Maria Amakali
The information ministry has refused to reinstate and pay one of its information officers N$1 million in back pay after the labour commissioner concluded that his dismissal was unfair. The ministry has since appealed the labour commissioner’s ruling in the High Court, citing the commissioner failed to consider all the facts.
In June 2022, the arbitrator concluded that Michael Liswaniso’s dismissal was unfair as there were procedural irregularities and no disciplinary hearing was conducted. Liswaniso was employed as an information officer on 1 October 2016, stationed in Kavango East region. He was placed on probation for a year.
But after his probation came to an end, the ministry opted not to hire him and discharged him on account of misconduct. Liswaniso, despite his work having been ‘satisfactory’, was accused of showing up to work drunk and threatening to kill co-workers and creating a hostile and unsafe work environment. His supervisor recommended for his probation to be extended but it was denied.
According to arbitrator Maiba Sinvula, despite the allegations, there is no record of Liswaniso having been charged. There is also no record of a warning to reprimand his behaviour. “In my view, it is not fair to bring issues of misconduct on termination of a probationer without his knowledge of such misconduct. The law does not permit an ambush, as probation is not a warrant to dismiss an employee,” said Sinvula.
Although an employee on probation can be dismissed for misconduct, they have to be informed of how they transgressed.
The arbitrator ordered Liswaniso’s reinstatement and payment of N$1 046 881.33 for the remuneration he failed to get from the ministry from March 2018 to June 2022.
The ministry, however, views the arbitrator as acting as an employer by giving Liswaniso his job back when he was never guaranteed one as he was on probation.
Furthermore, the probation period does not guarantee any permanent contract, as the employee still needs to prove themselves in conduct and performance. Only then, if such is to the satisfaction of the employer would employment be offered.
The ministry’s lawyer Mkhululi Khupe said the arbitrator was wrong in awarding Liswaniso payment for periods he was not employed by the ministry on any level.
In his defence, Liswaniso, through his lawyer Thomas Appolus, argued he was never found guilty on any charges and was also not afforded the opportunity to give his side of the story.
Appolus said the Labour Act does not differentiate between an employee with a permanent contract and who is on probation.
Thus, the rules for procedural fairness apply to both.
Judge Herman Oosthuizen will give a ruling on 28 April 2023.
-mamakali@nepc.com.na