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Swakop Uranium appeals N$3m award

2021-10-01  Roland Routh

Swakop Uranium appeals N$3m award
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Mining company Swakop Uranium has lodged an application for leave to appeal against an award of N$3.6 million for unfair retrenchment by an arbitrator that was confirmed by Windhoek High Court Judge Essi Schimming-Chase in the Labour Court. 

The mine was also ordered to reinstate Jacobus 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. 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. 

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 a formal notice of his retrenchment advising him his position within the mine has become redundant. 

He was also instructed that he is no longer required to report for duty, and 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 that it had a valid commercial business rationale for retrenching Calitz, resulting in his dismissal being both procedurally and substantially unfair. It was ordered that Calitz was entitled to the monetary award and reinstatement. The mine appealed the arbitrator’s finding and argued that the arbitrator was wrong on the facts and evidence to find that the mine used retrenchment as a ruse to get rid of Calitz and to order reinstatement when there was no evidence that reinstatement particularly in the same or a similar position would be an appropriate remedy. 

They also argued that 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 findings, Judge Schimming-Chase said that the findings of the arbitrator cannot be faulted and she dismissed the appeal.    

The mine, not happy with the Labour Court’s ruling, is now
asking for leave to appeal that decision in Namibia’s apex court, the Supreme Court.

According to the mine, they followed the correct procedures in the Labour Act when they retrenched Calitz and the arbitrator was wrong to conclude they had no valid reason for his retrenchment. 

According to them, his position has become redundant and the position he suggested was not suitable to his qualification or was already earmarked for other employees. 

They further claim that reinstatement is not an option, as his position no longer exists in the organisational structure. 

In opposition to the appeal, Calitz maintains that the award by the arbitrator was correctly made and that another court will not come to a different conclusion and prays that the appeal is dismissed. 

The judge postponed the matter to 25 November for the hearing and for further papers to be filed. 

The mine wants to file further papers to amend the application for leave to appeal and Calitz must file his opposing affidavit to the application by 13 October and the mine to file a reply if any by 22 October.

In the event the parties resolve the amendment application before the hearing date, they are ordered to file a joint status report and the hearing will take place on the set down date.

2021-10-01  Roland Routh

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