Mass Dismissal After Fish Theft Ruled Fair

THE dismissal of more than 300 employees of the Luumlderitz-based fishing company Novanam Limited after the large-scale theft of fish during a night shift in June 2012 was fair, a judge ruled in the Labour Court last week.

Employees have a duty not to work against the interests of their employer and not to abuse the confidence that the employer has in them, Judge Dave Smuts emphasised in a judgement on the dismissal of 317 employees of Novanam he delivered in the Labour Court.

Not only do employees have those duties toward their employer, but they also have a duty to assist their employer to bring to book other workers who have made themselves guilty of misconduct such as theft, Judge Smuts said.

The judgement was on an appeal that Novanam lodged against an arbitration ruling in which Labour Commissioner Bro-Mathew Shinguadja found in May last year that close to 300 female employees had been unfairly dismissed by the fishing company and thus had to be reinstated in their positions. Judge Smuts set aside the arbitration ruling, which included an order for the reinstatement of most of the dismissed employees.

Novanam dismissed a total of 317 employees, which included 19 supervisors, in late 2012, after two disciplinary hearings in which the supervisors and other employees were charged with misconduct.

The disciplinary hearings resulted from the large-scale theft of fish that took place at Novanam’s fish processing plant at Luumlderitz during the night of 29 to 30 June 2012.

It was in the early morning hours of 30 June 2012 that a large quantity of fresh and frozen fish was found in the ablution facilities and locker rooms of female employees and supervisors of Novanam, Judge Smuts recounted in his judgement. The fish was found hidden in lockers, gumboots, in bins and in bags on the floor.

It took some six hours to remove the fish, which weighed a total of about 2,5 tons and was valued at between N$500 000 and N$600 000. The fish was later destroyed, as it had become contaminated.

After the incident, Novanam put up notices at the processing plant in which employees were asked to come forward with information about those responsible for the theft. The notices were met with silence from the employees.

In the disciplinary hearings and also with the arbitration hearing in front of the labour commissioner one of the employees testified that all of the employees on the shift were involved in the theft of fish. She related that the theft started before the workers’ meal break and continued over a period of time, with employees taking fish to their lockers and the locker room area and nobody stopping them from doing so.

In his arbitration ruling, the labour commissioner correctly found that it could not be accepted that the substantial quantity of fish taken to the ablution and locker room areas would not have been seen by others, Judge Smuts commented.

However, the labour commissioner incorrectly stated that the concept of team misconduct is not part of the law in Namibia, Judge Smuts continued.

Employees who declined to prevent or report the large-scale theft and who did not react to a repeated invitation to come forward and identify the perpetrators of the theft breached the fundamental duty of employees not to work against the interest of their employer, not to abuse the confidence that the employer placed in the employees, and to protect the employer’s interests, Judge Smuts stated.

The employees’ failure to do anything about the large-scale unlawful and dishonest activity that took place during that night shift was compounded by the employees’ subsequent failure to come forward in circumstances where they would have been expected to have information about those responsible for the theft, Judge Smuts said.

Through their silence, the employees also made themselves guilty of a violation of trust and confidence, he found. In such an instance, where a group of employees have made themselves guilty of misconduct as a team, the employees’ dismissal by their employer would be justified, he ruled as he set aside the arbitrator’s ruling.

Adolf Denk, instructed by the law firm LorentzAngula Inc, represented Novanam in the appeal in the Labour Court. Steve Rukoro, instructed by Sisa Namandje amp Co and Harmse Attorneys, represented the dismissed employees.

Source : The Namibian