Labour Court Reverses Axing of Cenored Cashier

THE dismissal of a cashier of the Central Northern Regional Electricity Distribution Company near the end of 2011 is set to cost the company, after her axing was ruled unfair and Cenored was ordered to reinstate her and give her more than two years of back pay.

Judge Shafimana Ueitele has ruled in a judgement delivered in the Labour Court in Windhoek that the dismissal of former Cenored cashier Sylvia Ikanga was unfair, that she should be reinstated with effect from the date of her dismissal on 29 November 2011, and that Cenored must pay her the salary she lost during the entire 29-month period of her dismissal.

Judge Ueitele made the orders at the end of a judgement in which he dismissed an appeal that Cenored lodged against the ruling of a labour arbitrator who in October 2012 ordered Cenored to reinstate Ikanga, based on a finding that the disciplinary hearing that preceded her dismissal had been flawed.

Ikanga, who was employed as a cashier at Cenored’s office at Outjo, was charged with misconduct after a shortage of N$9 720,20 was discovered at the cash office where she worked. One of her colleagues, who was employed as a debtor’s clerk, was also charged.

Ikanga’s explanation when the shortage was first discovered and during her disciplinary hearing was that she had issued handwritten invoices when she received money from customers, and that she thereafter handed the money and the invoice book to the debtor’s clerk. However, the money was not recorded on Cenored’s computer system or deposited into the company’s bank account.

At the disciplinary hearing, Ikanga was found guilty of theft and her dismissal was recommended.

However, on appeal Judge Ueitele found that the evidence at the disciplinary hearing did not prove that Ikanga had stolen the missing money.

The judge remarked that he found it improbable that Ikanga would have issued authentic handwritten receipts and then taken the money for herself. He found that there was no clear and reliable evidence that the money received by her had not been handed over to her colleague, as claimed by Ikanga. He could not discount the possibility that Ikanga’s colleague was responsible for the theft of the money, the judge said.

The finding that Ikanga’s disciplinary hearing and a subsequent internal appeal hearing were not fair was based on the fact that the chairperson of the disciplinary hearing was employed by a company, Nam-Labour, that also aised Cenored on labour issues, while the chairperson of the appeal committee was the president of the Namibian Employers Association.

In terms of Cenored’s disciplinary code of conduct a head of department in the company should be part of a disciplinary committee, Judge Ueitele found. He further found that the chairperson of the disciplinary hearing, former magistrate Walter Mostert, was as an outsider in terms of Cenored’s disciplinary code disqualified from presiding at the hearing.

Although a disciplinary code need not to be slavishly followed and constitutes guidelines rather than binding rules, Cenored did not provide any reason for its departure from the code, the judge remarked.

Also in terms of the disciplinary code the appeal committee had to be chaired by Cenored’s executive manager: corporate affairs, the judge noted. Instead, the president of the Namibian Employers Association, Robin Raines, was the chairperson of the appeal committee.

“In my view a reasonable, objective, informed independent observer would think to himself that the appeals committee composed as it was, of a high-ranking officer of an institution which represents the interest of employers was being placed in an intolerable situation,” Judge Ueitele said on that issue.

The judge further noted that at the disciplinary hearing the chairperson made a conclusion, without first hearing evidence from Ikanga, that the relationship of trust between Ikanga and her employer had irretrievably broken down.

Judge Ueitele said he concluded that Ikanga was not given a proper hearing at her disciplinary hearing.

Ramon Maasdorp, instructed by GF Koumlpplinger Legal Practitioners, represented Cenored in the appeal. Thabang Phatela represented Ikanga on instructions from Shikongo Law Chambers.

Source : The Namibian