APS wins appeal on mass dismissalsBy: WERNER MENGES
THE dismissal of more than 300 employees of labour hire company Africa Personnel Services after their participation in a demonstration at a Walvis Bay fish processing plant two years ago was not unreasonable or unfair, it was ruled in the Labour Court in Windhoek this week.
The ruling was given in a judgement on an appeal by Africa Personnel Services (APS) against labour arbitrators’ decision that APS’s dismissal of 340 members of the Namibia Seamen and Allied Workers Union (Nasawu) had been unfair.
The arbitrators ordered APS to pay each of the former employees a total of ten months’ salary.
The arbitrators’ award, made on March 28 last year, has now been set aside and the 340 employees’ complaint that they had been unfairly dismissed has itself been dismissed.
The 340 workers were dismissed after they had staged a demonstration on the premises of Etale Fishing at Walvis Bay, where they were working while being employed by APS. The demonstration was held after the workers had been told that Etale Fishing had refused to give them permission to do so and APS itself had told them that such a demonstration would be illegal.
The demonstration took place while Nasawu was in discussions with APS in an attempt to have the union recognised as an exclusive bargaining agent.
By proceeding with the demonstration in the face of the instructions not to do so, the workers had made themselves guilty of gross insubordination, Judge Dave Smuts decided in the Labour Court’s judgement.
Gross insubordination is a transgression which would be sufficient to justify dismissal, Judge Smuts said in his judgement.
When a lawful instruction not to proceed with a meeting had been given to the workers and Nasawu, which was the trade union representing them, it was not open to the workers and the union to defy or ignore that, the judge stated.
“They did so at their peril and at peril of facing disciplinary proceedings for their failure to obey that instruction,” he remarked.
“The constitutional order is after all premised upon the rule of law. It is certainly not open to workers, employers or unions to take the law into their own hands,” he stated.
If the union or workers felt aggrieved by the conduct of APS or Etale Fishing, it was open to them to address the issues to the extent that the Labour Act or the Constitution provides them with avenues to do so, he said.
“But it was not open to them to ignore (and indeed defy) a lawful instruction and occupy Etale’s premises and interfere with Etale’s and (APS’s) rights and those of other non-demonstrating employees.”
The workers had a constitutional right to assemble, and this right is foundational to the exercise of their democratic rights, including in the context of hard-won workers’ rights, Judge Smuts said. However, the fundamental freedom to assemble is not unfettered or absolute, but is subject to limitations which must also meet constitutional requirements, he remarked.
The right to assemble and demonstrate is only protected under the Constitution if it is peaceful, and violent or unlawful conduct directed at others is the direct opposite of constitutional values, Judge Smuts said.
The demonstration at Etale Fishing’s premises turned unruly when APS swiftly suspended its entire workforce which had been placed at Etale Fishing – numbering 624 people, and including 340 Nasawu members – and thereafter tried to place other workers at the company’s factory, where fresh fish was waiting to be processed.
When the replacement workers arrived at the factory in a bus, the demonstrators – or at least some of them – pelted the bus with stones and bottles, injuring the bus driver in the process.
APS obtained an urgent court interdict against the demonstrators on March 11 2010, and the demonstrators finally dispersed the next day.
Disciplinary proceedings against them followed, and they were later found guilty on five disciplinary charges and dismissed. The workers appealed against the finding of the chairperson of their disciplinary hearing, but their appeal was also dismissed.
They then lodged a complaint with the Office of the Labour Commissioner, and arbitrators ruled in their favour on March 28 last year.
Sakeus Akweenda represented the 340 dismissed workers in the appeal in the Labour Court. Senior counsel Raymond Heathcote and Beatrix van der Merwe represented APS.