REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENTCase no: LCA 29/2013

In the matter between:

FLOORS JOHANNES NEL APPELLANT

and

SHINGUADJA B.M. N.O FIRST RESPONDENTIn his capacity as Labour Commissioner

HAROLD KAVARI N.O SECOND RESPONDENTJOWELLS TRANSPORT (PTY) LTD THIRD RESPONDENT

Neutral citation: Nel v Shinguadja (LCA 29/2013) [2013] NALCMD 42 (20

November 2013)

Coram: GEIER J

Heard: 27 September 2013Delivered: 20 November 2013

Flynote: Labour law — Labour Act 11 of 2007, sections 83(2) and (3)(b) -

Interpretation of – sections only applicable to conciliations conducted by conciliators

as defined in Section 1 and appointed in terms of section 82 in terms of Part B of

Chapter 8 of the Labour Act 2007 (ss 81 - 83) – and not to conciliation prescribed in

terms of Sections 86(5) and (6) as conducted by arbitrator’s appointed in terms of

REPORTABLE

2

section 85 – accordingly appellant’s application to the Labour Commissioner – in

terms of section 83(3) - for the reversal of the dismissal of a complaint on account

of the non-appearance of the appellant made in arbitration proceedings conducted

under Part C of Chapter 8 of the Act – held to have been ill conceived – Labour

Commissioner only having power in terms of section 83(3) to reverse decisions of

conciliators – appointed in terms of section 82 – Labour Commissioner when

considering application for reversal of a decision of an arbitrator – appointed in

terms of section 85 – thus acting ultra vires when considering and dismissing

application made to him by appellant.

Labour law — Labour Act 11 of 2007, ss 86(5) and (6) — Interpretation of - Chapter

8 enacted for the ‘Prevention and Resolution of Disputes’ – Legislature’s intention -

as expressed in Sections 86(5) and (6) - being that disputes should first be

conciliated upon – thereby preventing or attempting to prevent the resolution of

disputes through any subsequent arbitration, if possible - these legislative

requirements also giving expression to one of the fundamental principles underlying

the enactment of the Labour Act 2007 - as expressed in the Preamble of that act –

namely: ‘ … to provide for the systematic prevention and resolution of labour disputes

…’. – Court holding therefore that the aim and object of the Labour Act, as

expressed in these sections, was to first prevent- and only if it cannot be prevented-

to then achieve the speedy and inexpensive resolution of labour disputes through

arbitration – it emerging at the same time that the Legislature considered the

mechanism of conciliation an important tool achieve these aims - the word ‘must’, as

utilised in these sections, accordingly held to be peremptory - as otherwise these

aims and objective set by the act would be defeated -

Labour Act 11 of 2007, s 86(5) and (6) - laying down the requirement of conciliation,

as a peremptory pre-condition, before any dispute would be allowed to proceed to

arbitration-

Labour Act 11 of 2007, s 86(5) and (6) legislative requirement set by sections 86(5)

to first attempt to resolve any dispute through conciliation before beginning the

arbitration requiring no more than an attempt at conciliation – provided that it would

not be enough to just pay lip- service to the requirement of conciliation and that all

such prescribed conciliation attempts should at all times be seriously and

3

meaningfully made, with the aim of genuinely resolving disputes thereby obviating

the need to have to proceed to arbitration.

As the non-compliance with peremptory pre-conditions for arbitration were not

complied with in this instance the 2nd respondent’s decision of 22 August 2012 was

vitiated thereby – such decision accordingly set aside and the matter was referred

back to another arbitrator to be dealt with afresh in accordance with the governing

provisions of Part C of chapter 8 of the Labour Act.

ORDER

1. The 1st respondent’s decision of 8 March 2012 is hereby set aside.

2. The 2nd respondent’s decision of 22 August 2012 is hereby set aside.

3. The matter is referred back to another arbitrator to be dealt with afresh in

accordance with the applicable provisions of Part C of chapter 8 of the Labour

Act.

JUDGMENT

GEIER J:

[1] The appellant referred a dispute for conciliation or arbitration to the office of

the Labour Commissioner on 30 September 2011.

4

[2] On 6 March 2012, under Form LC 28, the Labour Commissioner’s office gave

notice that the matter was set down for arbitration before the 2nd respondent on 28

March 2012 at 09h00 – The matter did however not proceed on that date.

[3] On 14 August 2012 the 2nd respondent, under his hand, gave a further notice

that the arbitration was now set down for the 22nd August 2012 for 14h00.

[4] Although the time for the hearing had been set in such notice the appellant

alleges that he was informed only on arrival of that time – this aspect, so the

appellant explained, was not earlier brought to his attention by his erstwhile

representative, Mr Hewat Beukes.

[5] When the appellant then came with Mr Beukes to the office of the Labour

Commissioner at 14h00, the arbitrator was not present and the appellant and Mr

Beukes had to wait.

[6] After waiting for some 30 minutes Mr Beukes told appellant that ‘he was not in

a position to wait the whole day and that they should leave’.

[7] There is some dispute on the papers as to whether appellant and his

representative, where indeed punctual, on the day, as the Regional Manager, of 3 rd

respondent, explained that he and the 3rd respondent’s legal representative ran into

the arbitrator shortly before 14h00 and where told that the arbitration would only

commence around 14h45 as he, the arbitrator, was engaged in another matter.

[8] Appellant and Mr Beukes where in any event informed of this. A discussion

then ensued between 3rd respondent’s representative and Mr Beukes, which was

described as follows:

’We decided to wait for the arbitrator outside one of the board rooms on the first floor

of the Labour Commissioner’s office. Mr Beukes and the appellant eventually arrived and

joined us there. We informed them that the arbitrator would be late and that we would

probably start our hearing at 14h45. All of us then moved into one of the boardrooms where

Mr Beukes and Ms Klazen disagreed on the merits of the dispute at which point Mr Beukes

lost his temper. He made certain disparaging remarks against the SWAPO government and

5

called the arbitrator a “bobbejaan”. All of this occurred in the presence of Ms Klazen, the

third respondent’s two proposed witnesses in the dispute (Keith Oelofse and Graig de Klerk)

and the appellant. At the point when Mr Beukes started insulting the arbitrator I left the

boardroom. I am informed that during his verbal rampage, Mr Beukes also indicated that he

was not going to continue waiting for the arbitrator and then left the boardroom with the

appellant.

Short(ly) thereafter, I returned to the boardroom where the arbitrator joined me, Ms Klazen

and the third respondent’s witnesses. When the arbitrator queried the whereabouts of the

appellant, Ms Klazen informed him that the appellant and Mr Beukes were present earlier

but had left. At the arbitrator’s request, I then telephoned the appellant from my cell phone.

I spoke to him and informed him that the arbitrator had arrived and was waiting for him in

order to start the arbitration hearing. The appellant told me that he would not return. I then

handed my cell phone to the arbitrator who spoke with the appellant and with Mr Beukes

within hearing distance of everyone in the room. Based also on the content of pages 41 and

79 of the certified record, which I attach hereto as annexures “JT6” and “JT7” respectively for

ease of reference, it appears that Mr Beukes continued with his abusive language during the

discussion with the arbitrator. After his discussion with Mr Beukes, the arbitrator informed us

that the appellant and Mr Beukes refused to attend the arbitration proceedings, at which

point Ms Klazen requested that the matter be dismissed.’

[9] On account to the persistent abuse of appellant’s representative Mr Beukes,

the 2nd respondent, there and then, issued a notice headed ‘Notice of Dismissal

or/and Struck Down from the Roll’, on Form LC 50.

[10] This notice is somewhat ambiguous and contradictory. It does however seem

that the ultimate intention was to dismiss the complaint if one also has regard to

annexures JT6 and JT7 where the arbitrator expressly puts on record:

‘This behaviour and insults was a humiliation and tantamount to complete lack of

interest in their own case from the applicant’s side on that basis I dismissed the matter.’

[11] The appellant was apparently only informed of this decision on 18 February

2013 after he had sought the assistance of his current legal practitioners of record.

[12] On 20 February 2013 it was inexplicably then attempted to have the 2nd

respondent’s decision reversed through the launching an application in terms of

6

section 83(3), as read with section 83(2), of the Labour Act 20071 to the Labour

Commissioner.

[13] The Labour Commissioner refused this application on 8 March 2013. He

stated:

‘In that the applicant abandoned the proceedings together with his representative’…

adding that ‘As such they forfeited the right to be heard.’

[14] The appellant then noted an appeal against that decision of the arbitrator and

also brought an application for condonation for the late noting of the appeal. This

was on 8 April 2013.

[15] The appeal and the condonation application was opposed by the 3 rd

respondent.

[16] Lengthy heads of argument where filed on behalf of the appellant by Mr de

Beer and Mr Maasdorp on behalf of the 3 rd respondent – The court is grateful for

their industry and effort as well as their oral argument.

[17] As the matter can however be resolved on a technical basis it will however not

be necessary to consider all the arguments so raised by them in detail.

THE ATTEMPT TO RESCIND THE ‘CONCILIATOR’S’ DECISION

[18] It is clear that the appellant originally referred his dispute in terms of section

82(7) and 86(1) of the Labour Act on 22 September 2011 – It appears from the

utilised Form LC 21 that the nature of the dispute was described as ‘Unilateral

change of terms and conditions’ and ‘Severance Package’.

1‘83 Consequences of failing to attend conciliation meetings(1) ….(2) In respect of any other dispute referred in terms of this Act, the conciliator of the dispute

may dismiss the matter if the party who referred the dispute fails to attend a conciliation meeting.’ (3) The Labour Commissioner may reverse a decision made by a conciliator in terms of

subsection (2)(a) if-(a) application is made in the prescribed form and manner; and(b) the Labour Commissioner is satisfied that there were good grounds for failing to

attend the conciliation meeting.

7

[19] There was also a request for representation at conciliation or arbitration in

terms of section 82(13) or 86(13).

[20] The record also contains an application dated 22 September 2011 to the

Labour Commissioner to declare ‘the severance package of the appellant less

favourable to him (the employee) as envisaged by section 2(3)(a)(ii) of the Labour

Act – the letter dated 01 December 2000 by management does not constitute a

contract’.

[21] It should possibly be explained at this juncture, and to put the said claim for a

declaration in better context, that the appellant had retired, in terms of the 3 rd

respondent’s retirement policy - at the age of 63 - and after 40 years of uninterrupted

service - without any entitlement to severance pay in terms of the said policy. - the

Labour Act – by way of contrast – however prescribing, in section 35(1)(c), that

employees, retiring at the age of 65, are to be paid severance pay.

[22] In this regard it should be kept in mind that the Labour Act also states in

Section 9(1) that all provisions of Part B to F, of Chapter 3 of the Act2, are to be basic

conditions of any employment contract.

[23] Section 9(2)3 then provides that such basic conditions are only part of any

contract of employment to the extent that a term of the employment contract is more

favourable.

[24] Accordingly the appellant now sought a declarator to the effect that the

company’s policy, relating to his retirement4, be declared not to constitute a term of

his employment contract as the law had superimposition a more favourable basic

term thereon, namely as provided for in terms of section 35(1)(c).

2 ‘9 Basic conditions(1) Each provision set out in Parts B through to F of this Chapter is a basic condition of

employment.’3 ‘A basic condition of employment constitutes a term of any contract of employment except to the extent that-

(a) any law regulating the employment of individuals provides a term that is more favourable to the employee;’4 Which was less favourable that the statutory basic condition of employment set by Section 35(1)(c)

8

[25] The so superimposed term of the appellant’s employment contract, so it was

contended, now entitled the appellant to claim severance pay – it should incidentally

be mentioned that the appellant had received an ex-gratia payment of N$7000.00 -

‘in recognition’ for his 40 years of service - on retirement.

[26] When it comes to complaints of this nature the Labour Act 2007 expressly

maps the avenue for pursuing such relief in Part C – which provides that a party to a

dispute – as defined – which includes complaints relating to the breach of a contract

of employment may refer such dispute to arbitration.5

[27] It will have become clear that the appellant’s complaint was essentially one

relating to the alleged breach of a basic condition of employment: section 35(1)(c)

superimposed as a basic condition on his contract by the Act in terms of section 9.

[28] In contra-distinction only the categories of complaints listed in sections 81(a)

to (c) of the Act are to be referred to conciliation – The here alleged breach of

contract is not included in the categories of cases listed in section 81(a) to (c).6

[29] It is also clear from the papers that the Labour Commissioner initially reacted

to the appellant’s request for a referral by issuing a notice on 06 March 2012, setting

the matter down for arbitration on 06 March 2012 before the 2nd respondent.

[30] This hearing did not materialise and the 2nd respondent on this occasion set

the matter down, again for arbitration, on 22 August 2012, by letter dated 14 August

2012. The appellant’s complaint was then dismissed on that day in the

circumstances sketched above.

[31] It was against this background that the appellant then launched his application

to ‘reverse (the) conciliator’s decision’ in terms of section 83(3).

5 See Section 84 – ‘For the purposes of this Part, "dispute" means- (a) a complaint relating to the breach of a contract of employment or a collective agreement; … 6 For the purposes of this Part: "dispute" means any of the following: (a) a dispute of interest; (b) a dispute referred to the Labour Commissioner in terms of section 45 of the Affirmative Action (Employment) Act, 1998 (Act 29 of 1998); (c) a dispute referred for conciliation by- (i) the Minister in terms of section 80(1)(a); or (ii) the Labour Court in terms of section 117(2)(a).

9

[32] In the affidavit filed in support of that application appellant indicated that he

understood the dismissal to have been made in terms of section 83(2)(a). In the

same breath he however states:

(a) ‘The case number allocated to it was CRWK 130.12 and (the) dated for

arbitration was 28 March …’

(b) A copy of the notification and the designation as arbitrator is attached…’

(c) I was informed by my representative … that arbitration will be held at the office of the

Labour Commissioner.

(d) On arrival at the office of the Labour Commissioner on 22 April (August) 2012 we

were informed that the arbitration is set down for only at 14h00.

(e) The arbitrator … was not present to conduct the arbitration at 14h00….

(f) I repeatedly and regularly made enquiries at Mr Beukes as to when the arbitration will

proceed.

(g) … the Labour Commissioner and prejudice favour the reversal of the dismissal and

allow the arbitrator to proceed …’. (my underlining)

[33] It becomes more than abundantly clear that the appellant always understood

that the matter had been set down for arbitration on 22 August 2012 and that he and

Mr Beukes went for arbitration.

[34] It has also emerged that the appellant’s complaint was correctly treated as a

complaint that fell to be determined through arbitration under Part C of the Labour

Act and that it was common cause that there was never a dispute that had to be

resolved through conciliation in terms of Part B of the Chapter 8 of the Act.

[35] It is in such circumstances that the provisions of Section 86(4) and (5)

become of relevance.

10

[36] In terms of Section 86(4) the Labour Commissioner must - upon the referral of

a dispute under Part C - refer the dispute to an arbitrator who then becomes obliged

to attempt to resolve the dispute through arbitration.

[37] Section 86(5) importantly then states:

‘Unless the dispute has already been conciliated the arbitrator must attempt to

resolve the dispute to conciliation before beginning the arbitration.’ (my underlining)

[38] Section 86(6) then reinforces this provision by requiring:

‘If the conciliation attempt is unsuccessful, the arbitrator must begin the arbitration.’

(my underlining)

[39] It has emerged from the record that no such conciliation took place or was

contemplated. The notices were issued for arbitration and all parties understood that

they had been requested to attend arbitration proceedings.

[40] It will also already have been noticed that the Labour Act makes a distinction

between disputes that have to be dealt with under Part B of Chapter 8 of the Act and

those that have to be dealt with in terms of Part C of Chapter 8 of the Act.

[41] Those disputes which are subjected to conciliation proceedings are governed

by Sections 81 to 83 of the Act.

[42] Section 83(2) then provides that:

‘In respect of any other dispute referred in terms of this Act, the conciliator of the

dispute may dismiss the matter if the party who referred the dispute fails to attend a

conciliation meeting.’ (my underlining)

[43] At first glance it would appear that a conciliator’s power to dismiss a dispute

referred to in terms of the Act due to a parties’ failure to attend a conciliation

meeting, would also extend to those conciliation proceedings prescribed in Part C –

Sections 86(5) and (6), were it not for the definition of the concepts of ‘conciliator’

11

and ‘arbitrator’, as contained in Section 1 of the Act, which then makes it clear that

the powers granted by Section 83(2) are conferred on ‘conciliators’ appointed in

terms of Section 82 of Part B the Act, as opposed to being conferred on ‘arbitrator’s’,

appointed in terms of Section 85 of Part C of the Act, who in the course of their

duties also have ‘to attempt to resolve disputes through ‘conciliation’ before

beginning the arbitration’.

[44] The 2nd respondent was appointed as ‘arbitrator’ in terms of section 85(5) and

86(4)(a) and could thus not exercise the powers conferred on ‘conciliators’ appointed

in terms of Section 82 when he issued the ‘Notice of Dismissal Struck Down from the

Roll’, on Form LC 50.

[45] In any event it is also clear that no conciliation as envisaged in sections 81 to

83 of Part B of the Act took place which the appellant failed to attend and that the 2 nd

respondent must therefore have issued the ‘Notice of Dismissal or/and Struck Down

from the Roll’ on 22 August 2012 in his capacity as ‘arbitrator’ appointed in terms of

Section 85 of the Act.

[46] As the Labour Commission’s power to reverse a decision of a conciliator due

to a parties failure to attend a conciliation meeting is however only conferred in

respect of decisions made by ‘conciliators’ – as defined - i.e conciliators appointed in

terms of Section 82 of Part B of Chapter 8 of the Act - it emerges that the 1 st

respondent did not have the power to consider the reversal of the decision made by

the 2nd respondent on 22 August 2012 on application to him. The 1st respondent’s

decision made in this regard on 8 March 2013 was therefore ultra vires and thus has

to be set aside on that basis.

[47] At the same time it becomes clear that the appellants’ application to the

Labour Commissioner, in terms of section 83(3), to reverse the decision of the 2nd

respondent, the arbitrator in this instance, was misguided for these same reasons.

THE IMPACT OF THE NON-COMPLIANCE WITH SECTIONS 86(5) AND (6) ON THE APPEAL

[48] As far as the merits of the appeal were concerned the 3 rd respondent mainly

opposed the granting of the condonation sought by appellant in respect of the late

12

noting of the appeal on the basis that the appellant could not show good prospects of

success on the merits of the appeal.

[49] This attack was mounted against the appellant’s quest to be paid severance

pay as provided for in terms of section 35(1)(c) as read with section 9(1) and 9(2)(b)

- as already alluded to above – and in respect of which it was submitted that such

reliance was fundamentally flawed.

[50] I have however indicated that the resolution of this appeal hinges on a more

fundamental issue – namely, on the impact of the failure to even attempt to conciliate

the dispute in terms of section 86(5) and (6), as prescribed, before commencing with

the arbitration.

THE LEGISLATIVE SCHEME: THE PRE-REQUISITE TO CONCILIATE BEFORE COMMENCING ARBITRATION

[51] The Labour Act 2007 requires that arbitrator's - to whom an arbitration has

been assigned under Part C of Chapter 8 of the Act - first attempt to resolve such

disputes through conciliation - and only once such conciliation attempt is

unsuccessful - ‘must the arbitrator begin the arbitration.’7

[52] It will already have become clear from what has been set out above that the

arbitrator in this case, the 2nd respondent herein, failed to invite the parties to

conciliation or to even contemplate conciliation. No conciliation did take place.

[53] In order to determine the impact of this it needs to be established whether or

not the act in peremptory- or merely directory terms requires arbitrators to first

attempt to conciliate disputes referred to them before commencing with any

arbitration?

[54] It does not take much to fathom that the outcome of this enquiry will turn on

what statutory interpretation should be given to the word ‘must’, as used in sections

86(5) and (6).

7 See Sections 86(5) and (6)

13

[55] The word ‘must’ - just like the word ‘shall’ - can be interpreted to be

peremptory or directory. In Maharaj and Others v Rampersad 1964(4) SA 638 (A) at

643 D-E van Winsen AJA stated:

‘It is a recognised principle of statutory construction that a Court, when determining

which of these two alternative constructions is to be placed upon a statutory enactment,

must seek to ascertain the real intention of the Legislature and in so doing must have regard

to the scope and object of the enactment as a whole. As stated by SCHREINER, J.A., in

Charlestown Town Board and Another v Vilakasi, 1951 (3) SA 361 (AD) at p. 370, every

enactment

'must be dealt with in the light of its own language, scope and object and the

consequences in relation to justice and convenience of adopting one view rather than the

other'

or, to express this principle in the language of LORD PENZANCE appearing in a

passage from his judgment in the case of Howard v Bodington, 2 P.D. 203, adopted by DE

WET, C.J., in Leibbrandt v South African Railways, 1941 AD 9 at p. 13:

'. . . in each case you must look to the subject matter; consider the importance of the

provision that has been disregarded and the relation of that provision to the general object

intended to be secured by the Act; and upon a review of the case on that aspect decide

whether the matter is what is called imperative or only directory'.8

8 See also : DTA of Namibia v Swapo Party of Namibia 2005 NR 1 (HC) at p 9 – 10 where the Full Bench of the High Court referred to some of the applicable guidelines summarized by Herbstein J in Pio v Franklin NO and Another 1949 (3) SA 442 (C) at 451: 'In Leibbrandt v SA Railways (1941 AD 9 at 12) De Wet CJ said that ''it is impossible to lay down any conclusive test as to when a legislative provision is directory and when it is peremptory''. He quoted with approval the statement of Lord Campbell in Liverpool Borough Bank v Turner (1861) 30 LJ CH 379 which was recently again quoted with approval in Vita Food Products v Unus Shipping Co (1939 AC 277 PC):

'No universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the Courts of Justice to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be considered.'' In Sutter v Scheepers (1932 AD 165 at 173 – 174), Wessels JA suggested ''certain tests, not as comprehensive but as useful guides'' to enable a Court to arrive at that ''real intention''. I would summarise them as follows:

1. The word ''shall'' when used in a statute is rather to be considered as peremptory, unless there are other circumstances which negative this construction.

2. If a provision is couched in a negative form, it is to be regarded as a peremptory rather than a directory mandate.

3. If a provision is couched in positive language and there is no sanction added in case the requisites are not carried out, then the presumption is in favour of an intention to make the provision only directory.

4. If when we consider the scope and objects of a provision, we find that its terms would, if strictly carried out, lead to injustice and even fraud, and if there is no explicit statement that the act is to be void if the conditions are not complied with, or if no sanction is added, then the presumption is rather in favour of the provision being directory.

5. The history of the legislation also will afford a clue in some cases.'See also: Sayers v Khan 2002 (5) SA 688 (C) at 692A – D and the discussion in : Rally for Democracy & Progress v Electoral Commission of Namibia 2010 (2) NR 487 (SC) at [34] to [43]

14

[56] The first cue to ‘the Legislature’s real intention’ is in my view disclosed by the

heading of Chapter 8 which indicates that Chapter 8 was enacted for the ‘Prevention

and Resolution of Disputes’- (my underlining). It is precisely this intention that is

echoed by the requirements set in Section 86(5) and (6), namely, that disputes

should first be conciliated upon – thereby preventing or attempting to prevent the

resolution of disputes through any subsequent arbitration, if possible.

[57] The legislative requirements set by section 86(5) and (6) also seem to give

expression to one of the fundamental principles underlying the enactment of the

Labour Act 2007 as a whole - as expressed in the Preamble of that act – namely: ‘ …

to provide for the systematic prevention and resolution of labour disputes …’.9 (my

underlining)

[58] It appears that, inter alia, the aim and object of the Labour Act is thus to first

prevent- and only if it cannot be prevented- to then achieve a speedy and

inexpensive resolution of labour disputes through arbitration.

[59] At the same time it emerges that the Legislature considered the mechanism of

conciliation an important tool to achieve the aim of preventing labour disputes, if

possible, through the pre-condition set in the enactment of sections 86 (5) and (6).

[60] To find in such circumstances that the word ‘must’, as utilised in these

sections, should merely be interpreted to be ‘directory’ would obviously defeat these

aims and objectives of the legislation.

[61] The use of the word ‘must’, in my view, demonstrates that the Legislature

intended to lay down the requirement of conciliation, as a peremptory pre-condition,

which has to be met before any dispute would be allowed to proceed to arbitration.

9 ‘To consolidate and amend the labour law; to establish a comprehensive labour law for all employers and employees; to entrench fundamental labour rights and protections; to regulate basic terms and conditions of employment; to ensure the health, safety and welfare of employees; to protect employees from unfair labour practices; to regulate the registration of trade unions and employers' organisations; to regulate collective labour relations; to provide for the systematic prevention and resolution of labour disputes; to establish the Labour Advisory Council, the Labour Court, the Wages Commission and the labour inspectorate; to provide for the appointment of the Labour Commissioner and the Deputy Labour Commissioner; and to provide for incidental matters.’ (my underlining)

15

[62] Both counsel made the point that the Legislative requirements, set by

Sections 86(5) and (6), to attempt to resolve any dispute through conciliation, before

beginning the arbitration, need not be more than an attempt at conciliation and that

any such attempt did also not have to follow the procedures set by the Act and the

rules relating to conciliation under Part B of Chapter 8.

[63] I agree - but I should add that it should by now have become clear - from the

aims and objectives expressed by the Legislature through the enactment of Part C of

Chapter 8 of the Act - that it would not be enough to just simply pay lip- service to the

requirement of conciliation set by Sections 86(5) and (6) - and that it must have been

intended that the so prescribed conciliation attempts should at all times be seriously

and meaningfully made, with the aim of genuinely resolving the pending disputes

thereby obviating the need to have to proceed to arbitration, if possible.

[64] If one then reverts to the facts of this matter it becomes clear that this

peremptory pre-condition for arbitration was not complied with in this instance.

There was simply no conciliation or even an attempt at conciliation. All notices

emanating from the 2nd respondent required the parties to present themselves for

arbitration. The parties understood these requests accordingly.

[65] This non-compliance with the peremptory requirements set by sections 86(5)

and (6) then also vitiates the 2nd respondent’s decision as made on 22nd August

2012.

[66] In the result the following orders are made:

1. The 1st respondent’s decision of 8 March 2012 is hereby set aside.

2. The 2nd respondent’s decision of 22 August 2012 is hereby set aside.

2. The matter is referred back to another arbitrator to be dealt with afresh in

accordance with Part C of chapter 8 of the Labour Act.

16

----------------------------------

H GEIER

Judge

17

APPEARANCES

APPELLANT: P. J de Beer

De Beer Law Chambers, Windhoek.

3RD RESPONDENT: R. Maasdorp

Instructed by Ellis Shilengudwa Inc., Windhoek