---

“REPORTABLE”

CASE NO.: LCA 41/2002

IN THE LABOUR COURT OF NAMIBIA

In the matter between:

THE PEACE TRUST APPELLANT

and

ERICA BEUKES RESPONDENT

CORAM: DAMASEB, PRESIDENT

Heard on: 8^th January 2008

Delivered on: 22^nd February 2010

JUDGMENT

DAMASEB, P: [1] This is an appeal against the judgment and order of the District Labour Court (DLC) holding that the respondent was unfairly dismissed by the appellant and, for that reason, awarding damages against the appellant. The appellant was ordered to pay the respondent 24 months’ salary.

[2] The appellant, Peace Trust of Namibia (“the Trust” or “employer”) is a charitable Trust dependent for its existence on donor funding and is run by a board of trustees consisting of three persons: Dannie Botha (chairman), Hans Pieters, and Professor Hettie Rose Junius. The main object of the Trust is to assist victims of war in Namibia. For this purpose the Trust created the Peace Centre or the Mental Health Clinic. (In this judgment I will use the expressions “Trust” and “Peace Centre” interchangeably.) In 1999 the Trust’s board of trustees felt the need to employ a person with financial, clinical and administrative skills to manage the Peace Centre and the Mental Health Clinic. It was then that the respondent Ms Erica Beukes (“the complainant”) was employed in September 1999 to ‘‘manage and direct the programmes and projects” of the Peace Centre. She was given the title ‘‘director’’ or “chief executive officer.” On the complainant’s own version, she was engaged “to manage the Trust in general”.

The Pleadings

[3] In her particulars of claim, the complainant complained that she “was dismissed without a valid reason and not in compliance with a fair procedure”. The dismissal took place on 27 July 2000. She elaborated on the complaint as follows:

“During the year, both verbally and in writing I raised serious concerns of mismanagement, mal-administration, and financial irregularity by Board Members. I also raised grievances as to a breach of my contract of employment in that my terms of reference were ignored. I raised grievances that the chairman especially as a layman was destructively and with mal-intent influencing my relationship with the staff and between the centre and the clients and in so doing deliberately destroying the good work of the centre.”

[4] The Trust’s plea denies unfairly dismissing the complainant and it is stated that two of the Trust’s attempts to hold a disciplinary hearing were either not taken advantage of or were frustrated (or disrupted) by the complainant and her representative– thus waiving her right to a disciplinary hearing. The Trust, it is further pleaded, was therefore left with no choice but to dismiss the complainant. It is further stated that it was the complainant’s incompetence and her refusal to carry out the employer’s “reasonable requests and/or directions’’ which necessitated the disciplinary hearings in the first place. As regards the complainant’s allegation that she raised concerns that were not properly addressed, the Trust pleads that the concerns were either addressed or the board’s request to her “to properly formulate her concerns/request” was not heeded.

The judgment of the court a quo

[5] As I understand it, the gravamen of the learned DLC chairperson’s basis for finding in favour of the appellant was that the employer’s accusation that the complainant was incompetent to perform the work for which she was employed, even if true, could not justify the dismissal because the employer failed to provide training to her; it being “expected in law that before an employer dismiss an employee for poor work performance, for the employer to provide an employee with training, instructions, guidance and counseling” (sic). It is obvious to me therefore that the DLC made a finding that the employer failed to train the complainant. The DLC concluded that the employer failed to address the grievances raised by the complainant since February 2000. It also found that the decision to discipline the complainant was not taken by the board of the Trust as a collective, but by the chairman alone (an irregularity according to the trial court). The DLC also found that the employer failed to warn the complainant about her unsatisfactory work performance and also failed to give her “a reasonable period for her to improve on her incompetence” (sic). In the latter respect the DLC concluded that “Ms Beukes did not receive any warning (of that nature) that should she not improve she will be dismissed”.

The grounds of appeal and cross-appeal

[6] The appellant lists 31 grounds of appeal while the respondent’s cross-appeal lists 9 grounds. I take the view that this appeal really is about whether, based on the evidence disclosed on the record, the order by the DLC that the complainant was dismissed without a valid and fair reason in consequence of an unfair disciplinary procedure is sustainable. It is particularly the respondent’s grounds of cross-appeal that amply justify my concern in this case (as I will show later in this judgment) that the DLC failed to make specific findings on the facts that were in dispute before that Court. The DLC’s failure to make specific credibility findings to justify the conclusions of law she came to, immensely compounds this case.

The evidence

1. The Trust

Summary

[7] It is the Trust’s case, disclosed by the evidence of the three board members and an employee who testified at the trial, that the conditions on which the respondent was employed were the following: the project was donor-funded and had no income of its own; being donor-funded the Trust’s ability to generate funds depends on its performance, i.e. the income in a current year depends on its performance the previous year and for that reason the Trust could not guarantee long-term employment to the complainant. The insecurity which this implied was explained to the complainant who stated that she understood the situation, and she pledged, instead, to make the Trust viable to attract donor funds; the complainant would keep politics out of her responsibilities at the Trust, and her husband would not get involved in the activities of the Trust; the complainant would manage the Trust and her employment was linked to her capacity to properly administer and to financially account for the Trust’s activities; the complainant gave the commitment that she was competent to perform the responsibilities she assumed as director, subject to the Trust giving her training in computer skills.

[8] No sooner had the complainant assumed duty and there was bad blood between her and the employer: it is an understatement that the board members were not satisfied with her performance.

Danie Botha

[9] Dannie Botha who was chairman of the board testified at the hearing and gave a rather long and detailed account of the problems encountered at the Peace Centre since the complainant joined: When all is said and done, it is so clear that it was a relationship which was far from cordial. Botha detailed what he and his board felt was the incompetence and insubordination of the complainant. He sought to support the allegations with anecdotal as well as documentary evidence. The allegations range from incompetent minute taking, failure to record financial transactions of moneys entrusted to her, failure to carry out instructions such as writing acceptable reports meant for donors, receiving funds from a donor which was not approved by the board - to pursuing private business interests which impacted negatively on her performance of her official duties.

[10] According to Botha, a specific area in which the complainant was found wanting was competent minute taking of board deliberations. As a result she was asked to improve her minute taking capabilities. As she was unable to type, she was promised help in that respect and Botha was asked by the board to help her with minute taking. According to Botha, the complainant’s inability to perform her work placed a burden on board members who had to do some of her work and this became a source of frustration. Some mentoring was also given to the complainant in the area of bookkeeping. When she began to work on her own she was unable to keep proper books of account and even unable to handle petty cash.

[11] According to Botha, the pre-condition that the respondent’s husband not get involved in the Peace Centre’s activities was breached by the complainant and her husband , as he was at the Peace Centre very often and had access to the Trust’s computers. The complainant’s husband also confronted the Trust’s staff about internal issues and tension began to grow. An effort was made to address the problem with the complainant but her husband then showed up at the home of Botha and hurled obscenities at him.

[12] Botha testified that soon after the complainant started work at the Trust they realized that she had problems with performance and that she displayed a bad attitude towards him and the rest of the board. In a report she submitted on 8 June 2000 to the board (one year after working at the Trust) the complainant stated, inter alia, that she was very scared of the donors because she and her family had very negative experiences with donors. She also stated: “I also earlier had problems with Danie Botha himself because he was an apologist for the killings, torture and jailing in Angola”. In the same document she makes clear that because of that she did not want to work for the Trust but was persuaded by her husband to do so.

[13] Botha also testified that he personally observed the complainant’s husband come to the Centre continuously and create the impression that he worked there. The complainant’s husband would make use of the Trust’s computer and gain access to the Trust’s documents and patients’ information. Botha testified that the complainant’s husband on one occasion confronted Trust staff about internal matters. Botha testified that on 11 May the board met without the complainant to discuss her behavior. A special board meeting was then held on 12 May with all the staff in order to address the problems at the Peace Centre. Botha thought that the problems were thereafter something of the past. The next day the complainant’s husband came to his home and told him to “stop messing with his wife or otherwise we will be in trouble”. Following this, Botha wrote a letter to the complainant and expressed concern about the behavior of her husband. He explained to her that the board would not accept intimidation by her husband. According to Botha, the complainant never answered this letter.

[14] At a board meeting held on 30 May the complainant stated that she lost confidence in the board and wanted an outsider to come and resolve the problems of the Peace Centre. It was then decided that Botha and the complainant make representations to the board. A deadline was given for those submissions. Botha in response thereto filed a document in which he detailed complainant’s alleged failures. By means of that document which he called a “performance appraisal” Botha decided to commence disciplinary proceedings against the complainant. Botha maintains he had the support of the other two board members for the commencement of the disciplinary inquiry against the complainant. The complainant did not submit her “grievance” on the agreed date but did so much later and only after being reminded.

[15] The document is really an indictment against Botha and the Trust’s board members. In it the complainant stated that she had accepted the position of director of the Peace Centre reluctantly in the first place; that the Centre was bedeviled by chaotic administration and irregularities; that the chairman involved himself with the clients of the Peace Centre, and that he undermined the relationship between the complainant and the staff; that there was unclear governance of the Trust and that the employer had not given her clear terms of reference; harassment of the staff by the chairman, and that there was lack of policy and strategic guidelines and generally lack of proper management of the Peace Centre.

[16] It is not in dispute that two disciplinary hearings were convened to adjudicate the charges leveled against the complainant by the chairman. The first was chaired by attorney Peter Keep who was a legal consultant to the board (and also rather loosely referred to as a board member.) The second such hearing was conducted by Ms Shipiki of the Legal Assistance Centre. It is also common cause that neither of those hearings proceeded to consider the merits of the charges against the complainant.

[17] Botha detailed how in his view the complainant and her representative made it impossible for any hearing to take place. After the attempt at a hearing conducted by her failed, Shipiki submitted a letter (received in evidence via Botha) in which she “recused” herself from the hearing saying that the representative of the complainant made it impossible for any hearing to be conducted. The board then began to consider the next step in view of the hearings having stalled. It was during this hiatus that the complainant unleashed an avalanche of accusations against the board to a number of persons and institutions. As Botha put it in his testimony:

“So basically what she did by sending that E-mail, she was cutting the goose (sic) that was laying the eggs for herself in terms of salary, she was cutting the goose that was laying eggs, in terms of delivery of services for the clients of the centre and that made the Board come to the conclusion that Ms Beukes does not have the interest of the centre at heart, she has the interest of herself at heart. Her own vendetta against Board members, against the management of the Board, against myself but definitely the interest of the centre…’’

[18] The tenor of the letter was that the board members were corrupt and that they were mismanaging the affairs of the Peace Centre. Botha testified that the board as a collective took the view that this e-mail by the complainant to the donors was intended to bring the operations of the Trust to an end by the donors withdrawing their financial support. Botha described the e-mail as “defamatory and libelous…in the extreme …causing irreparable damage and confusion among our partners and directly affecting the funding situation of the Centre itself”. As a consequence of this the board dismissed the complainant summarily on 27 July 2000, without having any hearing.

[19] The chairman wrote a letter of dismissal to the complainant in the following terms:

“You were appointed to manage the PEACE Centre by the Board of Trustees of the PEACE TRUST under the clear understanding that it is a donor funded project and that the sustainability of the project itself and at the same time your position and salary as Director, would be dependent on your performance and output as director of the Centre.

Unfortunately, we are now in a position where the donors are not prepared to give us any more funds until the Centre can report properly and truthfully on its activities in a professional manner. You are clearly not capable of doing this as indicated by your refusal to accept any guidelines from the Board and even totally ignoring the reporting format repeatedly requested by the donors. You are not even able to distinguish between the different projects of the Centre in your report (in spite of being advised by the Chairman to do so), and thereby creating the impression that we are completely incompetent.

In spite of various attempts by the Board to raise critical areas of concern about your competence in the administrative, financial and clinical fields, you ignore any attempt to correct or help you and even embark on spreading false and slanderous accusations to donors and others about the Centre and Board members. This action illustrates your disregard for the future of the Centre and its work and the absurd and dangerous levels to which you personalize issues and falsify facts.

Relationship between you and Board and Staff has broken down because you see anyone who does not agree with you or follow your orders as a threat. It is clear to everyone who has been involved with the issue closely that these relationships have suffered irreparable damage.

In the interest of the future of the Centre and its much needed support for war victims, the Board has no other option but to dismiss you with one month’s notice from 1 August 2000. You will be paid your fully monthly salary for the month of August plus the outstanding leave due to you. Please also return all PEACE property forthwith”. (My emphasis)

[20] Botha denied that he corruptly allocated trips to himself as alleged in the 24 May e-mail to the donors by the complainant. He testified that such trips as he undertook were either authorized by the board, were not training trips, or were private trips unrelated to the Trust and paid for by him. Botha testified that allowances paid to board members were approved by the board.

[21] Botha testified that the defamatory e-mail resulted in donors holding back funds, leaving the Trust without funds for operational needs. He reiterated that for the survival of the Trust they had no choice but to dismiss the complainant.

[22] In cross-examination of Botha Mr. Beukes debated at length the “performance appraisal” done by Botha; how it was contrary to the board decision inviting the two protagonists to table their grievances to the board; the illegality of the disciplinary hearing, and Botha’s perceived interference with the work of the complainant. The core allegations that the complainant did not comply with the donors’ reporting requirements and that the board disapproved reports for that reason; that the complainant refused to accept the board’s guidance in meeting the Trust’s obligations according to the donors’ requirements; that the complainant’s husband interfered in the Peace Centre’s activities and also abusively confronted Botha; that the husband of the complainant had access to the Peace Centre’s computer; and that the complainant sent the allegedly defamatory e-mail on 24 July and that it had a negative effect on the funding prospects of the Trust, were either not challenged, or were not shaken in cross-examination.

[23] The next witness for the Trust was Panelope Anne Curling (a psychologist at the medical clinic). She holds a Masters degree in Psychology from the University of Amsterdam and worked at the Peace Centre when the complainant was the director. In her evidence Curling detailed the following problems about the complainant:

- Failing to open files for clients she saw. Complainant did not follow Patient – intake procedures in at least 5 cases Curling knows about. Despite a meeting called to address the issue, complainant still did not keep proper (or kept inadequate) records of patients treated at the Centre while it was her duty to do so.

- Failing to protect the confidentiality of patient information by not locking up filing cabinets, even when specifically reminded to do so.

- Allowing her husband to use the Centre’s computer which had confidential patient information on it. And often the Centre would receive calls for the complainant’s husband although he never worked there.

- Engaging in activities which were unrelated to the objects of the Trust: e.g. homeless people project. She spent the majority of her time on this project at the expense of the Trust’s activities.

- The complainant’s husband once came to the Centre and made a verbal attack against Board chairman, Botha.

[24] Curling also testified that she and others had to assist the complainant with the typing of reports as she was incapable of working independently on the computer.

[25] In cross-examination of Curling Mr Beukes suggested to her that she refused to subject herself to the authority of the complainant to whom she was required to report: For example, she undertook a trip to Frankfurt which was opposed by the complainant. Curling’s response was that although the complainant opposed her going on the trip, she had the approval of the board for the trip, although the complainant as ex officio member of the board did not attend the special board meeting at which Curling was authorized to undertake the Frankfurt trip.

[26] Curling’s evidence that the complainant’s husband interfered in the Peace Centre’s activities, and that the complainant spent most of her time on personal activities unrelated to the Centre was not challenged in cross-examination.

[27] The third witness for the Trust was Professor Sophia Magretha Hedwig Rose-Junius, a member of the Trust’s board. She holds a doctor’s degree in social work. Professor Rose-Junius testified that it was the complainant’s responsibility to write reports for the benefit of the donors if the donors’ continued financial support was to be guaranteed. She testified that as director the complainant was required to write two kinds of reports: the narrative and activity report showing how the Peace Centre had met the requirements set by the donors and, secondly, the financial report.

[28] Professor Rose-Junius testified that report- writing included “professional reports, agendas, minutes, proposals.” She testified that the board experienced problems with the complainant when it came to report-writing. Professor Rose-Junius made reference to contractual obligations which the Peace Centre had with the donors in respect of how the Peace Centre was to report to the donors, including a guideline in the case of one donor. They were also given a deadline in that case for when to report to the donor: That had to be complied with if the donor-funding was to continue. The professor testified, by reference to specific examples, that the complainant was found wanting in meeting the requirements of the donors. The complainant’s failure also resulted in a donor writing letters to the Peace Centre to demand overdue reports.

[29] Professor Rose-Junius testified that the board complained to the complainant about the quality of her report-writing and gave her guidance how to do the work. Professor Rose-Junius testified that she was personally tasked by the board to assist the complainant in report writing as the board “was so concerned that the report writing didn’t go according to expectations and that we are in danger of losing important donors because they did not get measurable and visible outputs…”. As she said: “so we can never say that there was a time that Ms Beukes was left alone unassisted, unguided, unsupported by both board and staff.”

[30] Significantly, the professor testified that she personally talked a lot to the complainant who was well acquainted to her and gave her guidance “because she obviously had trouble with writing meaningful properly reports (sic).” The Prof. testified that the complainant “told me to my face, I am not interested in your guidelines, I will not use that, I will use the guidelines sent to me by IRCT.”

[31] According to Professor Rose-Junius, the board at some stage refused to approve a draft report prepared by the complainant because it did not meet the reporting requirements set down by the donor. Prof. Rose-Junius detailed the frustrations expressed by the donors about not receiving reports on time.

[32] Prof. Rose-Junius also testified that in one report to a donor the complainant stated that the board of the Trust was incapable to “guide the organization”, prompting the Prof. to state to the complainant:

“Ms Beukes you know, you have just, with that sentence, shot yourself in the foot because you tell the donor organization that this Board is worthless, it cannot guide this organization, and this organization paying your salary and the salaries of the other staff, the board are not paid.”

[33] Professor Rose – Junius testified that the complainant also started a gardening and leather project under the auspices of the Peace Centre without the approval of the board, adding that the complainant sourced funds from a donor by misrepresenting facts.

[34] The professor testified that she was closely involved in the process that led to the recruitment of the complainant and denied that she was guaranteed a salary for 3 years irrespective of her performance. Prof. Rose-Junius gave a detailed account of how the overall performance of the Peace Centre improved since the dismissal of the complainant, although initially it took a lot of effort by the chairman and Curling in catching up with work which was not done by the complainant. In the professor’s view, after the complainant’s dismissal, the Peace Centre’s reports went out on time, budgets were discussed, the board meetings had agendas and proper minutes of board meetings were kept.

[35] Prof. Rose-Junius testified that it was generally recognized at the Peace Centre that there was a very serious communication problem between Botha as chairman, and the complainant. This led to the two remaining members of the board inviting the two protagonists to ventilate their problems in writing to the board. They were specifically asked to suggest how the troubled interpersonal relationship between them could be resolved. Botha submitted such report which he termed a “performance appraisal” of the complainant detailing her shortcomings as he saw them. He specifically recommended that the problems were so big that a disciplinary hearing should be held against the complainant. According to the professor, the two neutral members of the board then sanctioned the holding of a disciplinary hearing against the complainant. The complainant also handed in a document as requested by the board on 8^th June. Professor Rose-Junius testified that she and Pieters resolved that a disciplinary hearing against the complainant was the only viable option in the light of the complainant’s statement to her that the chairman was her problem and that he had to leave the organization.

[36] Prof. Rose-Junius conceded that in February 2000, the complainant raised a lot of “grievances” against the board. This was at a meeting held at Daan Viljoen which the professor characterized as an organizational failure as the complainant failed to organize it properly. The grievance, she said, related to a worsening relationship between the complainant and the board.

[37] Prof. Rose-Junius denied that the complainant’s grievances were never dealt with and said they had many meetings at which those complaints were discussed and she was given explanations, for example, why certain documents were kept by the chairman.

[38] Professor Rose-Junius testified that the complainant was dismissed because of (i) the adversarial confrontational approach adopted by her and her representative at the disciplinary hearing, and (ii) the e-mail she wrote to the donors accusing the board of corruption. According to her recollection, the dismissal was authorized by the board members through e-mail and telephone contact and to her recollection no meeting was called for the purpose. As she said: “But we all had a chance to say something about it but I don’t know how exactly we did it.” Professor Junius took the view that the complainant discredited the board and the Peace Centre in the eyes of donors by misrepresenting facts in the e-mail.

[39] The next witness was Hans Pieters, also a member of the Trusts’ board. He had been on the board before the complainant. He said he was a close friend of the Beukeses. He was the one who suggested that the complainant be approached to become the director of the Trust. Pieters testified that he on many occasions tried to reconcile Botha and the complainant.

[40] Pieters confirmed that a meeting was held by the board with the complainant against the backdrop of complaints by donors that the Peace Centre was lagging behind with their reports. Pieters testified that at some stage he offered to assist the complainant with computer skills but that she showed little interest. Pieters confirmed that at a meeting held on 30 May 2000 it was decided that Botha and the complainant make representations for consideration by him and Prof. Rose-Junius, as a basis for action to resolve the personal problems that beset the Peace Centre. By the deadline of 6 June 2000 he had not received the complainant’s representations and she was ‘’very dismissive’’ about the need to make representations. The complainant belatedly submitted the representations on 8 June. He and Prof. Rose-Junius discussed the two documents and eventually decided that a disciplinary hearing be held against the complainant.

[41] It fell on Pieters to hand the notice of the disciplinary hearing to the complainant. When he handed it to her the first time, she refused to accept it. He then handed it to the chairman who passed it on to the complainant. Pieters attended the first hearing and was surprised by the “confrontational manner of the representatives of the Union standing in for Mrs Beukes.” In his view it was a meeting on technicalities as they could not really look at the problems they had. He lamented “I think it was the beginning of a very confrontational style”.

[42] Pieters denied on cross-examination that the complainant was unreasonably denied the Peace Centre’s books when she started work as a director. He specifically denied that the chairman unreasonably denied the complainant access to the books. In cross-examination of Pieters the suggestion was made that it was unfair to accuse the complainant of failing to prepare and deliver reports on time when the information she needed to perform that task was contained in books of finance withheld from her by the chairman, Botha. Pieters maintained that what books there may have been in the possession of others could not have hampered the work of the director as they related to the past financial transactions of the Trust before the complainant got to the Peace Centre, and that it was felt that those who were there before her should attend to the compiling of the reports concerning those transactions.

[43] In cross-examination of Pieters it was established that he had preferred the aborted hearing which was held in the wake of the chairman’s “performance appraisal” not to be a disciplinary hearing but an attempt to resolve the conflictual situation affecting the Peace Centre and involving mainly the chairman and the director. Pieters testified that even if that proceeding found that the complainant was in the wrong he would have “made sure that this is not leading to any punitive or warning action.” In his view, the procedure was intended to resolve the conflictual situation prevailing at the Peace Centre.

[44] Mr. Beukes put to Pieters that the complainant was constructively dismissed by the Centre based on bad faith.

[45] Pieters denied the complainant was guaranteed 3 years’ salary.

[46] In answers to questions by the Court, Pieters testified that the complainant was dismissed by the board of directors. When asked why the complainant was dismissed, Pieters answered: “The why is because we did not have anymore, we were at an impasse. We had a stalemate. The Centre was at a risk of closing down and we could not proceed. The second hearing could also not make any progress and then Mrs Beukes started to write letters to the donors.” (My emphasis)

Although the Court a quo thought otherwise, this was a legitimate answer to the question posed.

[47] Pieters continued:

“My lady, it has become very complicated for me to answer … because at that stage … the thing started to get out our hands. It was more legal people who were involved and it was on legal advice that we had to proceed. Mainly because of … when you write to the donor making allegations that could be detrimental to the existence of that Centre …. It’s like insubordination.” (Emphasis supplied)

[48] Pieters testified that the complainant was dismissed by four members of the board, including him and Mr. Koep. Even in the face of further questioning by the chairperson, Pieters insisted that the dismissal was effected to “save the Centre”. Pieters added pertinently:

“It was an attempt at saving the Centre to be able to proceed because Ms Beukes started to correspond with the donors on fake allegations and those correspondence could lead to the eventual suspension of all support to the Centre.” (My emphasis)

[49] The next witness was Ms Shipike. She presided over the disciplinary hearing of the complainant held on 19 July 2000. The best part of this witness’s evidence is unintelligible as it is said to be “inaudible”. What comes across from the dialogue discernible from the record is that the complainant’s representative raised every objection conceivable to frustrate the progress of the hearing, including questioning the “authenticity” of documents such as the complainant’s job description. She also testified that at some stage the representative demanded all board members to be present before the hearing could proceed but raised objection when board member Prof. Rose-Junius attended. Shipiki denied that she recused herself because she felt she was inexperienced. She stated that she recused herself because it became impossible to get the hearing “off the ground”. She got the impression that the complainant’s representative did not want the hearing to continue.

[50] The net effect of the evidence of Botha, Curling, Junius and Pieters is that the complainant was incompetent, pursued personal and private interests at the expense of the Peace Centre, refused to carry out lawful instructions and, above all, refused to change her ways for the better and at the end - through her email messages to the donors on 24 July- threatened the very existence of the Centre.

[51] Shipiki’s evidence is relevant in so far as it suggests that the disciplinary hearing she was asked to preside over was scuperred by the complainant and her representative.

b. The complainant

[52] The complainant testified on her own behalf. She is a registered nurse. She had worked at the Namibia Breweries from 1990-1999 managing an occupational health centre. It was Pieters mainly who approached her first (and persuaded her) to accept the appointment as director of the Peace Centre. The complainant testified that she demanded security of tenure and a guarantee that her salary would be secure and that she would not run around looking for funds and that she would be allowed to “reach out” to communities with “wider parameters”. She testified that her role as chief executive officer was to “put up the centre, to put up the administrative structure, to put the clinic infrastructure, all the documentation, and administration going with it. And to contact the different institutions and service organizations related to health and specifically mental health.”

[53] The complainant maintained that she had at various times since she assumed office raised grievances with the board but that these were ignored. She testified that the chairman of the Trust kept important financial records about the affairs of the Trust at his home and persistently refused to handover these to her –thus making it impossible for her to perform her functions. She also stated that the board members (particularly Botha and Junius) abused their office by attending conferences on behalf of the Trust which should have been attended by staff members, and that they used the opportunities presented by such trips to visit family. She also alleged that the board members excluded her from an important meeting of the board at which they voted themselves allowances at the expense of the Trust. She also alleged that, especially the chairman interfered in her work as director and that such interference made it impossible for her to carry out her functions and that the chairman involved himself in matters with the Peace Centre’s clients when he should not have.

[54] The complainant was adamant that the chairman undermined her relationships with the staff of the Trust. As regards the alleged failure on her part to prepare reports for donors in time, the complainant maintained that the delays were caused by the chairman’s failure to give her the documentation necessary to perform her functions. She also maintained that the reports she prepared and submitted in the end were fine as far as she was concerned, even if the donors felt that it did not meet their requirements.

[55] The complainant testified that since assuming office she was not fully apprised of the financial position of the Trust. She had early on suggested that a bookkeeper be appointed given the size of the funds which were expected as she wanted to focus on clinical work. She said too much was expected of her while she did not have the support staff to lighten her load. Although the board agreed that she must get help by way of support staff, that never materialized.

[56] According to the complainant, things began to deteriorate from the 29^th January 2000 after the meeting held at Daan Viljoen where she complained about the governance of the Trust and asked the board to follow the International Committee of the Red Cross’ governance model- a proposal rejected out of hand by the board members. She said after the Daan Viljoen meeting Botha seriously undermined her in the performance of her work: She was not allowed to sign cheques and she was not even allowed to have sight of bank statements.

The chairman kept the cheque book, and the correspondence from the bank did not come to the Trust. She protested to certain board members that she could not be expected to run the Peace Centre in those circumstances.

[57] The complainant gave an explanation for why certain reports were late but attributed it to lack of co-operation from the board, especially its chairman, and stated that when she submitted the reports, there was no complaint from the donors. As for those donors in respect of whom she submitted no report, the complainant said it was because source documents relating to their funds were withheld from her.

[58] The complainant testified that she aired grievances early on that proper planning needed to be done and budgets prepared. At every board meeting, she said, she demanded that the financial records and books be brought to the Peace Centre as these were kept by Botha on the pretext that there were certain complications he had to sort out. She even demanded that an independent outsider be brought in because the issue of proper governance became a source of constant quarrel between Botha and her. She testified that running the Peace Centre became a nightmare for her because she was often placed in the position that she could not make payments as the chairman who had to sign cheques was often not available. She also cited a case where the board members met without her and voted themselves allowances and presented her with a fait accompli. Mrs Beukes testified that the chairman at some stage, without the knowledge of other board members and that of the affected donors, bought on behalf of the Trust a house belonging to a friend of his. The evidence on this point leaves one with the impression that the donors were not happy about the chairman acting in that way.

[59] When the problem between the chairman and her became intractable, the complainant testified, it was jointly decided by the board that she and Botha had to make representations to the board about the problems concerning their troubled interpersonal relationship. She was shocked when Botha instead initiated a disciplinary hearing against her. She did not consider the hearing as valid. The complainant denied that her representative obstructed the disciplinary hearing that ensued in the wake of the chairman’s “performance appraisal” of her.

[60] The complainant maintained that the donors expressed dissatisfaction with the format of her reporting but not the content and that after the meeting with them, that issue was resolved. She admitted that an IRCT report which was due on 15 May was submitted on 2 June, but said it was because of obstruction by the chairman and the fact that she was engaged in other equally pressing Peace Centre business involving a foreign delegation from Zimbabwe. The complainant maintained that the chairman was, with the help of the other two members of the board, undermining her work.

[61] When presented in cross-examination with an e-mail message (inappropriately excluded from the evidence by the chairperson of the DLC on the spurious ground it could only be used if it had been first introduced through a witness of the Trust) from a donor (IRCT) expressing dissatisfaction with the report she submitted, and insisting that a report be submitted in the format required by the donor before further funds were released, the complainant testified that had she been present at the Peace Centre at the time (she was suspended by then) she would have told the donor that it was not possible for her to comply with the demand and that it was “not so important to stick to [the donor’s] format”. She then added:

“I am not so defenseless and just take because they are from Europe they are from Denmark. They are Europeans I have to eat up everything. I’ve had discussions with people from Red Cross. They said we cannot be on every issue be dictated by donors. We also have a stand we are an independent nation.

…

It’s only people who are used to be puppets who accept everything.” (Emphasis supplied)

[62] It is clear from the answers the complainant gave in cross-examination that she was aware that the donors were not happy with the format in which she, as director, reported to them, before funds could be released for the Trust’s activities. Her typical refrain was:

“Now what about the content? We are talking about living people, people who need help I was writing about people. People who survived suicide. Suicide survivors, depression these people I was reporting on what about you only talk about the headings and about the format. What about the actual content the actual history of what I’ve done there and the people to some extent under these difficult circumstances actually benefitted? (My emphasis)

[63] Without denying that money was in fact withheld by donors on account of the donor’s dissatisfaction with her report, the complainant said that if she was still at the Peace Centre when this happened, she “would have defended my report and I wouldn’t have begged because it is not in my nature to beg for money that is promised and that is due to the Namibian nation”. (My emphasis)

[64] The complainant also did not dispute that IRCT stopped its funding to the Trust because of their dissatisfaction with the complainant’s report. Her answer was she did the best of her ability and in the face of obstructions by the chairman of the board.

[65] The complainant accepted that on 23 July 2000, after her suspension and before her dismissal on 27 July 2000, she sent an e-mail message to the donors of her employer making allegations against the board members. She said the purpose was to get the donors to “investigate” the allegations. One of the allegations she made in that e-mail was that the chairman improperly allocated to himself and undertook several training trips paid for by the Peace Centre. In cross-examination the complainant could not substantiate the allegation. She, amongst others, made the following specific allegations which are clearly defamatory:

1. the chairman allocated training trips to himself and mixed it with extended holiday trips and visits to his girlfriend in London;

2. The chairman has had neither skills nor any professional training. He rides on other people’s skills.

3. the chairman and Prof. Rose-Junius have very low social consciousness and were typical Dickensian characters who seek out institutions of children and vulnerable people to further their self-seeking ends;

4. the chairman employed a poor pensioned widow as bookkeeper for N$50 per day;

5. Prof. Rose-Junius is always tired to the meetings and as a result important and urgent issues had to stand over. The only time she had energy was when [I] had to arrange her trip to Canada and make financial arrangements.

I have excluded other allegations made in this e-mail in respect of which the argument can be made that the complainant had on previous occasions made reference to in her dealings with the chairman and or the board. That is not to suggest that their truth was accepted. In fact, those allegations were strenuously denied although the DLC did not deal with them in the sense of determining which version the court accepted and why.

[66] The complainant accepted Botha’s allegation that her husband went to the home of Botha to confront him in connection with the complainant’s employment related matters at the Peace centre. She also accepted that her husband made use of the computer of the Trust for personal matters, while not employed by it.

The respective arguments on appeal

[67] The appellant takes the view that the complainant waived her right to a hearing when she and her representative frustrated the hearing; that there was sufficient evidence of her incompetence disclosed in the evidence as shown by: her failure to report to donors timeously and according to donors’ reporting requirements; her failure to keep proper minutes; her administrative and clinical incompetence; her pursuing private interests in the Trust’s time, and her insubordination. In addition the point is made that her slanderous allegations in an e-mail to the donors justified her summary dismissal as her action threatened the existence of the Trust.

[68] The respondent’s principal argument appears to be that there was no valid decision of the board to discipline the complainant, and that the procedure followed in terminating her employment was unfair in that she was not given the opportunity to be heard in respect of whether or not she was guilty of the offence complaint of, as well as in respect of the appropriate sanction to be imposed if found guilty. In his heads of argument, Mr. Maasdorp for the complainant does not make any reference to the allegedly slanderous e-mail which the Trust maintains totally destroyed the basis of a healthy employer/employee relationship between the complainant and the respondent. It is perhaps because of this that Mr Maasdorp did not deal at all with the authorities cited by the respondent’s counsel in support of that proposition.

DLC’s conclusions revisited

[69] The judgment of the DLC is singularly lacking in the reasons for the conclusions to which that court came. A court of law cannot (as was done here) just briefly recite the versions of the parties and then proceed to state that the one party was at fault and should attract liability, without even the slightest attempt being made to show why the version of one side was preferred over that of the other. The judgment of a court of law must set out the court’s reasons for preferring one side’s version over the other’s.¹Apart from the finding that the board of the Trust acted unfairly in terminating the complainant without warning her of the consequences of her actions, and the stated failure of the Trust in not providing the complainant with counseling and guidance to ameliorate her perceived incompetence, the magistrate made no factual or credibility findings whatsoever in a situation where there was so much accusation and counter- accusation between the protagonists on very specific issues. As the DLC made no credibility findings as to who she believed and why on the critical factual disputes that fell for determination, I am left on appeal with the unenviable task of having to make credibility findings without having had the benefit of seeing and hearing the witnesses and to assess their respective credibility. That is a very invidious position for an appeal court to be put in.

[70] I am at a loss how the learned chairperson of the DLC came to the conclusion that the employer failed to warn the complainant, or failed to provide her with training and counseling, without finding in the Trust’s favour that indeed the complainant performed below expectation as alleged by the board members and or that she insubordinated herself as alleged. It was so important for the trial court to make specific findings on those issues. After all, those are the issues that were in dispute. Had she addressed her mind to those issues, the chairperson would have been compelled to consider whether the actions of the complainant after she was suspended – in sending around email making allegations against the board members - justified summary dismissal without the need for a hearing. For example, the issue arose whether a meeting of the board was properly constituted to dismiss the complainant. She took the view there was no such meeting and that the dismissal was done by the chairman. This appears to me to be against the weight of the evidence because all the board members who testified said that they collectively took the decision.

[71] The tenor of Botha’s evidence was that it was the board that dismissed the complainant after she sent out what they perceived as slanderous emails. That was confirmed by professor Rose-Junius and Pieters. The chairperson of the DLC saw the witnesses and observed their demeanor. She was best placed to make a specific finding on that issue. She did not. Yet that finding is so crucial in my view to the outcome of the case. The complainant was employed to manage and run the Peace Centre. The employer accused her of incompetence as, according to them, she could not perform even the most elementary chores such as taking minutes or accounting for petty cash as small as N$900. It is implicit in the DLC chairperson’s findings that the employer had made out a case of incompetence against the complainant. How else could she have come to the conclusion that the employer failed to provide training and guidance to the complainant? If there was no incompetence such training and guidance was not necessary. Much more fundamentally though – and this is what makes it somewhat difficult to make sense of the chairperson’s conclusion - the complainant fought the case on the basis that there was no hearing held and that she was quite competent to perform her functions. The whole cross-examination conducted on her behalf in the court below was aimed at disputing the complainant’s incompetence and insubordination as perceived by her employer.

[72] The notion of conspiracy by the board as a collective against the complainant is difficult to accept. Both Prof. Rose-Junius and Pieters were instrumental in bringing the complainant to the Trust. Pieters in fact saw himself as a friend of the Beukes family. Yet both shared the view that she did not perform her tasks as expected and that her attitude in her official capacity as the director of the Peace Centre was confrontational. They also took the view that the board made attempts to solve the sour interpersonal relationship between the complainant and the chairman but that the complainant was not co-operative. Yet without saying why, the DLC came to the contrary conclusion. The losing party was entitled to know why it lost.

[73] I am satisfied that the DLC’s approach to the evidence was clearly wrong.² I am, therefore, at large to come to a conclusion one way or the other based on the probabilities as I consider emerge from the facts.

[74] In the view that I take of the case, fortunately, it becomes unnecessary for me to make credibility findings in respect of the witnesses that testified as I am able to decide the case on the probabilities arising from the facts that are common cause.

[75] The first question that arises is whether there was a fair procedure preceding the dismissal. The chairperson of the DCL seems to have concluded that there was not. The appellant takes the view that it was the conduct of the complainant that made the holding of an inquiry impossible as her representative raised all manner of irrelevant and unnecessary objections which resulted in the hearing being aborted.

[76] It is quite clear that the disciplinary hearing was going to get nowhere in view of the stance adopted by the complainant and her representative who seemed to have taken the view that a disciplinary hearing could only materialize on their terms. In my view, to argue that the absence of a disciplinary hearing was the fault of the Trust and that it had to take place at all costs is, against the backdrop of the acrimony which characterized this matter, untenable. On the evidence disclosed by the record, I am satisfied that it would have served no productive purpose to pursue a disciplinary hearing against the complainant. The complainant herself stated, and it was put on her behalf to the other side’s witnesses, that the disciplinary hearing initiated by the chairman was illegal. Shipiki testified that during the hearing she chaired it was suggested that the board, not the complainant, had to face disciplinary proceedings.

[77] Even if I am wrong in that view, and it is to be found that the employer should be held responsible for the fact that the disciplinary inquiry against the complainant did not proceed and that as a result there was non- compliance with s45(1) (a) of the Labour Act, 6 of 1992 which states:

“(A)ny employee dismissed , whether or not notice has been given in accordance with any provision of this Act or any term or condition of a contract of employment or a of a collective agreement;

…

without a valid and a fair reason and not in compliance with a fair procedure, shall be regarded to have been dismissed unfairly…’’,

I still have to consider whether notwithstanding such failure, it would be proper on the facts of this case to hold that there was no valid and fair reason for the dismissal.

[78] A court being asked to decide whether or not there was a fair procedure and a valid and fair reason for a dismissal may, if satisfied that the employer proved the existence of a valid and fair reason for a dismissal, refuse to order reinstatement or compensation, even if it is established that no fair procedure preceded the dismissal. The principle was established in Kamanya and Others v Kuiseb Fish Products Ltd³ , where O’Linn J stated it as follows:

“The result in my view is that no order for reinstatement, re-employment or compensation should be made by the District Labour Court against the employer, where the employer has succeeded in proving before it a fair reason for the dismissal, whether or not such employer has proved that a fair procedure was applied before the domestic tribunal. In such a case it will be open to the District Labour Court to find that the employee has not been ‘dismissed unfairly ’.

…

In the alternative, if I am wrong in the above stated view, then in a case where the employer has proved a fair reason for dismissal but has failed to prove a fair procedure, the District Labour Court would be entitled in accordance with s 46(1) (c), not to grant any of the remedies provided for in s 46(1) (a) and (b) but to confirm the dismissal or to decline to make any order.’’

The relevant legal principles impacting on the case in considering if there was a valid and fair reason for the dismissal

[79] It is settled law that a breakdown in the relationship between the employer and employee can lead to dismissal of the employee provided that the employee is the substantial cause of such breakdown. As Grogan observes⁴

“‘Incompatibility’ arises when employees are unable to work in harmony with their colleagues or superiors or subordinates, or to adapt to the ‘corporate culture’ of their companies. The rationale for the dismissal of employees who are unable to work in harmony with their colleagues or superiors or subordinates, or to adapt to the ‘corporate culture’ of their employers, is the right of an employer to expect its employees to adapt to the employer’s norms and standards and to conduct themselves in a manner acceptable to other employees.” (My emphasis)

[80] This is so because the contract of employment contains an implied term that the employee shall not conduct him or herself in a way that causes disharmony and a breakdown in the employment relationship: Council for Scientific & Industrial Research v Fijen (1996) 17 ILJ 18 (A).

[81] Grogan, supra (at p.512) correctly sets out the test for dismissal based on incompatibility in the following terms:

“Did the employee’s conduct cause disharmony or tension in the workplace?

Was the disharmony and tension the result of the employee’s behavior?

Was the disharmony and/or tension irremediable?

Did the disharmony and/or tension have an adverse or potentially adverse effect on the employer’s business?

Was the termination of the employee’s contract the only reasonable way in which the cause of the disharmony and/or tension could be removed?” (See in this regard: Jardine v Tongaat Hullet Sugar Ltd (2002) 23 ILJ 987 (IC).

[82] To justify an employee’s dismissal on the ground of incompatibility the employer must demonstrate that the employee was the substantial cause of the breakdown in their relationship, and that having been afforded the opportunity to mend his or her ways, the employee refused to do so, and that the incompatibility brought about an irreconcilable breakdown in the employer/employee relationship.⁵ It is self-evident that incompatibility must not be used as the pretext for getting rid of an employee who raises legitimate objections against the employer’s conduct.

The law to the facts

[83] I am satisfied on the facts of this case that there was a valid and fair reason for the dismissal of the complainant on 27 July 2000. The following considerations lead me to that conclusion:

1. The admitted position taken by the complainant that the requirements of the donors were irrelevant in the assessment of whether or not she performed her duties as expected was most unreasonable given that the Trust owed its existence to the support of those very donors. The stance she adopted defeated the very raison de etre of the Trust.

2. The vitriolic personal attacks against the board members had the result that it could not have been expected of the board to retain the complainant in her position, regardless of whether or not a fair procedure was followed.

Reasons for the conclusion

[84] In his cross-examination of the Trust’s witnesses, Mr. Beukes sought to establish that (a) Ms Beukes laid grievances with the board about the board’s non-appreciation of her role vis-à-vis the board, including the chairman’s interference and or obstruction of her work, (b) Mrs Beukes made several suggestions at organizational improvement which were ignored by the board, (c) Mrs Beukes was dismissed because she brought her grievances against the board to light. Mr. Beukes devoted no time at all in his rather extensive cross-examination to the following issues: the involvement of the complainant’s husband in the affairs of the Trust; that the complainant engaged in private activities during the Trust’s time ; that the complainant initiated and sourced funds for a project not approved by the board; that the e-mail message sent around to donors and others by the complainant on 24 July were not only defamatory of the board members but threatened the very existence of the Trust.

[85] That the complainant authored the 24 July e-mail to the donors was not denied by her when she testified. In fact, she owned up to it and said it was an attempt on her part to have the Trust’s donors investigate the allegations in it. All the three board members who testified pointed out that it was that document that led to the dismissal of the complainant. In a bizarre twist, Mr. Beukes for the complainant called one L A Cloete as some kind of expert to demonstrate that the letter was a forgery. I place no weight at all on Cloete’s evidence and I am satisfied that the e-mail in question was written by the complainant.

[86] Whatever the rights and wrongs, the litany of accusations and counter -accusations between the complainant and the board make it abundantly clear that the employer/employee relationship had irretrievably broken down; especially because the accusations on the side of the complainant are so personal and cast aspersions on the characters of the board members.

[87] That there was incompatibility between the complainant and the other key players in the Trust is an understatement. Based on the law as I have set it out, I must be satisfied though that she was the source of that incompatibility and that the board’s expectations of her were not unreasonable.

[88] It is clear from the evidence that I have set out at some length that the complainant did not wish to subject herself to the “corporate culture” of the Trust. The complainant was determined not to accept the authority of the board, especially its chairman. That that was the state of mind with which she came to the Peace Centre is evidenced by her letter to the board stating that she never wanted to come and work for the Peace Centre in the first place, and her attack against the chairman as an “apologist of torture and killing”- the very thing that the Peace Centre stood against. The board expected her to perform her functions in keeping with the requirements of the donors - for continued financial support of the donors to the Trust was dependent upon it. She considered compliance with donor requirements optional and, it appears, an irritant. The donors expected full compliance with their reporting requirements and in fact withheld financial support to the Trust. The board’s expectation that the complainant comply with the requirements of the donors in reporting to them was therefore not unreasonable; her refusal to comply therewith was.

[89] In addition, the complainant’s letter to the donors before her dismissal in which she made serious allegations against the board members threatened the very existence of the Trust. It is difficult to imagine how the board of the Trust and the complainant could have worked together after the complainant had sent around the allegations she did to the donors (present and potential). The message sent around accuses the entire board, not just the chairman, of corruption, abuse of positions, immorality, irregularity and every other sin imaginable.

[90] I am satisfied, on a balance of probabilities, that the complainant was substantially responsible for the incompatibility that arose between her and her employer. There was therefore a valid and fair reason for her dismissal on the ground of incompatibility: The incompatibility arises from the complainant’s failure to adapt to the “corporate culture” of the Peace Centre imposed on it by the donors’ reporting requirements and, secondly, her incendiary e-mail sent out on 24 July to the donors which threatened the very survival of the Trust and its activities through the Peace Centre and the Mental Health Clinic.

The order

[91] I make the following order:

1. The Trust’s appeal against the judgment and order of the court a quo succeeds and that judgment and order are set aside and are substituted by the following order:

“The complaint is dismissed”

2. The respondent’s cross appeal is dismissed.

____________________

DAMASEB, P

ON BEHALF OF THE APPELLANT Ms. L Conradie

Instructed by: Legal Assistance Centre

ON BEHALF OF THE RESPONDENT Mr. R Maasdorp

Instructed by: Shikongo Law Chambers

---