Three judges of the Supreme Court of Namibia this week ruled that Jacobus Calitz – an ex-employee of Swakop Uranium – was entitled to N$3.6 million in compensation for unfair dismissal.
After Calitz lost his job at the mine, he instituted proceedings at the Office of the Labour Commissioner, who ordered that he be awarded compensation in that amount for unfair dismissal.
The mine was also ordered to reinstate Calitz in his previous position, or at a similar position with similar benefits.
Calitz was employed by the mine as deputy director in the project and planning department.
However, about a year after his appointment, he was informed that restructuring was taking place, and that his role within the company was no longer required.
Before the Supreme Court’s pronouncement, acting Windhoek High Court Judge Esi Schimming-Chase confirmed the award in the Labour Court after the mine appealed the decision. Still not satisfied, the mine approached the Supreme Court to appeal the award and the reinstatement order.
Appeal Judges Shafimana Ueitele, Dave Smuts and Elton Hoff heard the appeal. Judge Ueitele, who wrote the unanimous judgement, said the main issue to determine is the extent of the damages Calitz suffered, and whether reinstatement is the correct remedy in the circumstances.
According to the judges, fairness must be assessed objectively at trial or in arbitration proceedings, bearing in mind the core objectives of the Labour Act.
Ueitele said the legal position in Namibia is not one where reinstatement is the prime remedy in cases of unfair dismissal, but to determine losses suffered by the affected employee.
“If reinstatement is to be ordered, it may be unfair to Swakop Uranium and to the innocent employee who has taken over Calitz’s job, considering the period it took for this matter to be finalised. It will be unfair, impractical and inappropriate to order Swakop Uranium to reinstate Calitz,” he stated.
However, the judge said, in cases of substantively procedurally unfair dismissal, an employee has the right to fair compensation for losses suffered. But when determining compensation, the court must be fair to both employee and employer.
According to the judge, there is no reason why an employee cannot be fully compensated for the entire period that he has received no remuneration, particularly where he, due to no fault of his own, cannot be reinstated. He further said where an arbitrator has determined an award, the arbitrator’s decision must not readily be interfered with by an appeal court.
However, Ueitele said the arbitrator should have deducted the amount Calitz was paid in pursuance of the termination of his contract and the salary he received as a teacher with Swakopmund High School.
The judges ordered Swakop Uranium to pay Calitz an amount equal to what he would have earned monthly had he not been unfairly dismissed from the date of dismissal, which is from 1 August 2018 to 31 May 2020, and interest on the amount from 26 May 2020.
They further ordered that Calitz must fully disclose to the mine all the income he has received for the stated period because of any employment.
Judge Ueitele further ordered as a mark of disproval of the injustice meted out to Calitz a punitive costs order, the mine to pay the costs of Calitz on an attorney-client scale for two instructed and one instructing counsel.