WALVIS BAY – Swakop Uranium must pay over N$425 000 for loss of income and reinstate a senior operator after the High Court upheld a decision against them over a week ago.
The absence of the employee, George Camm, from work between 13 August 2021 and 3 September 2021 led to his dismissal after the company accused him of not informing his supervisor of his whereabouts and breaching internal Covid-19 measures.
Camm lodged internal appeals against this decision, all of which were unsuccessful.
Subsequently, he referred the dispute to the Labour Commissioner’s Office, which declared his dismissal unfair.
Court documents reviewed by this journalist reveal that the arbitrator, after evaluating and assessing the evidence placed before him, found there was no valid or fair reason to find Camm guilty on the first charge.
This is because there was a ‘sick note showing that the employee was booked off from 13-19 August 2021 for medical reasons. “The arbitrator also found that there is evidence that there was communication via cell phone text messages between the respondent and his supervisor during the period of 14 and 15 August 2021, which is indicative that the supervisor was aware that the respondent would not show up for work during the period of 16 and 17 August 2021.
“The arbitrator, therefore, concluded that there was no basis in law for the dismissal of the respondent since the charges at the disciplinary hearing were not proved,” court documents state.
As a result, the arbitrator, in a ruling dated 25 April last year, found Camm’s dismissal substantively and procedurally unfair, and ordered that Swakop Uranium reinstates Camm from 1 June 2023, and to compensate him for 12 months’ loss of income, totalling N$425 069.
However, Swakop Uranium appealed against the ruling, contesting the arbitrator’s findings.
The mining giant argued the dismissal was justified, and that Camm had not
adequately mitigated his losses. Additionally, they claimed that reinstating Camm was impractical because his position has been filled, and there are no alternative positions available.
However, the court found that the arbitrator’s decision was justified by the evidence presented, and consequently dismissed Swakop Uranium’s appeal.
High Court Judge Boas Uusiku also found that the evidence presented did not support the company’s actions, and that Camm’s dismissal lacked a valid and fair reason.
Furthermore, Uusiku deemed the award of compensation and reinstatement appropriate, given the circumstances.
“The court finds that the arbitrator’s findings and award are justified by the evidence which was placed before him. For that reason, the court dismisses the appeal. The evidence on record shows that the respondent did not report for work on 16 and 17 August 2021, because he was medically booked off.
“The respondent informed his supervisor about being booked off on 25 August 2021 when he sent a copy of the medical certificate to the supervisor via WhatsApp. For a foregoing reason, I cannot fault the finding of the arbitrator that the respondent’s dismissal was substantively unfair, and this dismisses the appeal,” Usiku said in his ruling.
– edeklerk@nepc.com.na