A former employee of Swakop Uranium was awarded compensation of N$3.6 million for unfair retrenchment.

The mine was also ordered to reinstate Jacobus Calitz in his previous position or at a similar position with similar benefits.

Windhoek High Court acting Judge Esi Schimming-Chase confirmed the award in the Labour Court.

Calitz was employed by the mine as a deputy director and later as deputy director in the project and planning department. 

About a year after his appointment, he was informed that restructuring is taking place and that his role within the company was no longer required. 

He was offered a retrenchment package, which he refused and identified three other positions he could occupy, which the mine refused to consider. 

Thereafter, he was denied access to his workstation and instead instructed to report to the mine’s offices in Swakopmund.

Two days later, he received formal notice of his retrenchment, advising him his position within the mine has become redundant. 

He was also instructed he no longer required to report for duty - and that if he did, he would be charged with trespassing. 

Less than one month after his dismissal, the mine appointed another employee with essentially the same functions he held and with the same subordinates, which led to him approaching the labour office and register a case of unfair dismissal. 

At the end of the hearing, the arbitrator found that the mine failed to show it had a valid commercial business rationale for retrenching Calitz, resulting in his dismissal being procedurally and substantially unfair. 

It was ordered that Calitz was entitled to the monetary award and reinstatement.

Calitz testified that he was employed by the mine in a permanent position as deputy director of projects at the mine from 1 February 2017 until his dismissal on 31 July 2018. 

He further said during March 2018, as the acting head of department projects, he decided to report a perceived risk to the mine’s compliance and risk management audit department with regard to key identified talent and requested more resources within the department.

Soon after his report, the mine appointed one Gao Junli as deputy head projects and one A. van Wyk as head projects, Calitz said. 

He further said he then raised his concern with the mine’s human resources department – in particular with Percy McCallum – that his appointed and acting roles have been unilaterally filled. 

He said McCallum responded that his title remains unchanged. 

Thereafter, he testified; things changed for the worse and he was offered a voluntary separation package, which he refused and indicated he was being victimised for reporting a risk that implicated the mine’s CEO.

The mine appealed the arbitrator’s finding and argued the arbitrator was wrong on the facts and evidence to find the mine used retrenchment as a ruse to get rid of Calitz and to order reinstatement when there was no evidence that it would, particularly in the same or a similar position, would be an appropriate remedy. 

They also argued the arbitrator was wrong by not accepting the mine’s evidence that the position of Calitz no longer formed part of the mine’s structure.

In her verdict, Schimming-Chase said the findings of the arbitrator cannot be faulted and she dismissed the appeal.    

- rrouth@nepc.com.na