manager by uttering
words in his vernacular (Oshiwambo) to that effect.
[13] He stated that the incident was fully investigated and it was decided to
charge the applicant with the charges as stated by the applicant’s
representative. He stated further that applicant was non-cooperative during the
investigation stage because he had also refused to give a written account of
what transpired.
[14] He stated that a fully procedural hearing, chaired by an independent
chairperson was held and applicant was represented by three union officials
from Metal & Allied Namibian Workers Union (MANWU) to which applicant
belongs. He stated that at that hearing he denied both charges on the ground
that he was at the funeral and when he realized that he did not have his
asthma pump with, he had decided to go home to look for it but when he went
home, he could not find it and he then decided to go his employer’s premises to
see whether it was there.
[15] He stated that the issue of the asthma pump cropped up for the first time
only during the disciplinary hearing and was thus not mentioned even in the
statement made earlier on.
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[16] He stated further that applicant was subsequently found guilty on the
balance of probabilities and before a sanction was meted out, he was duly
afforded an opportunity to give mitigating factors which he did in writing. He
stated that in that statement, his representative prayed for a written warning
coupled with counseling by MANWU. He stated that the company viewed the
incident in a serious light and hence the mitigating factors were outweighed by
the aggravating factors.
[17] He stated that the applicant’s dismissal was hence effected in accordance
with a valid reason and fair procedures in terms of the Labour Act. He also
stated the continuation of the employment relationship was not feasible and
the re-employment of the applicant cannot be contemplated.
[18] In addition, he also referred to an incident that occurred prior to the
instant arbitration hearing in which some of its witnesses who had testified
during the initial disciplinary hearing and the first arbitration hearing which
was annulled were threatened by the applicant that should they testify again,
something will happen to them.
APPLICANT’S EVIDENCE
[19] Mr. Mvula Nikanor Stephanus stated under oath that on the 23rd May
2009 he had attended a burial for his late brother, where he did overnight from
the previous night. He stated that while there, he noticed that he did not carry
with him his asthma pump, but since he has a sister who is also an asthma
patient, he had hoped to be assisted by her with an asthma pump.
[20] He stated that after the funeral, he decided to go home in order to look for
his asthma pump because he was under the impression that he had left it at
home. He stated that upon arrival at there, he checked in the pockets of the
trouser that he wore on Friday the 22 May 2009, but could not trace it there.
[21] He testified that it was there and then that he decided to go and check at
his work premises because he had also left it there in some other occasion in
the past. He stated that it was a bit late but since he knew that his colleagues
were working that day, he decided to rush there in order to get his asthma
pump, and approximately at 16h45 he arrived at his employer’s premises,
where he had met a Security Guard at the gate.
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[22] He stated that he greeted the Security Guard, whereafter he was granted
permission to enter the respondent’s premises as usual. He stated further that
he went through the main entrance, and somewhere inside the premises at
another gate which is situated on the premises, he met Mr. Philemon
Christoph. He stated that he greeted him, whereafter Mr. Philemon aggressively
blocked him and asked him as to what he was looking for at work that time,
and he replied to him that “do you want us to kill one another at work”(sic)
(loosely translated from the applicant’s words in Oshiwambo “owa hala tu
idhipageleni miilonga?”) because I am merely looking for my asthma pump.
[23] He stated that although he was blocked from entering, he nevertheless
succeeded to pass through the entrance and from there he went straight to the
room where chemicals are kept (the changing room) in order to look for his
pump. He stated that he checked in his uniform’s pockets and he found his
pump there. He stated that after tracing his asthma pump, Mr. Christoph
called him to the office where he showed him the pump and said to him “I came
to fetch the asthma pump, do you want us to kill one another at work? (sic)”
[24] He stated that while they were there, a certain co-employee by the name of
John Kamati came in the office too. He stated that the said John found him
sitting on the bench chair inside the office and he told John that he just came
in to get his asthma pump, whereafter he proceeded to the gate and he told the
Security Guard at the gate that he had found the asthma pump that he had
come to look for.
[25] He stated further that while outside, he noticed that it was knock off time
for all his colleagues so he decided to take a hike with his colleagues so he
waited for the truck outside the premises. He stated that at the time there were
three employees who are suffering from asthma and oftentimes they assisted
one another with the asthma pump.
[26] Applicant further denied being under the influence of intoxicating liquor,
adding that he possibly smelt of a scent which is attributed to the fact that he
had sat around the fire the previous night and even when he came to work he
did not change his clothes nor take shower. He testified that in the absence of
any proof that he was drunk, the respondent cannot accuse him of having been
drunk.
[27] He stated that at the time of his dismissal he was employed as a Machine
Operator, earning a salary of N$ 3300, being the average salary and was
dismissed on the 2nd August 2009 after thirteen years of employment.
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[28] He stated that he consider his dismissal unfair for a number of reasons,
including the fact that he was not afforded a right to say anything during the
disciplinary hearing.
[29] He stated further that he wanted to be reinstated because he sustained
injury on duty while working for the respondent and hence will not get work
anywhere, given that he uses only one limb. He stated that he is now 37 years
old. He stated that he has never tried to secure alternative employment
because he has only one limb which is effective and no one would hire him
with such disability.
[30] Under cross-examination, he was asked as to why he did not to give a
statement during the investigation stage and he replied that after suspension
he handed the case to his union representatives and in any event he was never
asked to give a statement by the respondent. It was also put further to him
whether he was a shop steward at the time and whether he took his duties as a
shop steward seriously, to which he replied in the affirmative.
[31] He was also further asked as to whether he did make inquiries regarding
whether his union members were paid overtime correctly and he replied that
the issue of overtime has been there around year 2000, but as at the time of
the incident the issue has long been resolved. He was also asked as to whether
on the date of the incident he did speak to the other employees and his reply
was that he only spoke to the Security Guard, Mr. Philemon and John Kamati
whom he met on the premises and not to other employees who were on duty at
the time.
[32] He denied having ever moved around the factory in order to speak to other
employees regarding overtime. He was asked as to when the funeral took place
because he has been on compassionate leave since Friday 22 May 2009 and he
replied that the burial itself was on Saturday 23 May 2009.
[33] He was also asked as to why he did not speak about the asthma pump on
the 23 May 2009 and he replied that everyone including his supervisors knew
that he had asthma and there was no other reason for him to go back to work
other than to fetch his asthma pump. He was also asked as to whether he does
drink alcohol, to which he replied that he does drink but occasionally. He
added that on the date in question however, he did not drink because he was
mourning his late brother.
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[34] It was further put to him that on the date in question he was heavily
drunk and as a result he nearly fell on the table while in the office of the
Manager, and he denied ever having been drunk or having taken offence
against the Manager inside the factory. He was further asked as to the context
in which he used the word “kill” and he replied that he was referring to the fact
that he would die if he did not have his asthma pump with and never intended
to threaten anyone.
[35] He was further asked as to why he entered the premises without asking for
permission given that he was not on duty and he replied that having been an
employee of the respondent for the past thirteen years, he was not aware of any
policy which requires employees to ask for permission to enter the premises
whenever they are not on duty.
RESPONDENT’S EVIDENCE
First witness
[36] Amanda Ntoni – the Human Resources Manager of the respondent based
in South Africa, testified that she was approached by the applicant’s
representative to provide him with a copy of the Disciplinary Code of the
respondent, whereafter she then sent him a copy of the Disciplinary Code with
a list of offences. She stated further that after that the union again approached
her for a copy of the Company Policy with detailed information on the grievance
procedure.
[37] She stated that the respondent’s Policy is contained in a bundle of
documents comprising of policies and procedures and the annexure is a
separate bundle with own set of numbers. She stated that she extracted the
policies and procedures out of Policy Procedure Manual and the annexure out
of the annexure bundle.
[38] She stated further that for this reason, the numbers of the documents
extracted from the Policy Procedure Manual will not match with those extracted
from the annexure bundle in terms of numbering. She stated that she did not
alter anything therefore, and she just gave them the documents as they were.
[39] She stated further that she has been involved in the induction of all the
respondent employees, including the applicant on health and safety matters
and industrial disciplinary procedures and she submitted proof to this effect.
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[40] She also stated that applicant was inducted as to the prohibition on the
use of alcohol and substance abuse on work premises. She stated that the
offences that applicant was charged with were dismissible offences because the
respondent, being a manufacturing company, operates heavy machinery in its
factory thus being under the influence of alcohol places an employee at great
risk. She stated that the company has a zero tolerance for alcohol use or
intoxication on its premises because it is its duty to ensure that the employees
are safe while on duty.
[41] She stated further
employees, it is also a
tolerate. She stated that
was at the time a shop
other co-employees.
that with regard to the use of threats against other
serious transgression which the respondent cannot
the reason why applicant was dismissed is because he
steward and hence was expected to be exemplary to
[42] She stated further that the other reason was that evidence was led during
the disciplinary hearing that applicant had violated a rule and did not have any
witnesses to substantiate his version that he went to fetch his asthma pump.
She stated that another reason why he was dismissed is that the trust
relationship had also broken down. She added that based on the severity of the
matter, it was not feasible for the respondent to issue a written warning to the
applicant.
[43] Under cross examination she was asked as to whether the Company Policy
document was available to every employee in the company and she replied that
it was given to the employees in a form of the employees’ booklet, which is
given to all employees. She explained that the employees’ booklet contains the
information in the Company Policy in a simplified manner.
[44] She was further asked as to why they were using different documents, one
from Vita Foam, Steinhoff Africa and Namib Foam and she explained that Vita
Foam and Namib Foam are subsidiaries of Steinhoff Africa holdings, which is
the holding company and all subsidiaries follow the policies of Steinhoff Africa.
[45] She was further asked as to which Company Policy did they apply when
they charged applicant and she replied that they used the Policy & Procedure
Manual for Steinhoff Africa holdings that apply to all its subsidiaries but since
it covers a range of issues she only extracted from it those parts that were
relevant to the charges that applicant was facing.
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Second witness
[46] Mr. Roland Zirzouw testified that he was the chairperson of the
disciplinary hearing. He stated that at the time of the hearing he did not know
any of the parties and he met them for the first time when the disciplinary
inquiry started.
[47] He stated that the procedure that he usually followed whenever he is given
a task to preside over a disciplinary inquiry is to ensure that all basic
requirements are complied with, which include inter alia, the notice to appear
before a disciplinary enquiry, timeous receipt of the notice, whether the
accused had ample time to prepare, whether the he had been informed of his
right to legal representation, whether he understands the charges against him
and that he had the right to call witnesses, including the right to appeal.
[48] He stated that he applied the same procedure when he presided over the
disciplinary hearing of the applicant. He was referred to a bundle of documents
containing the relevant documents that were used during the hearing and he
confirmed them being the documents which he had used during the said
inquiry.
[49] He stated that during the disciplinary hearing two main witnesses were
called by the respondent while the applicant called one witness whose version
on what transpired was vague. He stated that the evidence adduced during the
disciplinary hearing was to the effect that applicant had gone to work while off
duty.
[50] He stated that he heard further that thereafter, he approached one of his
co-employees to ask as to whether his union members were paid overtime, at
which stage applicant fell over a table or chair in the office of the Production
Manager. He stated further that he also heard during the disciplinary inquiry
that applicant was under the influence of liquor at the time he had come to
work.
[51] He stated that during the enquiry applicant was represented by about
three representatives from his union, and applicant also testified where he
stated that he had gone to the work premises only to fetch his asthma pump.
He stated that after weighing all the evidence before him he was satisfied that
applicant was guilty of these offences and hence he recommended his
dismissal.
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[52] Under cross examination he was asked as to what was the time frame
within which an employee must receive the notice of disciplinary inquiry in
terms of the Company Policy and his reply was that he would have granted an
extension to allow more time for preparation if any objection was noted prior to
commencing with the hearing, but in the instant case no objection was ever
made.
[53] He was further asked as to why he did not include the version of the other
witness who came to testify on behalf of the applicant during the disciplinary
enquiry and he replied that he did include that witness’s evidence because his
evidence was vague and irrelevant.
Third witness
[54] Mr. John Kamati, a former employee of the respondent testified that on
the 23rd May 2009, at about 16h50 a certain colleague of his by the name of
Philemon Christoph came to him at the office and he told him that the
applicant was on the factory premises but, he Mr. Christoph, did not know
what applicant was doing there.
[55] He stated that Philemon further told him that when he asked the applicant
as to what he was doing there, applicant told him that he came to check on his
union members whether they were paid overtime. He added further that at that
stage he had not seen the applicant as he was in the office while the applicant
was inside the factory.
[56] He stated that thereafter, he went outside to check on the production
progress as it was about knock off time and when he returned back from the
factory he found applicant in the office with Mr. Philemon. He stated that when
he arrived back he just sat, and he observed the conversation between the
applicant and Mr. Philemon. He stated that at one stage, applicant pointed a
finger towards Mr. Philemon, telling him that he will kill him and the position
that he held in the company was not his forever.
[57] He stated that applicant added that Mr. Philemon had no right to prevent
him from entering the company premises because even the owner of the
company would not ordinarily do that. He stated that thereafter Philemon took
the phone to call Mr. Naas Fourie to tell him that the applicant was on the
factory premises.
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[58] He added that after this, Mr. Philemon left the office to go call a certain
Ilona who was also a shop steward to come and listen to what applicant was
saying, and he had left him with the applicant in the office.
[59] He stated further that he observed that applicant did not appear to be
normal, but when Philemon came back he found him outside saying that he
wanted to go home with the company’s transport. He added further that the
reason why he said that he was not normal was inherent in his lack of speech
coordination, he was speaking loud, sitting on a drum and he was a bit
unsteady. He stated that applicant was aggressive and even when he boarded
the truck which carried them to the location he was talking, with his legs
stretched along the bench on which employees sat in the truck, virtually until
he was dropped off.
[60] He stated that the word “kill” was used more than once, first in the office
and on board a truck which was transporting them to the location where he
was dropped off. He stated that on that day applicant was not supposed to
work because he was on compassionate leave. He added that all other
employees in the factory were a bit scared of applicant because he did not look
normal that particular day.
[61] He testified that some of the witnesses who had testified during the initial
arbitration hearing were not willing to testify any longer because at the meeting
that was convened prior to the instant hearing at the respondent premises,
they indicated that applicant had apparently threatened them that they would
suffer the consequences should they again testify against him.
[62] Under cross examination the witness was asked as to whether he had any
grudge against applicant during the time that he had worked with the
applicant and his reply was to the effect that the only person with whom
applicant had problems was Mr. Philemon.
[63] He was asked as to whether he had seen applicant when he entered the
factory, and he stated that he had only heard from Mr. Philemon that applicant
was in the factory. He was also asked as to what Mr. Philemon’s said to the
applicant which prompted him to say that he would kill him and his reply was
that Mr. Philemon told applicant that he was drunk and that he must go home,
whereafter applicant got infuriated and that is when he said that he will kill
Mr. Philemon.
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[64] He was asked further as to what was the reason why the other employees
did not want to testify any longer and his reply was that the real reason was
that the other employees were scared of being called puppets by fellow workers
and this has had a great impact on the relationship between them and the coworkers and hence they did not want to get involved in this matter any longer.
[65] Under cross examination he also stated that the other employees did not
have any problem with the applicant, the only person who had a problem with
the applicant was Mr. Philemon, which problem has been there prior to the
incident.
[66] During re-examination he stated that although applicant was a bit
abnormal, one could not really say whether he was drunk in the absence of
him being not tested for alcohol, but his behavior was attributable to someone
who was drunk. He stated that at the time when he was told by Philemon that
applicant was on the company premises there was no other person present
save for him and Mr. Philemon. He stated that he did not observe any other
thing other than what he had testified.
[67] With regard to the question whether it was a prerequisite for any employee
to obtain permission to enter the premises of the factory when he or she is off
duty he replied that it was not a requirement per se, especially from Monday to
Friday, but at least permission was required during the weekends or after
hours.
[68] He testified further that other than this, the security guard who is at the
entrance gate could also grant permission to enter the premises. On whether
applicant spoke to other persons on the factory he stated that he was not
aware of this fact because he had only seen him in the office as well as at the
time when he was leaving the factory. On whether he was aware of the
employees on the factory who were suffering from asthma he replied that he
did not know whether applicant was an asthma patient nor did he now any
other employee who was suffering from asthma at the time.
Fourth witness
[69] Mr. Abiud Kaaheke a supervisor at Namib Foam testified that he could
not remember anything about a hearing in which he was called to testify and
that was that it was his first time that he was called to testify pertaining to this
matter.
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[70] He added that he could also not remember of a hearing that took place at
Namib Foam as it has been a long time now. He stated that he did not play any
role in that hearing whatsoever.
[71] As a result of this response, a digital recording of the disciplinary enquiry
was replayed so that applicant could listen to it to confirm whether he was able
to recognize the voice of the person who testified during the disciplinary
hearing. After listening to the audio recording, the witness confirmed that the
voice of the person who testified was indeed him.
[72] Under cross examination applicant was asked as to who called him to
testify that day and his reply was that he did not per se know who called him
to testify that day. It was further the witness’s testimony that he could not
remember as to who asked him questions during the hearing.
Fifth witness
[73] Philemon Christof, who is employed as Production Manager at the
respondent’s factory testified that on the 23rd May 2009, being a Saturday, him
and some employees were performing overtime duties when applicant entered
the factory premises at the time when people were about to knock off, saying
that he came to check whether his union members were paid overtime.
[74] He stated that from there he went back to the office and later he found
applicant next to the crushing machine, where he then said to him that he
wanted to speak to him. He stated that after that he left to go to the office to
wait for him, but he did not pitch as promised, so from there he went back to
the factory to monitor the production progress as usual.
[75] He stated that upon return from the factory, he found applicant sitting
next to a Tape Edge Machine where he then stated that he wanted to speak to
him. He stated that from there, they went to the office where he entered and he
said to him just sit and wait for John Kamati to come so that you could
proceed with your story. He stated that when Kamati came in he said to him
that “I will kill you and the position you are holding was not yours forever”. He
further added that applicant appeared drunk although he did not test him.
[76] It was the witness’s further testimony that from there, he called Mr. Naas
Fourie who in turn instructed him to call Ilona, but before Ilona could arrive,
applicant had already left and hence Ilona never saw the applicant that day.
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[77] He stated that applicant appeared drunk because he nearly fell on his
desk, and he was constantly moving around. He stated that applicant was
aggressive and he was gesturing in a bad manner. He added further that when
applicant uttered threatening words towards him he became very scared of the
applicant.
[78] He stated that there was no way he could have confirmed whether
applicant was drunk because the factory does not have a breathalyzer so as to
enable it to test the alcohol breath of the applicant. He stated further that he
could not understand as to why applicant was angry with him that particular
day.
[79] He corroborated other witnesses’ evidence with regard to the issue of
purported threats made against several witnesses who had testified during the
disciplinary inquiry. He testified that the issue of asthma pump was never
mentioned anywhere that particular day, except when he said it for the first
time during the disciplinary hearing. He stated that applicant walked around in
the factory that particular day, without any permission to do so.
[80] Under cross examination, the witness was asked as to how he knew
applicant and he stated that he is the one who had organized employment for
the applicant 13 years ago because he had known him through his brother who
is married to his sister.
[81] He also stated that there was an incident whereby applicant had insulted
him and as a result he had to involve his elders to get involved in order to solve
their problem amicably in a traditional way. He stated that applicant was in a
way like his brother and that was the reason why he had asked his sister to
speak to applicant’s mother in order to resolve the issue amicably.
[82] He was asked as to whether there was a policy which prohibits employees
from entering the work premises during off hours and he stated that there was
but was unable to establish where it is precisely so stated. Asked with
reference to the Company Policy of the respondent, he conceded that it was not
stated anywhere that employees may not enter the premises during off hours.
Asked as to whether applicant was an asthma patient he stated that applicant
did not have asthma at all. Upon further questioning, he stated that he did not
know whether applicant was an asthma sufferer because he had never told him
so.
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[83] He stated that at the time that applicant uttered the word “kill” towards
him he did not have any dangerous object in his hand, nor did he push him,
but he was relatively closer to him. He also stated that he did not know
whether applicant was an asthma sufferer simply because he was not in a
position to know of the employees illnesses.
Sixth witness
[84] Mr. Naas Fourie, a Factory Manager at Namib Foam stated that he had
played a role of an initiator at the disciplinary hearing which was held during
June 2009. He stated that during that disciplinary hearing the respondent
called two witnesses; Messrs. Kamati and Philemon. He stated that applicant
had also called a witness by the name of Abiud.
[85] With regard to the incident which occurred on the 23rd May 2009, he
stated that although he was not on duty that particular day, he was aware of
the incident. He testified that in terms of the Company Policy, a person who
was not on duty was not permitted to enter the factory premises save with
consent from the person in charge because they are working with heavy
machinery so that in the event that something happens they would know all
the persons inside the factory.
[86] He testified further that on the date in question, he was contacted by Mr.
Philemon about quarter to five (i.e. 16h45), saying that the applicant was on
the premises asking whether his members were paid overtime. His version
corroborated that of Mr. John Kamati and Christof Philemon with regard to
what happened at the factory that day.
[87] He testified further that as a result of the incident, investigations were
conducted which eventually led to the disciplinary hearing of the applicant. He
added that during the investigation stage statements of witnesses were taken
shortly after the incident. He stated that in the disciplinary hearing applicant
was charged with the offences of assault by threat and being under the
influence of alcohol on the factory premises, of which he was accordingly found
guilty and subsequently dismissed. He stated that the offences for which
applicant was convicted were of a serious nature, especially given the nature of
the operations of the company, and in any event, in terms of the Company
Disciplinary code both offences were dismissible offences.
15
[88] Under cross examination he was asked as to why he believed that the
disciplinary hearing was fair and he stated that in his view the Company Policy
was followed and the case was presided over by an external neutral person.
CLOSING ARGUMENTS
Applicant’s closing arguments
[89] Applicant’s representative submitted written head of arguments, and his
central submission is summarized here. Mr. Shiikwa submitted that proper
disciplinary procedures were not followed as there were at least four
documents used purporting to be the Company’s Disciplinary Code namely,
Namib Foam, Vitafoam, Steinhoff Africa Holding, Namib Foam Employee
information Booklet
[90] He contended that on the date of the arbitration hearing no witness has
substantiated that the documents given to him were the same as those used in
the disciplinary hearing of the applicant and the documents have been
tampered with as some pages were missing and mixed up.
[91] He argued further that it was unfair labour practice to discipline an
employee who went to his work premises to collect his medicine and accuse
him of being under the influence of alcohol while he was not on duty. It was
further his contention that in any event, there is no Company Policy that
prohibits an employee to come to the workplace to collect his medicine.
[92] With regard to substantive fairness, Mr. Shiikwa contended that none of
the company witnesses could substantiate at the arbitration hearing that the
applicant was under the influence of alcohol. He argued further that it was also
unclear as to how applicant threatened to kill Mr. Phillemon Christoph and
that the fact that applicant had threatened Mr. Philemon was merely a made
up story. He also contended further that from the evidence adduced it was
apparent that Mr. Phillemon had a personal problem with the applicant and
that he had plotted to get rid of him.
[93] It was further Mr. Shiikwa’s argument that for a disciplinary hearing to be
fair in the eyes of the law and the Labour Act, Section 33 subsection (a) thereof
states that that any termination of employment must effected for a valid and
fair reason and in accordance with fair procedure but the chairperson of the
16
disciplinary enquiry regarded the issue of an asthma pump not to be a valid
reason for applicant to enter the company premises.
[94] He argued further that the chairperson of the disciplinary hearing did not
consider the employee’s history when he meted out the sanction of dismissal.
He pointed out further in his argument that the chairperson of the disciplinary
enquiry did not look at the fact that the applicant had worked for the company
for 13 years and has been injured at work whereby he lost 75% of his left hand.
[95] Finally, he argued that the evidence put forward by the respondent’s
witnesses during the arbitration hearing was mostly hearsay, especially the
evidence of the four witnesses. He thus prayed for an order quashing the
findings of the chairperson of the disciplinary enquiry and for an order
reinstating the applicant into the position he held before his dismissal with full
benefits as if his contract was not terminated.
Respondent’s closing statement
[96] Like the applicant, respondent’s representative Dr. Van Rooyen, in
addition to his oral arguments, submitted written head of arguments. He
submitted that the main issues for determination are as follows:

whether or not the applicant had threatened the Production Manager by
saying that he will kill him when they exchanged words in the factory on
Saturday 23 May 2009.

whether or not the applicant was perceptibly under the influence of
alcohol whilst being in the factory on the day in question.

whether or not the respondent had withheld relevant company policies
from the Applicant when requested.

whether or not a fair disciplinary procedure had been held.

whether or not sufficient evidence had been led at the disciplinary
hearing to justify a finding of guilty on a balance of probabilities.

whether or not the respondent had sufficient grounds for terminating the
employment relationship.
17
[97] He submitted that according to the evidence led by Mr. Christoph at the
hearing, and also confirmed in his statement made three days after the
incident (Item 5. of the Bundle of Documents), the Applicant had said he
wanted to see him in his office after Mr. Christoph had enquired from him what
was he looking for, since the Applicant was not scheduled to work that day nor
did he have the right to simply enter the factory in his private capacity without
authority.
[98] He contended further that when applicant and Mr. Philemon met in the
office the applicant had said he will kill him. This was confirmed at the
hearing by an eye –witness (Mr. John Kamati- Production Supervisor at the
time) who was present in the office when the threat was made.
[99] Dr. Van Rooyen argued that regarding the second question (whether or not
the applicant was under the influence of alcohol), the applicant admitted under
cross examination that he drinks alcohol, but denied that he was under the
influence of alcohol when he came to the factory.
[100] He contended further that although there was no breathalyzer at the
factory to test the applicant, the evidence of his physical condition and
behavior referred to above, and his irresponsible treat to kill the Production
Manager, were strongly indicative on a balance of probabilities that the
applicant was indeed intoxicated when he came to the factory to meddle about
claimed overtime irregularities.
[101] On the third question (withholding of relevant company policies) it was
the respondent’s submission that evidence was led by Ms Amanda Ntoni, the
Regional HR Manager, that when approached by Applicant’s Representative,
she had supplied him with all relevant policies drawn from the Steinhoff Africa
Holdings (Pty) Ltd Policy and Procedure Manual and Annexure.
[102] He argued further that the witness had not supplied him with the total
policies since they had no bearing on the issues at hand.
He contended
further that at the request of the Representative at the arbitration proceedings
the full documents were subsequently supplied to the parties. He averred that
Namib Foam, as explained by the witness, is a subsidiary of the Steinhoff
Group, and hence its policies also apply to Namib Foam. Although the policy
cites South African legislation in place the principles apply equally where
applicable.
18
[103] On the forth question above (fair disciplinary procedure), it was the
respondent’s argument that evidence was led by the Chairperson of the
disciplinary Hearing, Mr Roland Zizow, on all facets of the hearing with
reference also to various documentary evidence in the Bundle of Documents,
including also witness statements, suspension advice, hearing notice, minutes,
mitigating statement, aggravating statement and disciplinary code.
[104] Dr. Van Rooyen submitted that from the evidence adduced it was
apparent that a proper preliminary investigation was held during which
witnesses’ statements were obtained (the applicant declined to make a
statement); sufficient notice of disciplinary hearing had been given; an
independent chairperson presided at the hearing; representation of the
applicant by two union officials and a shop steward; and an opportunity was
given for mitigation and aggravation, there was a motivated recommendation
for sanction of dismissal.
[105] It was further the respondent’s argument that during the arbitration
proceedings Mr. Zirzow said that the applicant had called one witness right at
the end, but that the evidence was vague and not relevant. This was refuted by
the Applicant who insisted that he had not called any witness. The Arbitrator
consequently requested that the relevant audio- recording be played to the
hearing and when the relevant portion of the CD was played to the arbitration
hearing Mr. Abuid positively identified the voice of the witness as being his
voice. To this end he argued that the replaying of a part of the CD also confirms
in a second manner that the Applicant is not a reliable and honest witness,
even although the testified under oath.
[106] On the fifth question (sufficient evidence), he submitted that the
respondent led evidence through Ms. Ntoni that the Company has strict rules
prohibiting an employee from being under the influence of alcohol at work and
against assault or threatening. He pointed out in his arguments that the
penalty for transgressing either of these rules is dismissal, as indicated in the
Company’s Disciplinary Code (Item 17. of the Bundle of Document). He argued
further that evidence was led that the Applicant attended training in these
aspects, but even without that, any normal adult person can reasonably be
expected to know that intoxication at work and assault or threats or assault or
even to kill a fellow employee and supervisor is taboo.
19
[107] He argued further that from the above it is was manifest that in this
matter important rules apply, rules which were known to the Applicant, or
which he could reasonably have been expected to know; the rules are fair and
proper, and the evidence presented at the disciplinary hearing and at the
arbitration proceedings indicated on a strong balance of probabilities that the
applicant seriously infringed those rules.
[108] He advanced his argument further that on the last question (whether or
not the Respondent had sufficient grounds for terminating the employment
relationship) it is necessary to view the applicant’s misconduct in perspective.
He argued further that is true that the Applicant had been employed for
approximately 13 years and had also been a shop steward. However, the
gravity of his dual offences of aggressively threatening to kill a manager in a
loud voice whilst pointing a finger at him in close proximity and at the time
also being under the influence of alcohol; the dangerous workplace milieu of a
factory with moving machinery and chemicals; and the responsibility of an
employer to protect all employees, made it imperative that the sanction
indicated in the disciplinary code for this type of misconduct be imposed.
[109] He further pointed out that the trust relationship has been broken and is
irritable, not only would a continuation of employment be most detrimental to
work relations, but management would be failing in its duty to maintain a safe
and productive work environment by creating a serious precedent.
Furthermore, the unease and probable fear engendered by the occurrence and
its still lingering influence on others in the workforce, was not only again
reflected in Mr. Christoph’s own testimony of how he felt about what happened,
but also comes strongly to the fore, through the reticent response of other
witnesses who were approached to testify at the arbitration.
[110] It was the respondent’s further submission that the evidence before this
tribunal proves on a strong balance of probabilities that the dismissal of the
Applicant by the Respondent occurred for a valid and fair reason and in
compliance with a fair procedure as contemplated in Section 33(1) of the Labour
Act, 2007. The Respondent, therefore, respectfully prays that the complaint
brought by the Applicant be dismissed.
20
ANALYSIS OF EVIDENCE AND ARGUMENTS
[111] It is evident that most of the facts in this matter are common cause save
for the grounds for the dismissal of the applicant, which both parties herein
contested vigorously. In making my determination of the matter, I shall
however restrict myself to those aspects which I consider material in making an
order which is just and equitable. I shall address all pertinent issues in a
compendium, without specifically looking at one aspect save where it is not
practicable to do so. In so doing, it is my intention first to determine whether in
the circumstances peculiar to this matter, applicant’s dismissal was effected for
a valid and fair reason, and even if that is so, whether his dismissal was in
accordance with fair procedure as required by section 33 of the Labour Act (Act
11 of 2007) hereinafter conveniently referred to as the Labour Act.
[112] It is apparent from the above that a two-legged inquiry is usually invoked
in determining whether the dismissal was fair or not. In SPCA v Terblanche
NLLP 1998 (1) 148 NLC it was held that the test for a valid dismissal is twofold, the criterion set out is cumulative and not separate, meaning procedural
and substantive. Once it is established that there is a good and genuine
grievance for dismissing the employee, the consideration of whether the
disciplinary proceedings were fairly conducted has to be made.
[113] As a point of departure, my analysis commences with an inquiry into
whether there existed a valid reason to terminate applicant’s services. Without
dwelling much on the sequel of events that led to applicant’s dismissal, it is
apposite here to reflect back and discern from the facts before me, the reasons
for applicant’s dismissal. It was common cause that the applicant herein, an
erstwhile employee of the respondent, was on compassionate leave to attend
the burial of his late brother from the 22 May 2009. The following day, the 23
May 2009, the actual burial took place and thereafter that day he had gone to
the premises of his employer at around 16h45.
[114] That being undisputed, there are two versions as to why applicant paid a
visit at the factory on the date in question; on one hand, the respondent’s
version is that the only reason why applicant had paid a visit at the respondent
premises back then was to check on his union members as to whether they
were being remunerated for performing overtime on a Saturday, and further
that when he entered the factory he was under the influence of liquor as
manifested by his demeanour there, including the fact that he had also
threatened to kill the Production Manager.
21
[115] On the other hand, applicant’s evidence is to the effect that he had
simply gone to the factory to fetch his asthma pump which he had forgotten
there the previous day, being the 22 May 2009, and which fact he had come to
learn while at the funeral of his brother, and as to the allegations leveled
against him on his behaviour that particular day, applicant has vehemently
denied ever being drunk nor having threatened to kill the Production Manager.
[116] Applicant was duly charged with the two offences emanating from this
incident namely; assault by threat and being under the influence of
intoxicating liquor. It suffices to mention that in terms of the company policy,
both of these offences carry a sanction of dismissal. The evidence led during
the initial disciplinary hearing, and subsequently at this hearing in support of
the charge of assault by threat, as per the two witnesses who had testified at
both forums was to the effect that applicant had uttered words to the
Production Manager, one Philemon, that “I will kill you”. These words, were
uttered in the presence of Mr. John Kamati, whom I found to be a candid
witness as far as this occurrence is concerned, and as I will demonstrate herein
later his reliability and credibility.
[117] No evidence was clearly put on record as to what prompted the applicant
to utter such unbecoming words towards Mr. Philemon, which fact was further
complicated by the fact that at the time when the applicant entered the factory
for the first time, he met Mr. Philemon outside the office and as to what they
have said to one another before Mr. Kamati came into the picture only God
knows. However, what is also striking here is the fact that when such words
were uttered, applicant did not have any dangerous object in his hand nor did
he attempt to push Mr. Philemon save for the fact that he had pointed a finger
at him and was relatively in a close proximity.
[118] The other perplexing issue is the context in which the word kill was used,
applicant on one hand contended that he had used it in the context that he
would die if he does not have his asthma pump with, while the Messrs.
Philemon and Kamati testified that it was used in the context of killing Mr.
Philemon. Like I stated herein before, I was impressed by the manner in which
Mr. Kamati tendered his evidence and for this reason I am inclined to
acknowledge his account on what transpired as being the true version. Be that
as it may however, Mr. Kamati’s evidence is only relevant from the time when
he came into the picture.
22
[119] Even though I am satisfied that such words were most probably uttered
by the applicant, I am still left with more questions than answers, in other
words, it has not been clearly narrated to me as to what happened between the
applicant and Mr. Philemon outside. Applicant testified that when he entered
the factory, he passed through the main entrance where he had greeted a
security guard on duty, and only when he reached another entrance leading to
the factory he was blocked by Mr. Phillemon, who had asked him as to what he
was doing on the premises. Applicant stated that he did mention to Mr.
Philemon the reason why he was on the factory that time of the day, but still
Mr. Philemon persisted to refuse him entry into the factory. In my view, the real
problem arose already while the duo was outside and what happened in the
factory in the presence of the witness was just the tip of the iceberg and hence
it was wrong to assert that the applicant had threatened Mr. Philemon.
[120] As a matter of fact, there are so many things mentioned by both Mr.
Philemon and the applicant which I do not agree with and which in my view
were purposely fabricated in an effort to play a blame game. To point out a few,
Mr. Philemon stated that applicant had indicated that he had come to see
whether his members were paid overtime, which fact was never corroborated by
anybody because in any event, it is really worrying to me that someone would
just come from his brother’s funeral with a purpose of going to see whether his
members were paid overtime. On the basis of this, there existed little doubt
that applicant had come for a better cause other than speaking to his union
members and I am inclined to believe his version with regard to coming to fetch
an asthma pump, although I am may not agree with his version on what
transpired between him and Mr. Philemon, just in as much as I am doubtful of
Mr. Philemon’s version.
[121] Another striking feature of the evidence came forth during crossexamination of Mr. Philemon, when he vividly recalled an incident whereby he
had been insulted by applicant and as a result he had to involve applicant’s
elders in order for them to solve their problem amicably in a traditional way.
This fact was further corroborated by Mr. Kamati when stated that the only
person with whom applicant had a problem was Mr. Philemon, which problem
has been there even prior to the incident. This clearly indicates that since the
two were rivals, the version of either of them was not reliable to an extent that
it would have warranted applicant’s dismissal.
23
[122] Based on the above analysis, I am hence not satisfied that the charge of
assault by threat, in the absence of cogent facts as to how that threat was
executed save for utterances that were made to Mr. Philemon, was proved on a
balance of probabilities and hence as far as this charge is concerned, the
evidence was mutually destructive.
[123] Having dealt with the charge of assault by threat, I now turn to a second
charge, that of being under the influence of liquor. The evidence led in respect
of this charge was based on observations made by the witnesses, namely by
Messrs. Philemon and Kamati. They stated that applicant’s behavior was not
normal and was unsteady. Again, I have a problem with the manner in which
this charge was proven at the disciplinary hearing. The chairperson of the
disciplinary hearing stated that he heard evidence that applicant had fallen
from a table or chair, while Mr. Philemon stated that he had nearly fell. The
eyewitness, Mr. Kamati, when I asked him as to what else did he observe, was
unable to recall this fact, and all what he said was that applicant’s demeanour
was not normal and an inference could be made that he was drunk on that
day.
[124] Again, I am rather perturbed by the fact that the Security Guard who was
at the entrance of the factory was not called during the disciplinary hearing to
testify as to what he had witnessed with regard to applicant’s demeanour. This
was certainly a major oversight on the side of the chairperson of the
disciplinary inquiry. In fact, at the time of arbitration I attempted to have the
Security Guard called, but due to the ever mobility of Security Guards in
Namibia, the Guard could not be traced.
[125] The point I am trying to make here is, although the onus to prove the
guilt of an employee by the employer is one on the preponderance of
probabilities as opposed to a proof beyond all reasonable doubt, if applicant
was seriously drunk as testified, the security guard could have been a more
reliable witness as he was the one who saw the applicant when he entered the
factory. Of course, I must state here that it is possible that applicant did cause
a drama that day, given the altercation he had with Mr. Philemon, and which
behavior I do not encourage, but one cannot infer that one is drunk merely
because that person is aggressive and out of his mind. It is true, that some
people can look like lunatics when they are aggressive and hence the
conclusion that applicant was drunk based on his unbecoming behavior was a
travesty of justice to say the least.
24
[126] It is therefore my opinion, based on all facts before me that there was
no valid reason whatsoever to dismiss applicant as the evidence was sketchy
on both charges. The chairperson of the disciplinary hearing was certainly
oblivious to all the surrounding circumstances when he made his finding that
both charges were proved on a balance of probabilities and a subsequent order
for the dismissal of the applicant without having taken into account the
mitigating factors. In Namibia Beverages v Hoaes NLLP 2002 (2) 380 NLC, it
Manyarara J (as he then was) stated as follows with regard to substantive
fairness:
“……the concept of substantive fairness involves the issue of validity, i.e. whether there was
sufficient evidence placed before the court and the issue of fairness, i.e. whether the sanction
was appropriate in the circumstances.”
[127] By analogy therefore, I am not satisfied that the evidence placed on
record with regard to a charge of assault by threat and intoxication was
sufficient to render the dismissal of the applicant. Even if for whatever reason
the evidence was sufficient, the sanction of dismissal is a drastic one which
involves a great deal of consideration. It appears that the chairperson of the
disciplinary inquiry relied only on the Company Disciplinary Code which
prescribes dismissal in respect of the two offences, without attaching any
weight whatsoever to the mitigating factors present in the case, i.e. the long
service and the disability of the applicant. With regard to the strict application
of the Company Disciplinary Code, I would like to refer to the case City
Council of Windheok v Pieterse NLLP 2002 (2) 260 NLC where it was held
that a court should guard against the elevation of a code of conduct into an
immutable set of commandments that should be slavishly adhered to. This in
essence means that even if in the views of the chairperson of the disciplinary
inquiry applicant was guilty of an offence, he ought to take mitigating factors
into consideration to deviate from the respondent’s policy which states that
both assault by threat and intoxication are dismissible offences.
[128] The next thing that I must look at is now whether the fair procedure has
been followed. Applicant’s representative argues that the hearing was
procedurally flawed, relying on the fact that the Disciplinary Code which was
used during the hearing was not the correct one as it bore different names. I
am not swayed by this proposition, given the fact that the respondent is a
subsidiary of a holding company based in South Africa, from my understanding
it is not uncommon for a subsidiary company to apply the rules of its mother
company for the purposes of uniformity.
25
[129] Other than that, I could not glean from the evidence before me any other
fact which points to procedural unfairness and I am thus satisfied that the
hearing was conducted in a fair manner, given also the fact that applicant was
represented by union officials at that hearing. As a result therefore, I am also
not satisfied that there was unfair labour practice on the part of the
respondent.
[130] From the foregoing, it is evident that having found that applicant’s
dismissal was substantively unfair, I have found in favour of the applicant and
as a result, I must now look at the relief which is just and equitable in the
circumstances of the case. Applicant had indicated that the only relief he was
seeking was reinstatement with all the benefits to be paid retrospectively from
the date of dismissal to the date of this award. During arbitration, I had asked
him as to whether he had attempted to look for alternative employment in
order to mitigate his losses and he replied that no one else would be willing to
employ him because he had sustained injury while in the employ of the
respondent.
[131] I must state here that this line of reasoning is not plausible at all as one
cannot rely on a particular employer forever. In this ever-changing world where
the markets are so fragile, a company like the respondent can close its
business due to operational reasons in which case it will be compulsory to
retrench, so to say that you will not look for alternative employment because
you sustained injury there is a non-starter to say the least.
[132] In making my award for compensation, it is not my intention to punish
the company, but rather to make an award which is just and equitable in the
circumstances of this matter. Given the long drawn process of litigation that
ensued from the date of applicant’s dismissal, I do not think that reinstatement
is an appropriate relief in this matter, as the relationship between the applicant
and the respondent has reached a point of no return. In Mkize & Others v
Tembisa Town Council & Another (1987) ILJ 8 ILJ 256 (W) the court held
that reinstatement may be ruled out if the trust relationship has broken down
irreparably. For this reason, I am of the view that compensation for loss of
income is just and equitable.
26
Award
[133] Having come to the above conclusions as hereinbefore stated, I now make
the following order:
1. That applicant’s dismissal was substantively unfair and the
decision of chairperson of the disciplinary hearing dismissing
applicant from the service of the respondent is hereby set aside.
2. That having ruled that reinstatement is not a viable option, the
respondent must pay applicant compensation for loss of income in
the sum of Thirty Nine Thousand Namibian Dollars (39,600.00),
this being the average salary of the applicant calculated over a
period of 12 Months (i.e. N$ 3300 x 12 = N$ 39,600.00,)
3. That the said amount is payable on or before the 2nd May 2011,
proof of which must be furnished with the Office of the Labour
Commissioner.
4. No order as to costs is made in the circumstances of this matter.
[134] This award is final and binding on both parties hereto, and will be filed
with the Labour Court in accordance with Section 87 of the Labour Act (Act No.
11 of 2007)
Dated at Windhoek this 7th day of April 2011.
_________________
Moses Shitaleni Iinane
Arbitrator
Office of the Labour Commissioner
27