SWAKOPMUND – Walvis Bay resident Justy Moses was left licking his wounds after he recently had his appeal against Hangana Seafood dismissed with costs in the Supreme Court.
Moses ventilated his dismay to New Era about the outcome, saying some documents were not submitted which could have influenced the outcome in his favour.
“This outcome, according to my understanding, means the high court ruling is also invalid. However, I will have to consult with my lawyer to see what is the next step,” he said.
Moses was dismissed by Hangana in March 2018 after he was found guilty of misconduct, dishonesty, gross negligence and breach of trust. The initial disciplinary proceedings were initiated against him in 2017 after Wynnic Maritime Services, a client of Hangana, reported that Moses had entered into a fraudulent transaction with Shamrock, a company owned by Moses, causing Wynnic to be unable to pay mooring fees to Hangana.
Court documents reveal that Moses entered into a joint venture with two others, including Wynnic, to operate through Lochmar Fishing CC (Lochmar) in respect of a crab and monk fishing quota which was awarded to him in 2017.
“It also transpired that emails were sent by Moses during his working hours concerning the joint venture. Moses had been instrumental in securing his joint venture partner (Wynnic’s principal) to pay a certain Gustav Kaitjirokere N$1. 2 million as a consideration for a fishing licence. Under this arrangement, Kaitjirokere was to supply that licence, given his apparent family connection to the fisheries minister [Bernhardt Esau]. The licence did, however, not materialise, and Wynnic’s principal and his partner lost their money. That gave rise to his complaint to Hangana concerning Moses and bankruptcy, and his statement that Wynnic would, as a consequence of this corrupt transaction, not be able to pay Hangana’s mooring fee of N$120 000,” the court documents state.
As a result, Moses was suspended and ultimately dismissed for failing to declare his interests in the fishing industry which conflicted with his work.
He reported an unfair dismissal dispute to the labour commissioner’s office, as he was not granted ample opportunity to study the case or have a labour representative of his choice.
This resulted in the arbitrator ruling in his favour on 19 February 2019, ordering his reinstatement, together with his
remuneration for the period from dismissal to reinstatement totalling over N$600 000.
However, Hangana appealed against the labour commissioner’s ruling in the Supreme Court in April 2021. Supreme Court Judges of Appeal – Dave Smuts, Sylvester Mainga and Elton Hoff – presided over the matter.
“The Labour Court found that Hangana had a fair and valid reason to dismiss Moses, and that reinstatement should not be ordered for that reason,” court documents on the case read.
According to the ruling, the labour court was correct in finding that dishonesty on the part of Moses and an impermissible conflict of interest were established on a balance of probabilities, and that Hangana had a fair
and valid reason to dismiss him.
“In this instance, Moses’ pursuit of his private business interests competed with his employer, compounded by being with a client of his employer with whom he was involved in an undisputed transaction which appeared to be corrupt. There can be no doubt that Moses’ conduct cast doubt on his ability to act ‘with total objectivity about (Hangana’s) interest’, particularly in light of his failure to disclose his private business interests in the fishing industry,” the ruling states.
The judges reiterated that the labour court was thus correct in finding that Hangana had established a fair and valid reason for Moses’ dismissal, and that the contrary finding by the arbitrator amounted to a question of law in that her decision reached on the facts could not have been reached by a reasonable arbitrator, and is thus subject to the appellate review contemplated by the Act.