The Labour Court this week refused to dismiss a case of unfair labour practice, which was lodged by Uazuava Kaumbi against his current employer, National Housing Enterprise (NHE). An arbitration hearing has since been set for next month. NHE argued that the matter brought before the Labour Court by Kaumbi has already been decided by the High Court and that an arbitrator was prohibited from declining or overruling a judgment of a higher court.
It further argued that Kaumbi’s summary of dispute and relief sought was more of a review application of which the arbitrator has no power to review the decisions of the officials acting in terms of NHE Act. Arbitrator Kyllikki Sihlahla on Wednesday ruled that NHE failed to advance a case regarding the points it raised and in the process dismissed them without making any order on costs. “I am of the view that the Court decided the matter that was before it based on the merits which are materially different from the matter which is currently before the Labour Commissioner. In addition to that I am not aware of any decision interdicting the Labour Commissioner from hearing this matter. This tribunal has a statutory duty to ensure that all disputes referred to it are fairly dealt with, and this is what I am intending to do,” said Sihlahla.
She declined to dismiss the matter as per NHE’s request, saying she will proceed with it [arbitration] to hear the merits. Kaumbi lodged a dispute of unfair labour practice with the Labour Commissioner on 1 June 2016. NHE argued that the unfair labour practice dispute was decided by the High Court when it dismissed Kaumbi’s application in which he wanted the court to stop NHE from appointing a CEO while the Labour Court case is ongoing.
“The argument that the unfair labour practice has been decided by the Court is based on a misreading of the judgment of the Labour Court: A proper reading of the judgment leaves no doubt that the Court only considered the merits in order to determine whether or not it should grant the interdict and not in order to resolve a dispute with which it was not seized,” said Sihlahla. Kaumbi is accusing the NHE of failing to follow agreed promotion policies and procedures. “The applicant does not seek to review an alleged incorrect exercise of statutory powers of the board relating to the appointment of the CEO,” according to court papers filed by Kaumbi’s legal team. Kaumbi is currently employed by NHE as Senior Manager: Technical Services and Property Management.
In the court documents, Kaumbi further argues that the board’s decision not to shortlist him was irregular and in contravention of the NHE’s recruitment and selection policy contained in the NHE’s conditions of employment. Kaumbi maintained that he was denied an opportunity to be promoted to the position of CEO by the board and that the decision to exclude him from competing for the post was unfair as he met the advertised requirements. Sihlahla was adamant that: “For the above reasons, we submit that the points in limine should be dismissed and the matter should speedily proceed to conciliation and arbitration in accordance with the Labour Act.”
The arbitration hearing is set for 19 and 20 September 2016.