Inefficiencies in the Namibian Labour Court's appeal processes continue to cost appellants thousands of Namibian Dollars in unnecessary legal bills with no end in sight.
Delays caused by the failure of the Office of the Labour Commissioner (the "OLC") to adhere to the provisions of the Labour Act, 2007 and the Labour Court Rules continue to result in high legal costs and protracted proceedings for appellants of decisions made by the OLC.
The Labour Act, 2007, and its accompanying rules, regulations, procedures, and forums have been designed and implemented with the aim to assist with the speedy finalisation of labour disputes. If a party is aggrieved with the outcome of an arbitration award, such party has the option to note an appeal within 30 calendar days after the award was received.
The appeal process is guided by the Labour Court Rules and starts with the filing and service of a notice of motion. Thereafter the clock starts ticking and prosecution of the appeal must take place within 90 calendar days from the date of noting of the appeal.
The prosecution of an appeal entails that the full record of proceedings is dispatched by the OLC to the Registrar and the appellant must certify its correctness. To this end, the notice of motion requests the OLC, as an integral role-player in the process, to produce the record of proceedings (referred to as "arbitration hearing records") within 21 calendar days of the noting of an appeal.
Practice: delays and incomplete records
In theory, the ability of an appellant to meet the prescribed timelines appears practically achievable. However, the practical difficulties experienced are undeniable. More often than not the OLC is idle in its obligation to dispatch the record of proceedings – it takes continued and repeated engagement on the part of the appellant with the OLC which may result in additional and unnecessary legal costs being incurred.
Only once the complete record has been filed by the OLC, the lodged appeal may be taken forward. The applicant's ability to prosecute its appeal therefore relies heavily on the OLC's co-operation. Some reasons for the production of incomplete records (or, in some cases, no records) by the OLC include faulty recording equipment, records being lost, inadequate record-keeping in writing, lack of urgency or the dispatching of incomplete records with a certificate of completeness.
Amid all this confusion in the OLC, the appellant is often faced with the looming lapsing of its appeal. As a result, the appellant is required to submit applications for time limit extensions and for the reinstatement of appeals that have already lapsed, which is a costly endeavour. With this, applications to compel the OLC (and the arbitrator) to attend to their duties have become the norm.
The OLC's neglect of its duty therefore renders the appellant, due to no fault of its own, incapable of prosecuting its appeal in time.
Addressing the problem: approaches adopted by the courts
In the judgment of Ohorongo Cement (Pty) Ltd v Chris Kharuxab & Another, Judge Masuku expressed discontentment in respect of the failure of arbitrators to ensure the timely delivery of the record or, even worse, to deliver a transcribed record. The court further noted that the careless approach by arbitrators is tantamount to "a dereliction of duties and feeds injustice in the worst possible manner because the appealing or reviewing court will never really know what took place during the proceedings sought to be impugned". This judgment can be regarded as a call for reform of this aspect in Namibian labour law.
In Lewis Stores Namibia (Proprietary) Limited v Ashley Draghoender*, the court ruled in favour of an application to compel the OLC to produce the complete record of proceedings and also granted a punitive cost order against the OLC and the arbitrator in her personal capacity.
The Labour Court, in B2Gold Namibia (Pty) Ltd v Shitula  NALCMD 42, has also recently noted the practical difficulties that appellants in the labour sphere are faced with and has held that:
- the onus of dispatching the record is upon the OLC, a labour inspector or arbitrator under rule 17(7), and that the "delay in so doing does not lie at the door of the appellant who had timeously noted an appeal";
- the (irrecoverable) costs occasioned by appellants who are necessitated to bring condonation applications, "for the appeal to be kept alive" due to the absence of the record of proceedings is unfair; and
- it would "be useful to engage all stakeholders for the purpose of curing the harsh effects the failure to timeously file a record may visit on appellants in particular".
The court went further to set out six steps that may be taken by arbitrators for purposes of ensuring that the record is delivered timeously which include:
(1) "... arbitrators should ensure that all proceedings are digitally recorded";
(2) "... where an appeal is noted against an arbitral award the officer responsible at the OLC must immediately bring this fact to the attention of the arbitrator concerned";
(3) "the arbitrator ... must immediately cause the full record of the proceedings to be delivered to the office of the transcribers";
(4) "the arbitrator should make efforts to ensure that the record of proceedings is transcribed within the period of 21 days stated in the rules...";
(5) "when a record of proceedings has been dispatched to the Labour Court, the OLC should immediately advise the legal practitioners involved of that fact and without delay"; and
(6) "In the event that the record dispatched to the Labour Court is not complete, the arbitrators should not sign or confirm that the certificate indicating that the record is complete when it is, to their knowledge false".
The way forward
In light of the financial prejudice suffered by appellants in the labour sphere, a reconsideration of the prescribed procedures is required. The various steps suggested in the B2Gold judgment are a good starting point.
In addition, the introduction of sanctions by the Labour Court against the OLC (and its arbitrators in their personal capacity) for the violation of the Labour Court Rules, as ordered by the court in the Lewis decision must be more regularly imposed, considering the financial burden suffered by appellants in rectifying lapsed appeals.
*ENSafrica Namibia acted on behalf of the appellant in this matter.
Reviewed by Ray-wood Rukoro, an Executive at ENSafrica in Namibia.
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