NOVANAM LIMITED - NAMIBIA SUPERIOR COURTSejustice.moj.na/High Court/Judgments/Labour/Novanam... · Web viewPenta Publication (Pty) Ltd v Schoombee and others [2000] 2 BLLR 199 (LC)

43

(REPORTABLE)REPUBLIC OF NAMIBIA

IN THE LABOUR COURT OF NAMIBIA

JUDGMENT

Case no:LC 101/2013

LCA 47/2013

In the matter between:

NOVANAM LIMITEDAPPLICANT

and

WILLEM ABSALOM1ST RESPONDENT

ANNATOLIE SHIVOLO & 135 OTHERS

(As per arbitration award)2ND-137TH RESPONDENTS

EMILIA THOMAS & 297

(As per arbitration award)138TH-316TH RESPONDENTS

THE LABOUR COMMISSIONER317TH RESPONDENT

Neutral citation:Novanam Limited v Willem Absalom (LC 101/2013) [2014] NALCMD 19 (30 April 2014)

Coram:SMUTS, J

Heard:14 February 2014

Delivered:30 April 2014

Flynote:Appeal against and review of an arbitrator’s award under s 89 of Act 11 of 2007. Entire female workforce on a shift charged after 2.5 tons of fish was removed from a processing plant during their shift. Collective hearings resulting in both supervisors and workers being dismissed. Arbitrator confirming all but one of the supervisors’ dismissals but finding that “collective guilt concept is not only alien to South Africa but also to the Namibian legal system and probably not a good public policy too”. This finding was found to be unsound and that team misconduct can arise. But in this instance the workers owed a duty to their employer not to act against its interest and breached it by either participating in large scale theft or supporting it or by failing to report it at the time or thereafter when called upon to do so. Award set aside. Court also stressing that the expression of a predisposition on the part of an arbitrator in conciliation may amount to disqualifying bias if it gives rise to a reasonable apprehension of bias. Rule 13 of the arbitration and conciliation rules – relating to confidentiality of without prejudice statements at conciliation – does not shield an arbitrator from the consequences of expressing a predisposition during conciliation. Arbitrators should refrain from doing so.

ORDER

The arbitrator’s award is set aside. No order as to costs. The application for review is removed from the roll.

JUDGMENT

SMUTS, J

The appellant which is also the applicant in these dual proceedings has a fish processing plant in Lüderitz. During the course of the night shift on 29-30 June 2012, approximately two and half tons of fish and fish products were removed from the production floor and freezer room to the female ablution blocks and locker room without managerial authorisation and contrary to company rules and hygiene regulations, presumably for the purpose of theft.

The appellant took disciplinary action against a large number of employees employed on that shift in two separate collective hearings, preceded by an earlier disciplinary hearing for 4 employees who indicated that they wanted to plead guilty. The employees are represented by two different trade unions, the Namibia Food and Allied Workers Union (NAFAU) and the Namibia Seamen and Allied Workers Union (NASAWU). A collective hearing was conducted for the workers on the one hand and a separate hearing was held in respect of the supervisors on duty during that fateful shift. A total of 317 employees were dismissed as a consequence of the two collective hearings. Three separate disputes were referred to the office of the Labour Commissioner, challenging these dismissals.

The Labour Commissioner directed that the three separate referrals be joined in a single arbitration hearing. The Labour Commissioner himself acted as the arbitrator and is referred to in this judgment as the arbitrator.

The arbitrator in his award dated 24 May 2013 confirmed the dismissals of all but one of the supervisors, the first respondent. He was the only male employee charged and dismissed by the appellant. He was found to be unfairly dismissed by the arbitrator and his reinstatement was ordered.

The arbitrator however found that all of the workers (excluding the supervisors and referred to as “ordinary employees” in the award) were unfairly dismissed except for three who were found in possession of fish at the time. He ordered their reinstatement from 3 June 2013.

The appellant noted an appeal against the award but also brought a separate application to review and set aside the arbitration award, citing alleged irregularities in the proceedings. The record of the arbitration proceedings was provided in both the appeal and the review application, although the sequence of documents and the resultant pagination differed slightly.

Given the overlap of factual matter and the fact that some of the review grounds are also raised as grounds of appeal, the court enquired whether the two proceedings should be heard together. The parties agreed to that proposal. The parties were also requested by the court to identify portions of the lengthy records which were not necessary or relevant for the purpose of the issues which remained in dispute between them in the appeal and review. The court was however informed in the appellant’s heads of argument that the legal representatives were unable to meet for this purpose.

In addition to the seven lever arch files making up the transcript of and exhibits in the arbitration proceedings and running into more than 3000 pages, the affidavits and annexures in the review application comprise a further 270 pages. The seven volume record of the arbitration proceedings includes a great deal of duplication of matter. It follows that large portions should by agreement have been omitted in the first place when the record was prepared without any request from the court. But this failure to do so has been compounded by the failure on the part of the legal representatives to properly revert to the court as to which portions need not be considered after having been expressly requested to do so. This lack of co-operation with the court, raised in an endeavour to ensure the most effect utilisation of court time, is most unfortunate and unacceptable. In the future, a failure of this nature may have consequences, including a postponement or even striking an appeal from the roll as well as ordering that the legal representatives of the respective party or parties may not claim the wasted costs from their clients. The court may also consider an order against a party failing to co-operate in an exercise of this nature. In the exercise of its discretion, a court may even find that such a failure may constitute vexatiously prosecuting or opposing an appeal, whatever the case may be, for the purpose of s118 of the Labour Act.[footnoteRef:1] [1: Act 11 of 2007.]

Before I turn to the appeal and the review application, another preliminary remark is warranted. Mr Rukoro, who represented the respondents excluding the arbitrator, took the point at the outset of the proceedings that I should dismiss the appeal and the review because the appellant (and applicant) had failed to establish its authority as an artificial person to appeal or bring the review application. This point had not been taken in the answering affidavit in the review application or in the grounds opposing the appeal. Nor was it even taken in the respondents’ heads of argument. I asked Mr Rukoro to point to any rule of this court which requires that such a power of attorney and resolution be provided in order to prosecute an appeal or to bring a review application. He was of course not able to do so because there is none. He instead sought to rely upon authority[footnoteRef:2] in support of his contention that artificial persons are required to establish that proceedings on their behalf are authorised. Neither of the cases relied upon supports Mr Rukoro’s contention. In both of those proceedings, the parties had mounted substantive challenges to the authority of the respective entities in those proceedings. They did so with reference to facts raised in support of those challenges. [2: National Union of Namibian Workers v Naholo 2006 (2) NR 659 (HC), as well as Mall (Cape) (Pty) Ltd v Marino Ko-op Bpk 1957 (2) SA 347 (C).]

In neither of these proceedings has the authority of the appellant or applicant been challenged in any sense at all – not even by a bare denial of authority which would not in any event be effective in doing so.[footnoteRef:3] Even after I pointed out the distinguishing features of the authorities referred to and the fact that this point had not been properly raised, Mr Rukoro nonetheless inexplicably persisted with this point without any tenable basis to do so. He merely said that he had instructions to do so. There is however no basis whatsoever for the point. It only served to cause unnecessary delay in the arguing of the proceedings. This preliminary point pressed by Mr Rukoro is roundly rejected. [3: SWA National Union v Tjozongoro and Others 1985 (1) SA 376 (SWA) at 381D-E, per Strydom, J, as he then was; Nahrungsmittel GmbH v Otto 1991 (4) SA 414 (C) at 418 E-F.]

The scheme of this judgment is as follows. I firstly refer to the factual background which preceded the referral of disputes to the office of the Labour Commissioner and the arbitration. The arbitration proceedings and the award are then referred to. The challenges to the award are briefly set out together with submissions made in support of the positions of the respective parties. The fundamental issue to be determined in this appeal is then discussed. It relates to the question as to whether it would be permissible and, if so, in what circumstances for management when unable to pin-point the perpetrators of misconduct, to dismiss a group of employees which would include the perpetrators. This raises the question as to whether an employer can take disciplinary action against employees for what has been termed as collective or team misconduct. Other aspects raised by the appeal and review are also briefly referred to, in particular the recusal application and whether the rule relating to the confidentiality of statement made at conciliation proceedings can shield a statement by an arbitrator expressing a predisposition in a matter.

Factual background

Some 300 non-supervisory female employees worked on the nightshift on 29-30 June 2012 at the appellant’s processing plant in Lüderitz. During the course of that fateful shift, approximately 2.5 tons of fresh and frozen fish were removed from the production floor and freezer room and taken to the separate female ablution facilities and locker rooms for employees and supervisors. This removal was unauthorized.

It was discovered in the early hours of 30 June 2012. It took some 6 hours to clear the locker rooms and ablution facilities of the fish. All of the fish which had been removed was destroyed because it had become contaminated. It was valued at between N$500 000– N$600 000.

The non-supervisory employees (referred to by the arbitrator as “ordinary employees” and in this judgment interchangeably as the workers or as the employees) who were on duty at that shift were charged with misconduct. The main charge was the unauthorized removal or participation in the removal of the fish products. In the alternative, the employees were charged with being in possession of the fish products without being authorized to have that possession and with the intention to deprive the company of those products. The second main charge was the failure to act in the interest of the employer by failing to prevent other employees from removing the fish products from the production floor to the locker rooms and/or failing to report to the employer the names of the perpetrators who removed or attempted to remove or participated in the removal of the fish products from the production floor to the locker rooms.

Four female employees indicated that they would plead guilty to the charges. One of them, a certain Ms Justine Shindume was found guilty upon her plea and dismissed. She gave evidence at the disciplinary proceedings and at the arbitration. A plea of not guilty was entered in respect of the other three employees. Two were found guilty and dismissed and the remaining employee was found not guilty.

A collective disciplinary hearing was conducted in respect of the remaining 298 female employees. These employees were represented by their respective unions, NAFAU and NASAWU at that collective hearing. The hearing was presided over by Mr J Roux, an external legal practitioner in private practice engaged for that purpose.

Nineteen supervisors were charged separately. A collective enquiry was held in respect of them, also chaired by an external legal practitioner in private practice engaged for that purpose, Mr F Köpplinger.

On 30 August 2012 the employees were all found guilty and their dismissals recommended. The chairperson of that enquiry found that the employees had persisted in non co-operation in identifying the culprits, after notices prominently displayed had requested employees to come forward with information as to the perpetrators. He found that this non co-operation impacted upon their duty to act in the interests of their employer. He also found that the only reasonable inference from the conduct of the employees is that each individual was involved in the removal or failed to prevent or report it or failed to co-operate with the employer to identify the culprits. He then found them guilty of collective or team misconduct and recommended their dismissal.These employees made use of an internal appeal pursuant to their disciplinary procedure. The appeal was heard by another external legal practitioner in private practice, also engaged for that specific purpose, Mr P McNally. Whilst the notice of appeal was not, as he termed it, a model of clarity, he approached that appeal on the basis that the employees attacked the finding of the chairperson in convicting them on the basis of group misconduct without the identity of the individual perpetrators having been established. He then proceeded to canvass the evidence which had been adduced at the hearing. He proceeded to refer to South African authorities on the question of group or team misconduct in an employment setting. He concluded that the respondent had not been able to establish the identity of the individual perpetrators given the “stoic silence” on the part of the employees which had “its sole aim to frustrate, and defy” the (appellant’s) efforts to pinpoint individual perpetrators. He also found that it would have been impossible for the employees not to have noticed 2.5 tons of fish being removed and strewn around haphazardly in the female locker rooms, lockers and gumboots and on the floor of the locker rooms and ablution facilities. He concluded that the large quantity of fish removed from the operations room “inexorably points to the joint involvement of a large number of people” and that the “employees themselves frustrated the efforts of the employer to identify the culprits”. He found that the employees by acting in the manner in which they did, had breached their relationship of trust to their employer and that the sanction of dismissal was justified.

The 19 supervisors were also found guilty of misconduct by Mr Köpplinger and their dismissal recommended. They unsuccessfully appealed to Mr P de Beer, also a legal practitioner in private practice appointed to hear that appeal.

The referrals

Three separate referrals of disputes were made to the office of the Labour Commissioner. Two of these referrals concerned the dismissal of the employees, with each one of those referrals being made by the respective unions on behalf of their members. The first of these referrals was made on 6 December 2012 by NASAWU in respect of 136 employees. It was termed the “Annatolia Shivolo and 135 others” dispute.

On 14 December 2012, NAFAU referred a dispute which was described as “Emilia Thomas and 177 others”, apparently on behalf of 178 employees.

The third dispute was referred to as “Ndahafa Kashidulika and 19 others”. It was in respect of the supervisors. It was referred by NAFAU on their behalf.

It soon becomes apparent that there were more referrals than the total number of employees dismissed. 298 employees were dismissed in their collective hearing as well as 2 other employees who were separately arraigned and found guilty and dismissed. The third employee, Ms Shindume, who had been dismissed, did not refer her dispute. A total of 19 supervisors were dismissed at their disciplinary hearing. The appellant points out that 317 employees were dismissed (although this may not take into account those separately arraigned). Yet the referrals were in respect of 332 employees.

The appellant takes the point in both the appeal and in the review application that the applications for class certification in respect of the employees did not meet the requisites of the rules for arbitration and conciliation. In the NASAU referral, 2 of the 136 persons did not sign authorising statements whilst the signature of a third employee was contested. The complaints raised by the appellant in respect of the other applications for a class certification were more serious. They were both only signed by the union representative and not by the employees.

In response to the class certification applications and referrals, the Labour Commissioner determined a date for the conciliation of all three disputes to take place in a notice dated 2 January 2013. The date set for conciliation was 25 February 2013. He simultaneously issued a separate notice of joinder in which he of his own accord joined the three complaints in a notice of 2 January 2013. He also issued a notice of class complaint on the same date.

The Labour Commissioner as arbitrator subsequently on 15 February 2013 issued a directive to the parties entitled “Information”, stating that should the conciliation fail, then arbitration would commence immediately thereafter to determine the dispute.

The appellant objected to this procedure and referred to Rule 15 of the conciliation and arbitration rules which provides that the Commissioner is to give parties at least 14 days notice of an arbitration hearing unless they agree to a shorter period. A postponement was then sought in respect of the arbitration if it were to proceed immediately after conciliation. The appellant also applied to be legally represented at the arbitration hearing. Both unions objected to that latter application. The application referred to complexity of the issues and that they were of a novel nature. That application was surprisingly refused by the arbitrator, given the nature of the legal issues relating to team misconduct and the duties of the employees which arose, which would have been apparent at an early stage.

The conciliation and arbitration proceedings

The conciliation then commenced on 25 February 2013. In the course of conciliation, the arbitrator then acting as conciliator remarked that the chairpersons of the disciplinary hearing and appeals had relied upon South African case law on derivative misconduct or common purpose. He said that these authorities are not applicable in Namibia and that the doctrine of common purpose was found to have no application in Namibia in a recent judgment delivered in the lengthy Caprivi treason trial. The arbitrator also stated that he had read the minutes of the hearing. The arbitrator also remarked that he only wanted to hear what each individual employee had done in respect of the theft of the fish, given his view that the doctrine of common purpose was not part of Namibian law.

As a consequence of these statements, the appellant made a formal application, by way of notice of motion which was served upon the unions and the arbitrator, for the recusal of the arbitrator. An affidavit in support of that application was made, setting out the statements attributed to the arbitrator and stating that these raised a reasonable apprehension of bias on his part. A concern was also expressed that documentation had been provided to the arbitrator which had not formed part of the referrals to date. The appellant had stated that the minutes of the disciplinary hearing had not formed part of the referrals served upon the appellant. Nor was it referred to as an annexure in those referrals.

When the proceedings commenced on 26 February 2013, the arbitrator refused to entertain the recusal application on the basis that the applicant had not completed the prescribed form for applications, namely Form LC38. This, despite the fact that the notice of motion, although not completed on the form, contained the essential content appearing on that form. The appellant’s representative also objected to the class disputes brought by NAFAU, given the fact that an application for class certification had not been properly made. The arbitrator then adjourned the proceedings to enable the appellant to complete the form for a notice of motion, namely Form LC38 for the recusal application and also afforded NAFAU the opportunity to make application for class certification in respect of the two disputes being handled by that union.

The proceedings resumed on 26 April 2013. The appellant moved its application for recusal which the arbitrator rejected. The arbitrator proceeded with the hearing on the basis of the referrals being certified as class referrals and the arbitrator having joined the referrals.

The appellant in both the appeal and in the review application raised several points concerning the joinder by the arbitrator of the referrals which he had determined already in January 2013 without hearing the parties on that issue, as well as raising non-compliance with various rules concerning the filing of the joint referrals and the manner in which the certification for class referrals had been conducted. It was submitted on behalf of the appellant that the non-compliance with the arbitration and conciliation rules relating to the signatures of parties on the respective forms as well as certain other aspects of non-compliance with the rules constituted vitiating irregularities.

Given the conclusion I have reached in respect of the merits of the appeal, it is not necessary for me to deal with each of the complaints of alleged non-compliance with the rules, save to point out that I recently found that the failure to have signed referral forms would not of its own necessarily constitute a vitiating irregularity.[footnoteRef:4] The mere fact that the rules employ the term “must” would not necessarily mean that non-compliance is automatically visited with the award being a nullity. The purpose of the rule in question would need to be considered together with the mischief it seeks to address in order to assess whether non-compliance with the rule would result in a nullity. Mr Denk who appeared for the appellant, detailed several instances of non-compliance with the rules – certain of which were pointed out to the arbitrator, including the decision to join the referrals which the arbitrator did mero motu. Even though the arbitrator would appear to have been somewhat robust in his conduct of the proceedings, Mr Denk was constrained to agree that the decision to join the referrals was undoubtedly justified and that the appellant was in principle not prejudiced by the joining of the referrals and hearing them together to avoid the duplication of evidence. [4: Purity Manganese v Katjivena and another (LC 86/2012) [2014] NALCMD 10 (26 February 2014); Auto Exec CC v Van Wyk and another (LC 150 / 2013) [2014] NALCMD 16 (16 April 2014).]

The appellant also took the point that as part of the heading of the award, the arbitrator referred to “Emelia Thomas and 297 Others” (instead of 176 others) and that the award was thus a nullity because it involved far more employees than those dismissed. That part of the heading was clearly a typographical error and would certainly not give rise to such an eventuality. I found it surprising that such a submission could have been seriously made. A similar heading had been used by Mr McNally in his ruling on appeal. The arbitrator must have mistakenly taken it from there. As I have indicated, the numbers would not in any event seem to add up. There would appear to be some duplication. This should have been addressed at conciliation and by the latest at the outset of the arbitration by the arbitrator in taking more care to address objections raised by the appellant and properly ensuring that the joint referrals were all duly authorised instead of his cavalier and robust approach to those procedures. His approach may however have arisen because of over fastidious procedural point taking by the appellant. But this would not absolve him from ensuring substantial compliance with the rules and that the referrals before him were all duly authorised.

It would appear to be the practice in arbitration proceedings under the Act that the arbitrators first call upon parties or their representatives to address the arbitrator at the outset on the version which would be put forward by those parties and essentially what their respective positions are with regard to the dispute. The protagonists are then afforded the opportunity to call their witnesses. That procedure was also followed in this arbitration.

The appellant, who was represented by members of its Human Resource Management component (the Human Resource Manager and the Industrial Relations Manager), called 13 witnesses. I do not propose to set out a summary of the testimony of each witness called by the respective parties and by the arbitrator. Some matters emerged as common cause between the parties and I only propose to refer to certain salient features of the evidence of some of the different witnesses.

The appellant’s first witness was the production manager who testified that he was called in the early hours of 30 June 2012 (at around 03h00) to the plant. On arrival, he was shown the ablution facilities of female employees and their locker room. He testified that the area was strewn with fish or frozen fish products in plastic bags in the lockers, on the floor and in rubbish bins. This was also the case in respect of the ablution and locker room facility of the female supervisors. He summoned the head of the security firm engaged by the appellant.

The production manager further testified that an employee, Ms Fedmilk Samuel, took a bag from a locker and, when questioned, stated that it was her food. It turned out to be fish. He was also informed that a certain Ms Justine Shindume had been caught with fish. He enquired from supervisors as to whose fish was in their separate ablution and locker room facility but did not receive any assistance as to establishing that from the supervisors he had questioned. After photographs were taken, he then ordered that the fish be removed and the area be cleaned up. This took several hours and entailed breaking padlocks to enter lockers to remove fish. This process was completed by 09h00. He confirmed that some 2.5 tons of fish were thus found and removed from the ablution facilities of female employees and female supervisors. He also testified that the appellant had never experienced theft of fish on this scale. He stressed that it would have been impossible for the removal of such a huge quantity of fish to have been carried out without being observed by employees and supervisors.

The appellant’s industrial relations manager testified that after the incident, two separate notices were placed at different stages on notice boards of the appellant, requiring employees of the shift in question to come forward with information as to what had occurred and who was involved. These notices had been placed on two separate occasions shortly after the event. He testified that no one came forward with any information. He confirmed that these notices were placed on the notice boards and were prominent for employees to see, being the manner for conveying information to employees. He also said that incentives were not provided to employees. But he considered that it was the obligation of employees to inform the employer about the incident.

Two members of the private security firm also gave evidence. Their evidence confirmed that of the production manager and what was contained in the photographs, depicting how the fish had been strewn in the ablution facilities and had been found in plastic bags and in the lockers and bins. Two other witnesses gave similar evidence.

The appellant also called Ms Shindume who had been caught with fish in her possession by one of the supervisors, Ms Kashidulika. Ms Shindume testified that all the employees were involved in the theft of fish and also implicated Ms Kashidulika. She confirmed that all the employees had removed the fish from the production area and freezing area and taken it to the respective ablution and locker facilities. She did not consider it fair that she alone had been dismissed for the large scale theft. She testified that workers took the fish to their lockers and to the locker room area and that nobody stopped them from doing so. This had started before the meal break and had continued afterwards and had taken place over a period of some time. She emphasized that everybody was involved.

Quite astonishingly, it was put to her in cross-examination by the NASAWU representative that it was incorrect that the other employees had stolen fish and that she was the only one who had done so as it had been found in her possession. This was met with some incredulity on the part of Ms Shindume and she subsequently emphasized that everybody was taking fish including supervisors. When asked for names she stated that she did not know everyone’s names but could confirm that all of the workers were involved in taking fish.

Another witness was called to confirm the state of the ablution blocks when he resumed duty at 06h00 on 30 June 2012. A witness was also called to testify as to the unusual movement involving female employees to and from the ablution facilities that shift. Two different employees had gone 10 and 11 times respectively to the ablution facilities that evening. He gave this evidence with reference to the clocking system used by the appellant.

The chairperson of the disciplinary enquiry for the workers, Mr Roux, gave evidence as to that enquiry. He confirmed that not every employee appeared before him but that they were represented by their unions and this had been by agreement. He stated that each side had called their witnesses and that adjournments were granted when requested and that each party was afforded the opportunity to make concluding submissions. He further stated that there were no objections raised to the nature of the proceedings on the part of the unions and further stated that 2 employees were not represented by the unions. He also gave reasons for his decision of finding the employees guilty on all the charges. He testified that he had also conducted an inspection in loco.

The appellant also called a certain Ms Johannes, a packer employed by it. She had not been on the shift but had shared her locker with Ms V Ndjuulume. She testified that Ms Ndjuulume had informed her that she had placed fish in their locker and had begged her not to report that she had stolen that fish because other employees had also removed fish.

The appellant also called a male worker on duty who stated that he had seen 2 people removing fish and had informed his supervisor. In cross-examination he stated that he had only seen one person taking fish.

Another witness was called by the appellant confirming what Ms Ndjuulume had said to Ms Johannes – in begging her not to telling anyone of her theft.

The NASAWU representative, appearing in the referral by Annatolie Shivolo and others, called 3 witnesses. Ms Shivolo was first called. She confirmed that she had been on duty on the shift in question and was aware that Ms Shindume had been caught with fish. She however denied that she had seen anyone removing fish or was involved in its removal.

The second witness called by NASAWU gave evidence to similar effect. She was on duty but had not seen or was aware of the removal of fish, nor had she participated in it. Under cross-examination, she confirmed that she had left the production area on several occasions but disputed the recording system which had indicated that she had done so 8 times. She said that the turnstile clocking system was not always correct.

The evidence of the third witness called by NASAWU was in similar vein. Ms Amunyela stated that she was unaware of the theft of fish and had not been involved in it. She had also worked at the plate freezer and was the only employee dismissed who had worked in that area.The NAFAU representative called 4 witnesses. The first, Ms Haukongo, confirmed that she worked on the shift and said that she had not seen anyone removing fish but had not worked in the production area. She denied that it was her responsibility to report anyone involved in the theft of fish. She stated that she had been working at the stock packing area and that her fellow employee, a male, had not been dismissed.

The NAFAU representative also called Ms Frieda Johannes. She testified that she had seen fish in bins when knocking off. She however denied being involved in the theft of fish. She confirmed under cross-examination that she shared the same toilets with the female employees on shift. She stated that she had worked at the laundry and did not have a locker in the locker room and was not working in the production area.

The third witness called by NAFAU was Ms Magdalena Matheus. She was likewise on duty and had been dismissed. She stated that no fish was found in her locker and that she had neither seen nor been involved in the removal of any fish. In cross-examination, she was unable to recall how many times she had left the production area using the turnstile but denied that it was very frequent.

Ms Kalungu was also called by NAFAU. She was also on duty and denied that she had removed fish or had seen anyone doing so. She also stated that no fish had been found in her locker but she had seen fish on the floor of the ablution area. She further stated that she worked with frozen fish and not fresh fish.

In the further referral involving the dismissal of supervisors, NAFAU also called witnesses. The first was Ms Kashidulika who testified that there had not been enough supervisors on that specific shift. Despite this, she testified that she wanted to leave her shift early and did not want to work any overtime. She confirmed that she had encountered Ms Shindume in the vicinity of the ablution block who had suspiciously run away from her when she had called after her. Ms Kashidulika discovered that Ms Shindume had fish in her locker and had asked 2 other women to witness that. She said that she endeavoured to call the production manager on 5 occasions without success. This evidence had not been fully canvassed with him in cross-examination on her behalf. She claimed that there was inadequate supervision during that shift and further claimed that she had assisted the appellant in apprehending Ms Shindume but had herself been dismissed instead.

NAFAU also called the first respondent, Mr Wilhelm Absalom who was the only male supervisor charged and ultimately dismissed for the events which occurred during that night shift. He had been on duty but said that his area at the plate freezer had been separated by a partition from the production floor. He said that he had not been caught with any fish and denied removing any and also stated that he had not been negligent and that employees under his supervision had not been charged or dismissed.

After NAFAU had closed its case, the arbitrator decided to summon 3 witnesses, namely Ms Fedmilk Samuel, Ms Charlene Cloete and Mr Eric Andreas. The first of these witnesses was Ms Cloete who had been a supervisor on duty during that shift. She denied involvement in the removal of fish. Under cross-examination she also denied seeing plastic bags containing fish on the floor of the locker rooms.

The second witness called by the arbitrator was Ms Fedmilk Samuel. She stated that no fish had been found in her bag. But under cross-examination she stated that she had taken her handbag to the locker rooms at about 03h30. Her bag was found on the floor and in the vicinity of plastic bags containing fish. But she stated she did not see fish on the floor in the locker rooms as there was normally not any fish or plastic bags in that area. When confronted with the clocking system records showing a high frequency of visits to the ablution facilities, Ms Samuel denied that the recording system was accurate and disputed the frequency in question.

The third witness called by the arbitrator, Mr E Andreas, was a supervisor at the cleaning department. He testified that he encountered Ms Kashidulika with Ms Shindume. He had heard Ms Shindume state that she had not been alone in the removal of fish and that there was more fish in the toilets. She said that the production manager was then called to the processing plant and informed the production manager to inspect the supervisors’ lockers and ablution facility. He confirmed what had been found there. He was then instructed to clean up the area after photographs had been taken. He also confirmed that both fresh and frozen fish had been found in the ablution blocks and that the frozen fish would have come from the gyro and plate freezer areas.

Arbitrator’s award

At the outset of the award, the arbitrator explains his rulings on the two preliminary issues raised, namely the objection to the joinder of the disputes and his rejection of the recusal application. As for the former, he explained that he had listened to the objection and proceeded to explain his decision for the joinder with reference to the applicable rules. He further stated that the issue “was understood and hence cleared there and then”. Given what I have already stated in this regard, I do not propose to further deal with that issue.

The arbitrator referred to the recusal application as being defective. He correctly identified that it had been raised on 2 grounds. The first related to the objection that he had had sight of the disciplinary proceedings. He denied that he had read the minutes of the hearing but said that he had seen the documents entitled “Judgment on Appeal” which had formed part of the referral documents attached to the Shivolo and Others dispute form. He correctly pointed out that this would not constitute a good ground for recusal.

As to the second ground raised with reference to what he had stated, and referred to by himself as his “reservation on collective justice or guilty in a reference to the recent acquittal of some of the Caprivi treason trial suspects”, he pointed out that his reservation had been made at the conciliation meeting which had “no bearing on other proceedings” as “nothing said at the conciliation must be referred thereafter”. He further explained:

‘The conciliation is a meeting without prejudice and therefore confidential discussion which cannot be referred at arbitration. Nothing was placed before me by the (appellant) that there was a consent from other parties to refer to any discussion of the conciliation meeting’ (sic).

He concluded:

‘The application for recusal was also not procedurally sound and profoundly I had not any other interest in these disputes other than to ensure their resolution based on facts and merits thereof. Therefore I brought my open and objective mind to the case ready for persuasion by good, valid and correct evidence and facts’(sic).

As I demonstrate below, the expression of a predisposition on the merits was entirely inappropriate and cannot be cured or excused by the Act or rules promulgated under it. The statement expressed by him also represented an incorrect representation of the law. Not only is the concept of team misconduct part of the law of South Africa, as I point out below, but the doctrine of common purpose also certainly forms part of the law of Namibia, as has been confirmed by the Supreme Court.[footnoteRef:5] The judgment in the Caprivi treason trial (discharging some of the accused at the close of the State’s case) did not affect the position at all. [5: Gurirab and Others v The State (SA 12/2002) unreported 7/2/2008 at [par 37-38] in following S v Safatsa 1988 (1) SA 868 (A); see also Karirao v The State (SA 10/2011) unreported 15 July 2013. See also S v Amalovu 2005 NR 438 (HC (Full Bench).]

The arbitrator confirmed that after the evidence had been heard, he postponed the matter for the parties to put their closing arguments in writing to him and that he had granted an extension for them to do so. With reference to the appellant’s heads of argument, he stated that they were “at times contradictory to evidence in record and full of incorrect inferences in some parts”. The appellant had in its argument raised issues about the certification of class complaints which the arbitrator found to be contradictory. He said that the appellant had attempted to either delay or derail the process by raising “irrelevant, inconsistent and sometime shallow and petty legal formalities (issues) ignoring s 86(7)(a) and (b) of the Labour Act”. He proceeded to point out that the employees had been represented by their duly registered trade unions. He then proceeded to state in the award:

‘Similarly if the respondent’s arguments are to be taken seriously in the same fashion and line of approach, itself was then not properly represented as those purportedly to have represented it were members of its management but not the real owners of the company. Therefore, the respondent’s submission on the above issues must be dismissed as they have no solid grounds to stand on let alone a legal arm to lean on.’(sic) (The arbitrator’s emphasis).

It is not clear what is intended by this. It is of course entirely permissible for management to represent a corporate entity. It is what the Act expressly envisages.[footnoteRef:6] To expect shareholders to represent a corporate entity in proceedings of this nature would in many instance be absurd, especially in the context of large and possibly listed entities, but it would also be in conflict with the Act. [6: Section 89(12)(c) of the Act.]

The arbitrator then turned to the merits of the matter and his analysis of the evidence and contentions.

Although credibility findings were not made in respect of all of the witnesses, the arbitrator stated the following with reference to them:

‘I am grateful to some of the witnesses from both sides (applicants and respondent) who were very much helpful if not truthful, I am also disappointed by some witnesses from all sides too who were less helpful, evasive and possibly lied under oath.’

He then proceeded to correctly find that it could not be accepted that the quantity of fish taken to the ablution and locker room areas would not have been seen by others. He also expressed his dismay that Ms Kashidulika wanted to knock off earlier because she did not want to work overtime in the context of the overall functions of supervisors in being responsible for the control, supervision, discipline and prevention of losses at the factory. He also found that the evidence of Ms Shindume was “more believable” than her supervisors, particularly with reference to the quantity of fish found at the ablution blocks – and that others had been involved.

The arbitrator found that Mr Absalom’s evidence that he had not been working at the production area and had been the only male dismissed from the shift was uncontested. He also referred to Ms Kaalungu who also had testified that she had not been working in production but at quality control and inferred that she had been dismissed purely because she was a female on that shift. He expressed similar sentiments about Ms Amunyela who had worked at the plate freezer.

He proceeded to find that there were too many “unplugged holes” with the “notion of team misconduct” relied upon by the appellant in dismissing the entire female workforce on duty during the shift. In this regard he referred to the failure on the part of the appellant to call upon employees to explain if fish had been found in their lockers or in their gumboots and stated that lockers were identifiable and boots had employee numbers upon them. He also criticised the notices which had been displayed and which had called upon employees to provide information. He said that the respondent could have identified culprits by calling employees to their lockers one by one or in a group. He furthermore questioned whether employees would come forward for fear of victimization and referred to the criticism by NAFAU that there were no mechanisms and procedures in place to protect identities. There was however no evidence that the union had raised this with management at the time.

The arbitrator also declined to accept that employees had “continued in their dishonesty” by failing to identify others.

The arbitrator referred to some of the cases relied upon by the appellant in seeking to justify the dismissals on the grounds of “team misconduct or derivative misconduct”. He applied the one matter to the supervisors, accepting that on the balance of probabilities they would have known or ought to have known that the perpetrators were involved in removing fish from the production floor to outside the production area. Given their duties of monitoring, supervising, controlling, ensuring discipline and reporting misconduct, he found that they had acted negligently and failed to act in circumstances where they should have in the interest of their employer. He correctly pointed out that the position of supervision would presuppose one of trust and responsibility to the employer in ensuring its policies, rules and regulations were upheld.

But he held otherwise with regard to the employees. He found that it was “very difficult if not inappropriate to find the rest “collective guilty” which ended in their mass dismissal”. He found the employees had not been charged individually but had been charged collectively and that this had offended the presumption of innocence and s 33(4) of the Labour Act, presuming that a dismissal is unfair unless the contrary is proven by an employer. He found that their dismissals en masse purely because they were working on the shift and were female, were discriminatory and unjustified. He also found that the clocking system records which had been tendered in evidence had been questioned by the unions for accuracy and reliability and that he had been unpersuaded that the clocking system was accurate. He found that he was only able to confirm the dismissals of Ms Shindume (who had not referred her dispute), Ms Fedmilk Samuel and Ms Ndjuulume who had both been directly implicated in the theft. He also found that the dismissal of Mr Absalom (first respondent) was also unjustified but upheld the dismissals of all other supervisors. He directed the reinstatement of the first respondent and all employees except for the three referred to with effect from 3 June 2013. (His award was dated 24 May 2013).

The appeal

As I have indicated, the appellant raised grounds of appeal (and of review) relating to the signing of the referral forms, the notice of class disputes and the joining of the referrals. I referred to what I have already stated in that regard.

As to the merits, the appellant took issue with the reinstatement of the first respondent. It was pointed out that he was the supervisor at the plate freezer which is part of the production floor, as had been pointed out during the inspection in loco conducted by the arbitrator. It was pointed out that there had been evidence that fish products from the plate freezer had been found in the female ablution facilities. The arbitrator’s finding that no employee under his supervision was dismissed is gainsaid by Ms Amunyela who gave evidence at the arbitration. That finding is that incorrect. It forms the basis of his approach to set aside the first respondents’ dismissal and his reinstatement which fall to be set aside. As to the dismissal of the employees, the appellant referred to the arbitrator’s finding that they had been unfairly dismissed as they should have been individually charged but not collectively so that innocent employees could have been acquitted. It was pointed out that the individual employees had been represented by their unions at those hearings which were conducted in that way by agreement and that they had all elected through their representatives not to testify – except for those few who had.

The gravamen of the appellant’s complaint on the merits is the arbitrator’s finding that the “collective guilt concept is not only alien to South Africa but also the Namibian legal system and probably not a good public policy too.”

The appellant submitted that the respondents had all been employed at the processing facility during this shift, including the freezer area which according to it formed part of that processing facility. The appellant referred to the vast quantity of fish which had been removed – approximating 2.5 tons during that shift. It was further pointed out that employees were requested to come forward with information on the culprits but had declined to do so. It was contended that the identity of the perpetrators had been thus concealed by the employees and that the employees had associated themselves with the misconduct by doing so, even if they had not participated in it. It was further pointed out both with reference to Ms Shindume’s evidence and, as a logical inference, that there would have been wide scale participation in that scale of removal of fish.The appellant also referred to a fiduciary duty of employees or a duty of trust which involved an obligation not to work against their employer’s interest. Mr Denk, who represented the appellant, referred to several authorities in support of this proposition.[footnoteRef:7] n the Daewoo matter, it was held with reference to several authorities that an employee (particularly in the position of the managing director as was the case in that matter) was under a duty to disclose to his employer all material facts which had come to his knowledge or which he knew and that there was also a duty not to make any secret profits at the expense of his employer or take a bribe in any transaction in the course of his employment.[footnoteRef:8] [7: Daewoo Heavy Industries (SA) (Pty) Ltd v Banks and others 2004(4) SA 458 (C); Dell v Seton South Africa (Pty) Ltd and others [2011] 9 BLLR 846 (LAC) at 859 par [50] to [52]; Penta Publication (Pty) Ltd v Schoombee and others [2000] 2 BLLR 199 (LC) 208-209 par [41] to [43]] [8: See also Ganes and another v Telecom Namibia Ltd 2004(3) SA 615 (SCA) at par [25] and [26]]

In the Daewoo matter, the court proceeded to state the following:

‘There is in most, if not all contracts of service, whether it be an employment contract or a contract of agency, an implied fiduciary duty on the part of the employee or agent towards the employer or the principal as the case may be. In Premier Medical and Industrial Equipment (Pty) Ltd v Winkler and Another 1971 (3) SA 866 (W) at 867, Hiemstra J, quoting with approval Hawkins J in Robb v Green [1895] 2 QB 1 at 10 - 11, said as follows at 867H - 868A:

'There can be no doubt that during the currency of his contract of employment the servant owes a fiduciary duty to his master which involves an obligation not to work against his master's interests. It seems to be a self-evident proposition which applies even though there is not an express term in the contract of employment to that effect. It is stated thus in the leading case of Robb v Green (1895) 2 QB 1, per Hawkins J at pp 10 - 11:''I have a very decided opinion that, in the absence of any stipulation to the contrary, there is involved in every contract of service an implied obligation, call it by what name you will, on the servant that he shall perform his duty, especially in these essential respects, namely that he shall honestly and faithfully serve his master; that he shall not abuse his confidence in matters appertaining to his service, and that he shall, by all reasonable means in his power, protect his master's interests in respect to matters confided to him in the course of his service.'''

Mr Denk submitted that in failing to report the incidence of the theft of that huge scale during that shift, and particularly when expressly called upon to do so, the employees had breached their duty to the appellant and persisted in that breach by subsequently failing to inform the applicant regarding the identity of culprits when expressly requested to do so.

Mr Denk further submitted that their conduct amounted to “team misconduct”. In this regard he also referred to and relied upon what was stated by Nugent J in Food and Allied Workers Union and others v Amalgamated Beverage Industries Ltd[footnoteRef:9] which I quote below where it was stated that more may be required of an employee than remaining passive in an investigation or circumstance like the present. [9: [1994] 15 ILJ 1057 (LAC) at 1063.]

That matter had involved an assault on a “scab” driver during a strike which had left him severely injured. Nugent J found that the evidence of the involvement of employees who could not be identified as participants was consistent with an inference that all of those present had either participated in the assault or led their support to it. Nugent J further stated that it was in his view a case where if one or more of the appellants had an innocent explanation they would have tendered it and their failure to do so would be weighed against them.[footnoteRef:10] This reasoning has been applied by this court.[footnoteRef:11] [10: Supre at 1064 D.] [11: Africa Personnel Services (Pty) Ltd v Shipumba and Others 2012(2) NR 718 (LC) at 742, par [93].]

Mr Denk referred to authorities on the issue of “team misconduct” which I will refer to in greater detail below. In short, his submission was that the arbitrator had erred in law in finding that it was a concept foreign to South African and Namibian law and was also not good public policy.

The appellant had not raised the arbitrator’s refusal to recuse himself as a ground of appeal. But this had been raised as one of the grounds to review the award in their review application.

Mr Rukoro represented all of the respondents and thus both unions in making his submissions on their behalf – although they were represented by two separate sets of instructing legal practitioners. Much of his argument was directed at the alleged defects in the proceedings complained of by the appellant. As to the issue of recusal, he merely submitted that “the allegations of bias are not borne out by the facts at all as the arbitrator at times acted within his powers.” I return to this aspect below and the inadequacy of this contention.

On the merits, Mr Rukoro submitted that the appellant had not discharged the onus upon it to establish that the dismissals of the employees had been fair. He also submitted that the appellant had failed to adduce the best evidence at both the internal disciplinary hearings as well as at the arbitration proceedings by not establishing in whose lockers fish had been found and by failing to call upon employees to open their lockers. He submitted that the failure to have done so on the part of the appellant precluded it from relying upon collective misconduct when it had better evidence at its disposal. He submitted that the appellant could not have recourse to secondary and inferior evidence when better evidence was available.

As to the issue of “collective guilt”, Mr Rukoro did not refer to any authority but merely submitted that the appellant had not adduced evidence to prove the guilt of each employee and had departed from the legally permissible path of determining responsibility and “descended to collective guilt which offended the constitutional guarantee of the right to be presumed innocent until proven guilty”.The respondents also took the point in the review application that the arbitrator had not been properly cited in those proceedings because his name had not been separately reflected in the court heading showing that he was a respondent. But he certainly was cited as a respondent in the founding affidavit. He was expressly referred to as the 317th respondent as the Labour Commissioner and cited in his capacity as the arbitrator who had made the award. The application which included the founding affidavit was served upon the Labour Commissioner by way of deputy sheriff. Furthermore, the notice of motion at its end is specifically directed to the Labour Commissioner for service by deputy sheriff, thus indicating that he is a party. Any doubt in this regard would have soon be dispelled with reference to the express statement to this effect in the founding affidavit. There can thus be no substance at all in this point. It was also not taken by the Labour Commissioner himself who, as arbitrator, did not oppose the review application.

The extent of procedural point taking which characterised the proceedings on the part of both sides is in my view unfortunate and is all too frequently encountered in appeals and reviews to this court. The proceedings before arbitrators are statutorily enjoined to be with the minimum of legal formality and rightly so in order to establish and determine competing claims and disputes fairly and quickly.[footnoteRef:12] Lawyers representing parties would do well to need this. [12: See s 86(7) of Act 11 of 2007.]

Although the principle set out in the Daewoo case was applied in that matter to a person occupying the position of managing director, that case and the authorities relied upon make it clear that in all contracts of service there is an implied duty on the part of an employee to his or her employer not to work against the employer’s interest and not abuse the confidence of that employer pertaining to his or her employment and to protect the employer’s interest in respect of matters entrusted to the employee in the course of that service.

That principle in my view applies to the circumstances of this matter. Employees who declined to prevent or report the large scale theft and who declined the repeated invitation to come forward and identify the perpetrators in my view breached that fundamental duty. It is quite clear from the evidence that the removal of such an enormous quantity of fish (2.5 tons) during a single shift from the processing plant to the female ablution facilities and locker rooms would have required large scale participation. This is not only the only reasonable inference to be drawn from the established facts, but there was also direct evidence to this effect by Ms Shindume whose evidence was accepted as credible by the arbitrator. It was not only incumbent upon supervisors to prevent and report on this, but also incumbent upon the employees who worked on that shift. They all owed a duty to their employer not to act against its interests which this large scale theft plainly constituted.

This failure to do any thing about this large scale unlawful and dishonest activity was compounded by the subsequent failure for employees to come forward to provide further information on the incident in circumstances where the workers may reasonably be supposed to have information concerning the guilt. There were two express requests prominently displayed at their workplace enjoining employees to come forward with such information. When this breach of duty is considered in the context of the further facts, namely the large scale removal with the intention to steal and the evidence of Ms Shindume of widespread participation, it gives rise to the inference of participation in the removal on the part of individual employees or that they lent their active support to it by failing not only to prevent it or come forward to provide information concerning it, but also at the hearings to give credible evidence of an exculpatory nature and certainly of their failure not to act against their employer’s interest.

The issue of holding a group of employees responsible in a disciplinary context for misconduct was explained in some detail by Cameron JA in Chauke and others v Lee Service Centre CC t/a Leeson Motors[footnoteRef:13] as follows: [13: 1998 (19) ILJ 1441 (LAC) at par [27] – [34].]

‘[27]The case presents a difficult problem of fair employment practice. Where misconduct necessitating disciplinary action is proved, but management is unable to pinpoint the perpetrator or perpetrators, in what circumstances will it be permissible to dismiss a group of workers which incontestably includes them?

[28]Two different kinds of justification may be advanced for such a dismissal. In Brassey & others The New Labour Law (1987) at 93-5, the situation is posed where one of only two workers is known to be planning major and irreversible destructive action, but management is unable to pinpoint which. Brassey suggests that, if all avenues of investigation have been exhausted, the employer may be entitled to dismiss both.

[29]Such a case involves the dismissal of an indisputably innocent worker. It posits a justification on operational grounds, namely that action is necessary to save the life of the enterprise. That must be distinguished from the second category, where the justification advanced is not operational. It is misconduct. And no innocent workers are involved: management's rationale is that it has sufficient grounds for inferring that the whole group is responsible for or involved in the misconduct.

[30]The present case illustrates the second category. Management did not advance an operational rationale for the dismissal. It charged the 20 workers in the paint-shop and cleaning and polishing sections with misconduct - malicious damage to property - and concluded that they had all been guilty of it. Was this unfair?

[31]In the second category, two lines of justification for a fair dismissal may be postulated. The first is that a worker in the group which includes the perpetrators may be under a duty to assist management in bringing the guilty to book. Where a worker has or may reasonably be supposed to have information concerning the guilty, his or her failure to come forward with the information may itself amount to misconduct. The relationship between employer and employee is in its essentials one of trust and confidence, and, even at common law, conduct clearly inconsistent with that essential warranted termination of employment (Council for Scientific & Industrial Research v Fijen (1996) 17 ILJ 18 (A) at 26D-E). Failure to assist an employer in bringing the guilty to book violates this duty and may itself justify dismissal.

[32]This rationale was suggested, without being decided, in Food & Allied Workers Union & others v Amalgamated Beverage Industries Ltd (1994) 15 ILJ 1057 (LAC) (FAWU v ABI). There a large group of workers had assaulted a 'scab' driver, leaving him severely injured. The company was unable to prove which of those present at the workplace at the time actually perpetrated the assault. All those who had clocked in and who were thus in the vicinity of the incident when it occurred were charged with the assault. None came forward at the workplace hearings or in the Industrial Court to affirm their innocence or to volunteer any evidence about the perpetrators. Nugent J, sitting with assessors John and Satchwell, suggested at 1063B that:

“In the field of industrial relations, it may be that policy considerations require more of an employee than that he merely remained passive in circumstances like the present, and that his failure to assist in an investigation of this sort may in itself justify disciplinary action.”

[33]This approach involves a derived justification, stemming from an employee's failure to offer reasonable assistance in the detection of those actually responsible for the misconduct. Though the dismissal is designed to target the perpetrators of the original misconduct, the justification is wide enough to encompass those innocent of it, but who through their silence make themselves guilty of a derivative violation of trust and confidence.

[34]In FAWU v ABI, the court held that, on an application of evidentiary principles, the failure by any of the workers concerned to give evidence, either in the workplace hearings or in the Industrial Court, justified the inference that all those present at the workplace on that day 'either participated in the assault or lent it their support' (at 1064B-C). There were other inferences compatible with the evidence. But the inference of involvement was the most likely since (at 1064E):

“This is pre-eminently a case in which, had one or more of the appellants had an innocent explanation, they would have tendered it, and in my view their failure to do so must be weighed in the balance against them.”’

The approach of Cameron JA in Chauke has been subsequently followed and further explained in a number of rulings of both arbitrators (including Prof Grogan sitting as one) which have been reported as well as in the Labour Appeal Court and subsequently in the Labour Court in South Africa.[footnoteRef:14] [14: Federal Council of Retail and Allied Workers and Snip Trading (Pty) Ltd (2001) 22 ILJ 1945 (ARB); The Foschini Group v Maidi and others (2010) 31 ILJ 1787 (LAC); National Union of Mineworkers and others and RSA Geological Services (2004) 25 ILJ 410 (ARB).]

Prof Grogan in the Snip Trading award, after referring to the Chauke matter, preferred to describe the misconduct in question as “team misconduct” rather than collective guilt or collective misconduct which refer to situations where a number of employees participate for a common purpose and are then held individually liable. In the context of employees in a small store who are unable to account for the cause of a substantial stock loss, Prof Grogan held:

‘[32]In my view, the species of misconduct upon which the company relies when it calls members of an entire staff to book for a stock loss, though collective in nature, would be better described as 'team misconduct'. Team misconduct is distinguishable from the kind of 'collective misconduct' dealt with in cases such as Chauke, in which the employees concerned were dismissed for industrial sabotage. In cases like Chauke, the employer dismisses a group of workers because it cannot identify the individual perpetrator. 'Team misconduct' is also distinguishable from cases like Nylon Spinners, in which a number of workers simultaneously engage in conduct with a common purpose. In such cases the employer dismisses the group because each member is equally culpable. In cases of 'team misconduct', the employer dismisses a group of workers because responsibility for the collective conduct of the group is indivisible. It is accordingly unnecessary in cases of team misconduct to prove individual culpability, 'derivative misconduct' (see Chauke's case) or common purpose - the three grounds upon which dismissal for collective misconduct can otherwise be justified. In 'team misconduct', the employees are dismissed because as individual components of the group each has culpably failed to ensure that the group complies with a rule or attains a performance standard set by the employer.

[33]Is dismissal for 'team misconduct', in the sense in which that term is used here, inherently unfair? As in many sports, productive and commercial activities often depend for their success, not on the uncoordinated actions of individuals, but on team effort. In such situations, when a group of workers is dismissed, the justification is that each culpably failed to ensure that the team met its obligation. Blame cannot be apportioned among members of the group, as it can in cases where it is known that some of the individuals in the group are innocent. It seems to me that the notion of 'team liability' underlies the line of cases in which it has been held that it is fair to dismiss the entire staff of a branch or store where 'shrinkage' reaches unacceptable levels: see, for example, SACCAWU & others v Cashbuild Ltd [1996] 4 BLLR 457 (IC) at 476H-I; SACCAWU v Pep Stores (1998) 19 ILJ 939 (CCMA) (Pep Stores (2) ); Jacklens & others v Pep Stores (1999) 6 BALR 673 (CCMA) (Pep Stores (3) ); Koopman & others v Snip Trading (unreported CCMA case nos NC4883, 4884 & 4869 dated 2 August 2000); FEDCRAW v Feeture (unreported case no FS4247 dated 12 January 1999); FEDCRAW & others v Snip Trading (unreported CCMA case no NC5054 dated 4 July 2000); FEDCRAW & others v Snip Trading (unreported CCMA case no FS12326 dated 24 March 2000); SACCAWU & others v Shoeland (unreported CCMA case no NP3513 dated 28 November 1998 unreported).’

This approach was endorsed in the Foschini Group matter by the Labour Appeal Court (which, like the Chauke matter, involved 3 judges who, in both matters, were unanimous). In the Foschini matter, the Court also stressed that the failure to assist an employer in bringing the guilty to book would violate the duty on the part of employees to assist an employer in bringing the guilty to book in such circumstances.[footnoteRef:15] [15: Supra at par [47].]

The Labour Appeal Court in South Africa recently endorsed the approach in Chauke.[footnoteRef:16] The court also stressed that an employee may have a duty to assist management and bringing forward information about the wrongdoing of other employees. Applying these principles, the court found that on the facts of that matter that in some instances employees had been unfairly dismissed whilst others had not. [16: MUN v Besent; Grogan NO v RSA Geological Services, Division of De Beers Consolidated Mines Ltd (JA 30/08) [2010] ZALAC 12 (1 June 2010).]

It is accordingly clear that from a survey of these authorities that much would depend upon the facts and circumstances of each specific case whether an inference of misconduct could be drawn in the context of the duty of an employee not to act against his or her employer’s interests.

Plainly, the statement by the arbitrator in his award that the “collective guilt concept is not only alien to South Africa but also to the Namibian legal system and probably not a good public policy too” is unsound and incorrect. He had been referred to most of these authorities cited above. I agree with both Prof Grogan and Revelas JA in the Foschini matter that the notion of “collective guilt” may appear to be repugnant to natural justice when considered in isolation. I however agree with Prof Grogan that the term would better be described as team misconduct and that there would be circumstances, as outlined in his award, which was also endorsed by Revelas JA in the Foschini matter, justifying a dismissal involving a group of workers because responsibility for the collective conduct would be indivisible without necessarily establishing individual culpability. But these cases are clearly to be understood within the context of their specific facts. I further respectfully agree with the approach adopted by Cameron JA in Chauke as well as that of Nugent J in the Amalgamated Beverages case and in particular where the latter held:

‘In the field of industrial relations, it may be that policy considerations require more of an employee than that he merely remain passive in circumstances like the present, and that his failure to assist in an investigation of the sort may in itself justify disciplinary action.’[footnoteRef:17] [17: Supra at p 1063 A.]

Nugent J in the context of that matter held that the failure on the part of the employees to assist in the investigation gave rise to an inference to be drawn from the evidence as a whole that they either participated in the assault or at least supported and encouraged the perpetrators in doing so.[footnoteRef:18] [18: Supra 1063.]

The arbitrator in my view approached the position of the supervisors correctly (except for the case of the first respondent, as already said). Although not expressly stating it, he drew the inference from the facts that they had breached their “duty and responsibility of monitoring supervising, controlling and assuring discipline and of reporting misconduct.” He made this inference by virtue of his finding that those on duty on the production floor “knew or ought to have known the perpetrators in removing the fish from the floor to the outside of production”. He thus found that the charges against them of negligence or failing to act in the interest of their employer had been substantiated.

He proceeded to express the view that “collective guilty concept is not only alien to South Africa but also the Namibian legal system”. He referred to the Snip Trading award where the arbitrator stressed that “the team must be given the opportunity to explain the team’s failure”. He then referred to the position adopted by the supervisors and the knowledge he imputed to them and their duty of trust and correctly found that an employer could not be expected to continue with an employment relationship with them.

Turning to the workers, he made it clear that his approach was “totally different”. He said it would be “very difficult if not inappropriate” to find “collective guilt” in their case. Although individually charged, he said the appellant decided to “troop them to the disciplinary evidence collectively”. He concluded that this offended against the presumption of innocence. But this approach misconstrues the uncontested evidence of Mr Roux who chaired that enquiry. He made it clear that it was collective by agreement and that all those who wished to place their case before him were afforded the opportunity to do. They were furthermore represented by their respective unions which agreed to the procedure. The workers on their advice elected not to make use of the opportunity to explain their own individual positions, particularly in view of the testimony of Ms Shindume both at the disciplinary hearing and at the arbitration that all workers participated in the removal of the fish. It was instead implausibly put to her in cross-examination that the fish found in the ablution facilities was hers. As the chairperson of the appeal hearing found, this suggestion would not merit any serious consideration. But the election not to give credible exculpatory evidence and the suggestion that Ms Shindume had stolen all the fish in the context of the duty not to act against their employers’ interests gives rise to an inference of their participation or at least support for the theft in the circumstances when viewed with their failure to report the theft then and subsequently after being expressly called upon to do so.

The arbitrator does not explain quite why a duty not to act against their employers’ interest would not apply to them, particularly in view of the second charge faced by them and upon which they were found guilty. The arbitrator’s conclusion that their dismissal was not sound in law is itself unsound as a matter of law. Mr Rukoro rightly did not question that the appeal in this regard raised questions of law only.[footnoteRef:19] [19: See Rumingo and others v Van Wyk 1997 NR 102 (HC) at 105 D-E, Visagie v Namibia Development Corporation 1999 NR 219 (HC) at 224 C-H; Nampower V Nantinda LC 38/2008, unreported 22 March 2012.]

Once it is accepted, as it should, that there was at the very least a breach on their part of their duty not to act against their employers’ interest, it would have been in the discretion for the employer to determine an appropriate sanction and a dismissal would in my view not be unreasonable. As was said by this court in the context of sanction with reference to authority:[footnoteRef:20] [20: Africa Personnel Services supra at par [90] and the authorities collected in that paragraph.]

‘[90] Once it is accepted that the respondents were guilty of gross insubordination and given the aggravating features of this matter, it lay within the discretion of the appellant as employer to determine an appropriate sanction. There should only be interference with that sanction if justified on grounds of unreasonableness or unfairness. This approach was reaffirmed by this court in Rössing Uranium Ltd v Georg H von Oppen. In that matter, this court quoted with approval the following extract from Nampak Corrugated Wadeville v Khoza:

'[33] The determination of an appropriate sanction is a matter which is largely within the discretion of the employer. However, this discretion must be exercised fairly. A court should, therefore, not lightly interfere with the sanction imposed by the employer unless the employer acted unfairly in imposing the sanction. The question is not whether the court would have imposed the sanction imposed by the employer, but whether in the circumstances of the case the sanction was reasonable. In judging the reasonableness of the sanction imposed, courts must remember that:

"There is a band of reasonableness within which one employer may reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him then the dismissal must be upheld as fair: even though some other employers may not have dismissed him.”

'British Leyland UK Ltd v Swift [1981] IRLR 91 at 93 para 11.

[34] It seems to me that the correct test to apply in determining whether a dismissal was fair is that enunciated by Lord Denning MR in British UK Ltd v Swift at 93 para 11, which is:

“Was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have reasonably dismissed him, the dismissal was fair.”’

It follows that the arbitrator erred on the questions of law set out in finding that the dismissals of the workers and the first respondent were unsound in law and ordering their reinstatement.

It further follows that the appeal succeeds and the award in favour of the employee respondents is set aside.Given the conclusion I have reached with regard to the appeal, it is not necessary to deal with the review application and I decline to do so except that some observations are warranted on the unsatisfactory manner in which the recusal application was dealt with by the arbitrator.

I have already referred to the two pronged basis for the recusal application. The arbitrator’s knowledge of the appeal rulings, as explained, by him, clearly did not form a basis for his recusal. But the expression of his views on the merits of the matter is another matter entirely. The arbitrator and unions do not dispute that the remarks were made. The arbitrator brushed aside objections on the predisposition he expressed on the merits by saying that nothing stated at conciliation can be referred to thereafter. He presumably relies upon rule 13 of the arbitration and conciliation rules which provides:

‘(1) Conciliation proceedings are private and confidential and are conducted on a "without prejudice" basis.

(2) No person may refer to anything said at conciliation proceedings during any subsequent proceedings, unless the parties agree in writing.

(3) No person, including a conciliator, may be called as a witness during any subsequent proceedings or in any court to give evidence about what transpired during conciliation proceedings, except that disclosure may be ordered by a court-

(a)in the course of adducing evidence in any criminal proceedings; or

(b)when it is in the interests of justice that disclosure be made.’

This rule is to be read subject to s 85(1) which establishes arbitration tribunals as contemplated by Article 12(1)(a) of the Constitution. It is also to be understood in the context of s 86(5) of the Act which requires that unless the dispute referred to an arbitrator has already been conciliated, the arbitrator must attempt to resolve it by conciliation before commencing the arbitration. But if conciliation fails, the arbitrator should begin the arbitration.[footnoteRef:21] [21: Section 86(6).]

Rule 13 deals with the confidentiality of conciliation proceedings to protect statements made on a without prejudice basis from being used against parties in subsequent proceedings. It can never be raised as a shield to preclude statements made by the arbitrator – when acting as a conciliator – which demonstrate bias or at least give rise to a reasonable apprehension of bias by expressing a pre-disposition on the merits of a matter. The privilege is after all that of the parties in making without prejudice statements and offers to explore settlement in an endeavour to resolve the dispute. That is the purpose of Rule 13. It can certainly not be invoked to suppress evidence of bias which would, if established, negate or seriously undermine the fundamental right of a party to a fair hearing as contemplated and protected by Article 12 of the Constitution.

As was made clear by Corbett, CJ in Council of Review, SADF and others v Mönnig and others:[footnoteRef:22] [22: 1992(3) SA 482 (A) at 491 E-F.]

‘The recusal right is derived from a number of rules of natural justice designed to ensure that a person accused before a Court of law should have a fair trial.’

The right to a fair trial is entrenched in Namibia in Article 12 which the legislature has expressly made applicable to arbitration tribunals established under the Act.

Recusal in the context of judicial officers was recently summarised in this court as follows:‘Principles governing recusal applications

[16] The applicant contends that he has a reasonable likelihood or apprehension of bias if I were to preside in the review application. The principles applicable to recusal were, with respect, recently succinctly summarised by the South African Constitutional Court in Bernert v Absa Bank in the following way:

“The apprehension of bias may arise either from the association or interest that the judicial officer has in one of the litigants before the court or from the interest that the judicial officer has in the outcome of the case. Or it may arise from the conduct or utterances by a judicial officer prior to or during proceedings. In all these situations, the judicial officer must ordinarily recuse himself or herself. The apprehension of bias principle reflects the fundamental principle of our Constitution that courts must be independent and impartial. And fundamental to our judicial system is that courts must not only be independent and impartial, but they must be seen to be independent and impartial.

The test for recusal which this Court has adopted is whether there is a reasonable apprehension of bias, in the mind of a reasonable litigant in possession of all the relevant facts, that a judicial officer might not bring an impartial and unprejudiced mind to bear on the resolution of the dispute before the court.”

[17] The court in Bernert then referred to the proper approach to an application for recusal articulated in one of its previous decisions in SARFU and Others v President of South Africa & Others as:

“It follows from the foregoing that the correct approach to this application for the recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

[18] This approach in SARFU was followed and cited with approval in the Supreme Court in Christian v Metropolitan Life Namibia Retirement Annuity Fund and Others and in this court in Christian v Chairman of Namfisa.’

The threshold of a reasonable apprehension of bias as the prerequisite to establish disqualifying bias was authoritatively established in BTR Industries South Africa (Pty) Ltd and others v Metal and Allied Workers Union and another.[footnoteRef:23] That case concerned a recusal application directed at an Industrial Court member in a labour dispute. The court, in a closely reasoned judgment, concluded that the existence of a reasonable suspicion or apprehension of bias satisfies the test for disqualifying bias in such a context. In the course of its judgment, that court quoted with approval[footnoteRef:24] what was stated by the court below in the Mönnig matter:[footnoteRef:25] [23: 1992(3) SA 673 (A) at 690A-695C.] [24: Supra at p 692 H-I.] [25: Mönnig and others v Council of Review and others 1989(4) SA 866 (C).]

‘Since the appearance of impartiality has to do with the public perception of the administration of justice, it is only to be expected that some tribunals will be more vulnerable to suspicion of bias than others. The most vulnerable, I venture to suggest are tribunals – other than courts of law – which have all the attributes of a court of law and are expected by the public to behave exactly as a court of law does. The court martial is, of course, such a tribunal. In fact it is the only tribunal I know of, apart from a court of law, which is competent to impose criminal sanctions. It is, to all intents and purposes, a court which may be presided over by laymen.’

Similar considerations apply to arbitration tribunals established by the Act, given their wide ranging powers whose exercise can only be appealed against on questions of law alone.

As was stressed by the court in BTR,[footnoteRef:26] as a matter of policy, it is important that the public – both employees and employers – should have confidence in the tribunals established to adjudicate their disputes, as contemplated under Article 12 of the Constitution. [26: Supra at p 694 F.]

It is of course a hallowed principle that a judicial officer or in this case an arbitrator should not express a predisposition in a matter to be determined by him. To express one would readily give rise to a reasonable apprehension of bias. The arbitrator unfortunately failed to appreciate the test for disqualifying bias. He wrongly considered it to be actual bias, in giving his assurance in his award that he “brought (his) open and objective mind to the case ready for persuasion by good, valid and correct evidence and facts”. This assurance does not address the predisposition uttered prior to the outset which in fact was confirmed in his approach to the legal questions which were the subject matter of his predisposition. Not only had his statements given rise to a reasonable apprehension of bias exhibiting a less than open mind to the crucial legal issue raised in arbitration, but his award proceeded to confirm that.

If I were not to have upheld the appeal on the merits and set aside the awards, I would have been inclined to set the award aside on review on the grounds of disqualifying bias.

He order which I make in this matter is:

The appeal is upheld and the arbitrator’s award is set aside and the dismissals of the employee respondents are confirmed. The review application is removed from the roll. No order as to costs.

____________

D F SMUTS

Judge

APPEARANCES

APPLICANT/APPELLANT:A Denk

Instructed by LorentzAngula Inc, Windhoek

RESPONDENTS:S Rukoro

Instructed by Sisa Namandje & Co in respect of 1st – 137th Responden