THE labour commissioner has ordered the National Petroleum Corporation of Namibia board to pay five former temporary fixed-term workers about N$1,2 million, while about N$182 000 was spent in legal costs.
A board resolution made during a meeting held on 27 November 2017 instructed management, headed by managing director Immanuel Mulunga, to terminate the contracts of 10 workers without giving any valid reasons.
Those whose contracts were terminated in December 2017 are Karina Indongo, Elina Karlos, Wenceslaus Iita, Daisy Ndjavera, Sharon Kavita, Reginalda Kennedy, Tuyenikelao Nangolo, Mwaka Zibiso, Sam Hasheela and Elina Alweendo.
Nangolo, Kavita, Zibiso, Alweendo and Karlos did not pursue the case, while Indongo, Iita, Ndjavera, Kennedy and Hasheela did so.
In a ruling made on Thursday last week, Namcor was ordered to pay
N$648 906 to Hasheela and N$475 768 to Ndjavera, while the order to pay Indongo, Kennedy and Iita a combined N$154, 372 was made in July this year.
According to the ruling, Namcor should settle with the workers before 6 October 2018 and then submit proof of payment to the Office of the Labour Commissioner.
Correspondence seen by The Namibian show that Mulunga informed the Patrick Kauta-led board on 29 November 2017 that a labour law consultant, Frank Kopplinger, had advised against the move.
Mulunga's letter to Kauta dated 29 November 2017 says that Kopplinger had noted that "there is a high risk of litigation and a reputational and financial exposure to Namcor if the board's instruction is to be carried out".
In his response on the same day, Kauta told Mulunga that he should not have sought legal opinion before terminating the contracts.
Kauta wrote that "the board decided that the fixed-term contracts be terminated forthwith".
"Take notice, herewith, that your request for indulgence is hereby refused," Kauta said.
Although Mulunga said he would serve the termination letters on 1 December, he insisted that the board's decision was illegal and that he reserved all rights as the parastatal's managing director to double-check the legality of the move.
"I was prudent as the managing director of Namcor to double-check with our labour lawyer about the legality of the board's decision. In his opinion, the board's action is illegal, and I take note of your instructions for me to proceed despite this knowledge," Mulunga told Kauta.
Kauta insisted that Mulunga should have spoken to him first before seeking a legal opinion on the board's decision, branding Mulunga's move as "an illustration of an antagonistic attitude".
If you intended to act prudently, Kauta told Mulunga, you would have either spoken to me or raised the issue that we should seek a legal opinion.
"Your behaviour further underscores an illustration of your antagonistic attitude towards the board after obtaining the alleged legal opinion.
"You deemed it fit to write to us, rather than alerting us of this as an agenda point. If those letters are not sent out today, the board hereby reserves all its rights," Kauta responded.
During Hasheela and Ndjavera's hearing on 30 July 2018, Kauta argued that Mulunga had appointed the workers without the board's approval.
Kauta also argued that "there was no approved budget" for the positions, and that "in positions where the employees were appointed, they were "absorbing the functions of permanent employees because permanent employees were now made to report to them, which had created discomfort".
However, chief arbitrator Fabiola Katjivena found that the dismissal of the employees was "substantively and procedurally unfair, and in violation of section 33 (1) of the Labour Act of 2007".
"The respondent is represented by an experienced legal practitioner, but did not find it proper to refute a very important piece of evidence, which makes me believe that the respondent is in agreement that the policy existed since 2011; the MD has the right to appoint in terms of the policy, and the previous MD used the same policy for appointment, and there were no problems.
"It is safe to say, maybe the dismissals of the applicants were as a result of the illegal agreement, as by the version of the respondent. But as already said, we are a country that is governed by the rule of law, and if there are any disagreements about the validity of the contracts, like in this instance, the respondent should have approached the applicable tribunals established by law to seek remedy, instead of taking the law into its own hands.
"Having total regard to the circumstances of the dispute, I find that the dismissal of the applicants was substantive and procedurally unfair, in violation of Section 33(1), and if the respondent was of the view that the contracts of applicants were invalid, it should have approached the relevant tribunals established by law to nullify the said contracts," Katjivena stressed.
Mulunga told The Namibian on Saturday that he had nothing to say about the unfolding issues because he was not the one who terminated the contracts.
"I have no comment, please speak to the board," he said.
Public enterprises minister Leone Jooste on Saturday said he would look into the matter.
"If it is found that this was due to negligence, I will make sure that the board members are held personally liable according to the provisions of the Companies Act," he said.
Energy minister Tom Alweendo said he was not familiar with the case.
"However, if it's true that the board went against a legal opinion in taking a decision that led to wastage of company resources, the board ought to be made to reimburse the company," Alweendo said yesterday.
Kauta said he would call back.
The Kauta-led board, which comprises Anna Libana (deputy chairperson), Barbara Omoregie, Lorentha Harases and Dr Roger Swart, has been previously accused of dancing to the tune of former minister of mines and energy, Obeth Kandjoze.
In the labour matter, the dismissed workers were represented by Nelao Shikongo from Sisa Namandje & Co Incorporated, while advocate Ruben Philander from ANSafrica represented Namcor.
Hasheela told The Namibian yesterday that the board had time to resolve the matter amicably but failed.
"We are faced with really serious social issues but yet the directors are wasting government resources on high labour costs" she said, adding that the board members involved should pay the legal fees for making unpopular decisions.
"They wasted taxpayers' money on this, at the end of the day justice has prevailed," Hasheela said.
