Windhoek High Court Judge Esi Schimming-Chase rejected an appeal by the Namibian Standards Institution (NSI) to stay the execution of an arbitration award, pending an appeal against the award in the High Court.
After she was summarily dismissed by the NSI for “poor work performance” in 2020, where she was employed as an executive assistant, Gertrude Haukongo took the institution to the Labour Commissioner for unfair dismissal. When conciliation failed, the parties proceeded to arbitration – and the arbitrator, Ndateela Hamukwaya, ordered reinstatement and a monetary award of N$228 000 in the absence of the NSI.
The NSI then applied for a recission order of the award, which was denied – and they then approached the Labour Court to appeal the arbitrator’s award and the rescission dismissal.
When Haukongo wanted to execute the arbitration order and a failure of settlement negotiations, the NSI launched an urgent application to the Labour Court to state the effect of the arbitration award pending finalisation of the appeal. They argued they would suffer irreparable harm if the order was executed in that they have serious prospects of success on appeal. According to the NSI, should they comply with the order and pay Haukongo the monetary award, they would lose that money should the appeal go their way, as Haukongo would not be in a position to repay it.
The NSI claims the dismissal of Haukongo was procedurally and substantively fair – and as such, it stands a good chance to be vindicated through the appeal.
Haukongo, through her lawyer, Appolos Shimakeleni, argued she is facing irreparable harm if the execution of the order is stayed, as she has already lost everything; she is bound to lose her house and her vehicle, and she will be unable to care for her children.
She said that because of the failure of the NSI to comply with the arbitration order, she has fallen into debt – and if reinstated and paid compensation, in terms of the award, she would be able to continue making payments on her home and vehicle, which would then not be repossessed.
Haukongo further said the NSI did not provide her the opportunity to improve her education, despite promising her an opportunity to do so.
She further said in the 12 years she worked at the NSI, she never received any complaints or claims; the institution knew she did not have a Grade 12 certificate, which she said suddenly became a problem after 12 years when she had a meeting with the general manager of NSI.
She further claims that assertions by the NSI that the working relationship broke down due to a lack of trust between her and her superiors are incorrect.
Judge Schimming-Chase found it is clear that Haukongo will suffer significantly more prejudice and irreparable harm than the NSI if the execution of the award is stayed, and noted the NSI has not made out a case for the stay of the execution award in the circumstances.
Judge Schimming-Chase did not make an order for costs.
The NSI was represented by Dillon Quickfall, instructed by Köpplinger Boltman, and Haukongo by Tuhafeni Muhongo, instructed by Appolos Shimakeleni.