he was dismissed from his employment on allegations that he committed acts of misconduct. He, in terms of s 85 of the Labour Act, 2007 referred a dispute of unfair dismissal and unfair labour practice to the Labour Commissioner. The Labour Commissioner appointed an arbitrator to conciliate and arbitrate the dispute. The arbitrator found that dismissal was procedurally and substantively Mr Moongela’s unfair. The arbitrator ordered the appellant to reinstate the respondent with full benefits as well as full salary benefit payments as from the day of termination of services up until re-employment. This is an appeal by the appellant against the whole of the arbitration award made by the arbitrator, under s 86(15) of the Labour Act, 2007. The respondent opposed the appellant’s appeal. Held that, in respect of the first charge, the context in which the respondent allegedly shouted at De Wee was not placed before the chairperson of the disciplinary enquiry. The court also found that the evidence by Gouws that De Wee] gave me his ‘Stanley [i.e. statement and reveals that, the evidence of Gouws and De Wee was I drafted mine’ to prove the allegations against the respondent. The chairperson of the ‘tailored’ disciplinary was, in the circumstances under an obligation to disregard both De Wee and and evidence. Gouw’s statements Held further that, the arbitrator was correct when she found that the respondent could not have been found guilty on the charge of or behaviour, ‘Abusive/insulting language, signs including serious disrespect, impudence or insolence.’ Held further that, in respect of the second charge, one of the essential ingredients of the charge, namely that the respondent was under the influence of intoxicating substances while on the premises was not satisfied. The court found that the respondent appellant’s was not on the premises, he was refused access to the premises and turned appellant’s away. For this reason the finding of guilt and the resulting sanction cannot be sustained and is set aside. Held further that, in respect of the third charge the Disciplinary Code and appellant’s Procedures does not contain a definition of fraud or fraudulent time keeping. In the absence of any specific definition in the Disciplinary Code and Procedures, appellant’s fraud must be given its ordinary meaning within the general law applicable in the country.
he was dismissed from his employment on allegations that he committed acts of misconduct. He, in terms of s 85 of the Labour Act, 2007 referred a dispute of unfair dismissal and unfair labour practice to the Labour Commissioner. The Labour Commissioner appointed an arbitrator to conciliate and arbitrate the dispute. The arbitrator found that Mr Moongela’s dismissal was procedurally and substantively unfair. The arbitrator ordered the appellant to reinstate the respondent with full benefits as well as full salary benefit payments as from the day of termination of services up until re-employment. This is an appeal by the appellant against the whole of the arbitration award made by the arbitrator, under s 86(15) of the Labour Act, 2007. The respondent opposed the appellant’s appeal. Held that, in respect of the first charge, the context in which the respondent allegedly shouted at De Wee was not placed before the chairperson of the disciplinary enquiry. The court also found that the evidence by Gouws that ‘Stanley [i.e. De Wee] gave me his statement and I drafted mine’ reveals that, the evidence of Gouws and De Wee was ‘tailored’ to prove the allegations against the respondent. The chairperson of the disciplinary was, in the circumstances under an obligation to disregard both De Wee and Gouw’s statements and evidence. Held further that, the arbitrator was correct when she found that the respondent could not have been found guilty on the charge of ‘Abusive/insulting language, signs or behaviour, including serious disrespect, impudence or insolence.’ Held further that, in respect of the second charge, one of the essential ingredients of the charge, namely that the respondent was under the influence of intoxicating substances while on the appellant’s premises was not satisfied. The court found that the respondent was not on the appellant’s premises, he was refused access to the premises and turned away. For this reason the finding of guilt and the resulting sanction cannot be sustained and is set aside. Held further that, in respect of the third charge the appellant’s Disciplinary Code and Procedures does not contain a definition of fraud or fraudulent time keeping. In the absence of any specific definition in the appellant’s Disciplinary Code and Procedures, fraud must be given its ordinary meaning within the general law applicable in the country.
ABB%20Maintenance%20Services%20Namibia%20(Pty)%20Ltd%20v%20Moongela%20(LCA%2011-2016)%20[2017]%20NAHCMD%2018%20(07%20June%202017).docx