TransNamib Holdings Ltd v Neshiko and Another (HC-MD-LAB-APP-AAA-2022/00061) [2023] NALCMD 16 (5 April 2023)

Key Facts

Issues

• TransNamib failed to demonstrate reasonable prospects of success on appeal, as the court could not assess the evidence due to the absence of a written record of proceedings. The applicant’s arguments about procedural errors and the arbitrator’s misdirection were deemed unsubstantiated.
• TransNamib argued that the employee’s misconduct (abusive language, false evidence) caused an irreparable breakdown of trust, making reinstatement impractical. The court rejected this, noting the dispute was personal (directed at a specific manager) and insufficient evidence of systemic trust erosion.
• The court addressed whether the appeal chairperson exceeded their authority by increasing the penalty to dismissal, violating TransNamib’s internal policies that prohibit appeal tribunals from imposing harsher sanctions. The judgment found the employer’s failure to adhere to this policy further weakened its appeal prospects.
• The court evaluated whether staying the arbitration award (ordering reinstatement and compensation) would cause irreparable harm to the employee (Mr. Neshiko), who had been unemployed for 12 years after dismissal. The judgment concluded that the employee’s financial hardship and lack of income justified prioritizing his interests over the employer’s appeal.

Holdings

• The court ordered immediate payment of N$269,850 compensation into a legal practitioners' trust account and reinstatement of the respondent in the same or comparable position by 17 April 2023.
• No costs order was made in the matter.
• The applicant failed to discharge its onus to prove reasonable prospects of success on appeal. No record of proceedings was presented, and no facts justified dismissal after the disciplinary tribunal's written warning sanction.
• The matter was removed from the roll and regarded as finalised.
• The court held that the balance of irreparable harm favoured the respondent (employee) due to his financial situation being in a complete standstill after 12 years of employment. Section 89(6) of the Labour Act applied.

Remedies

• The applicant is required to reinstate the first respondent in the same or comparable position pending the finalisation of the appeal on or before 17 April 2023.
• The applicant is ordered to pay N$269,850 as compensation to the first respondent into the trust account of Köpplinger Boltman immediately, pending finalisation of the appeal.

Monetary Damages

Legal Principles

• The appeal chairperson cannot impose a sanction more severe than that of the disciplinary committee. The court held that TransNamib's internal policies and legal principles support this, and the increased penalty to dismissal was unjustified.
• The applicant must prove reasonable prospects of success on appeal. In this case, TransNamib failed to present sufficient facts to justify the dismissal, thus failing to meet this burden.
• The court considered the balance of irreparable harm, determining it favored Mr. Neshiko due to his financial hardship after dismissal, while TransNamib, as a state-owned entity, could withstand the interim measures.

Precedent Name

• Hardap Regional Council v Sankwasa and Another
• Cymot (Pty) Ltd v Cloete and Another
• Pupkewitz and Sons (Pty) Ltd v Muundjua
• Bhengu v Union Co-Operative

Cited Statute

• Labour Act, 11 of 2007
• Prescribed Rates of Interest Act, 1975

Judge Name

Passage Text

• In my view, the balance of irreparable harm favour Mr Neshiko who went from a long standing employee to not being able to take care of himself. TransNamib is a state owned entity with the ability to survive until determination of the appeal.
• A more severe penalty may not be imposed by an appeal tribunal.
• One of my main concerns with the evidence presented in this matter is that Mr van Greunen was unable to present the court with any facts explaining why Mr Neshiko was dismissed on appeal when the initial sanction of a written warning was imposed. The internal policies of TransNamib were not even attached to the founding affidavit.