High Court Judge Nate Ndauendapo has refused an application for leave to appeal to the Supreme Court on his decision ordering the Fisheries Observer Agency (FOA) to pay its employees for work done on Sundays and public holidays.
According to Judge Ndauendapo there are no prospects of success that the Supreme Court would come to a different conclusion.
The FOA lodged the application after Judge Ndauendapo overturned a decision by the Labour Commissioner awarding a dispute between the employees represented by the Namibia Public Workers Union (NAPWU) over unpaid overtime to the FOA on April 20, 2016. In that judgment the judge condoned the late noting of the appeal by the respondent’s legal representative, ordered the re-instatement of the appeal,
set aside the arbitration award and ordered the FOA to pay its employees for Sundays and public holidays worked in terms of sections 21 and 22 of the Labour Act, 11 of 2007.
The FOA now seeks leave to appeal against this judgment on grounds that the Labour Court misdirected itself in that the judge erred in law and/or facts on various grounds. According to the legal counsel for the FOA, C.J. Van Zyl, instructed by Malherbe Associates Inc., the Labour Court misdirected itself in the following respects when it found that NAPWU’s representative Sonny Ndalumbumo only needed to allege that he was duly authorized in order to counter the challenge to his authority and that Ndalumbumo had satisfied such onus.
According to the judge it is clear from the record of proceedings that Ndalumbumo deposed to an affidavit in which he stated that he was the branch organizer and he was authorized to appeal.
On the grounds that Judge Ndauendapo found that NAPWU had given an acceptable explanation for the delay in noting the appeal, the judge said he considered the explanation of both Ndalumbumo and NAPWU’s legal representative, Nelao Shilongo from Sisa Namandje Inc., that they thought the days were calculated from the date the judgment came to the attention of Ndalumbumo.
On the question of his finding NAPWU had shown good cause why the appeal should be reinstated when on the evidence it was clear that NAPWU’s legal representative was from the outset aware that the appeal would lapse, the judge said that to him the explanation was reasonable and NAPWU had good prospects of success on appeal that weighed in its favour.
Where he found that NAPWU produced evidence to show that the provisions of an agreement of 2006 were not binding on the employees as they did not accept the terms thereof, the judge said there was no such evidence to show that the agreement was agreed upon by the employees of FOA.
According to FOA the judge further erred when he found that an agreement reached between the parties in 2006 lapsed when there was no evidence to support such a finding – but Judge Ndauendapo stated the agreement only related to the financial years 2006/2007 and 2008/2009 and the dispute arose in the year 2013.
In the instance where Judge Ndauendapo found FOA should pay its employees for work done on Sundays and public holidays when on the evidence presented NAPWU failed to show that FOA was not paying its employees for the work so done, he stated that by the time the arbitrator made the ruling the 2006 agreement had expired and there was no evidence to show that it was extended.
He further dismissed the grounds of appeal in that while he found there was no evidence the parties were adhering to the 2006 agreement after 2009, the appeal was clearly confined to the record of proceedings, and the correctness or otherwise of the result is to be determined upon what was served before the arbitrator, and although it was found the 2006 agreement had lapsed, on the facts and law such agreement would not have terminated at the end of the 2009 financial year, but would have remained in force until amended or substituted, and in this respect the respondent had the onus throughout but had failed to prove that the provisions of the 2006 agreement were no longer applicable and or that the payments for work done on Sundays and public holidays were no longer included in the calculation of the employees’ basic salaries.
The judge said Sections 20 and 21 of the Labour Act of 2007 make it clear that the employees must be paid for work done on Sundays and public holidays.
According to Judge Ndauendapo there was no evidence placed before the arbitrator to support the argument that the practice of including the payments for work done on Sundays and public holidays as agreed upon during 2009 was still being adhered to.
“The duration of the 2006 agreement was clearly limited to the periods 2006/2007 and 2008/2009. Nowhere in the agreement was it stated that the agreement may be extended beyond that period,” he stated.
Judge Ndauendapo concluded that in his view FOA has no reasonable prospect of success in light of the facts of the case and the applicable law, and the Supreme Court will not come to a different finding.