LABOUR LAW – EMPLOYMENT DISPUTE IN THE INTELIGENCE CLUSTER WHERE LABOUR ACT DOES NOT APPLY

LABOUR LAW – EMPLOYMENT DISPUTE IN THE INTELIGENCE CLUSTER WHERE LABOUR ACT DOES NOT APPLY

The applicant was transferred from another ministry in the Government of Namibia to the Namibia Central Intelligence Service (NCIS – 4^th respondent) and because of an administrative oversight, he received double payments for around two years. As a result of this, he was criminally charged with 31 counts of theft in the Magistrates Court, but the charges in the Magistrates Court were withdrawn. However, this resulted in disciplinary proceedings which led to the termination of his employment with effect from 1 May 2018. Applicant appealed on 14 May 2018 to the first respondent (the President of the Republic of Namibia) in terms of regulation 11(18) of the NCIS Regulations against this decision to terminate his employment.

The first respondent reached a decision on 21 April 2021 dismissing the appeal. Applicant received notice of this decision on 7 June 2021, and dissatisfied thereby brought an application in the High Court for essentially an order of reinstatement. In particular, the applicant challenged the first respondent’s decision to dismiss his appeal, the second respondent’s decision to convict and dismiss him as well as the fifth respondent’s decision to deny him the right to legal representation at his disciplinary proceedings.

COLEMAN J considered the matter and stated that the first respondent did not apply his mind to the matter; made his decision on the wrong facts, or disregarded the fact that the charges of theft on which the entire disciplinary proceedings was based were withdrawn. Regulation 11(13) of the NCIS Regulations contemplated that the applicant could have legal representation at disciplinary hearing. In conveying that legal representation was excluded, the fifth respondent acted arbitrarily and in breach of that regulation. It was questionable how being being charged with offences without being convicted – as the charges were withdrawn – could conceivably constitute the misconduct defined in section 22(e) of the NCIS Directives.

The court was satisfied that the disciplinary proceedings were tainted by the fact that the applicant was denied legal representation in an arbitrary fashion and that the applicant was unlawfully dismissed. In respect of reinstatement, the applicant was kept on at NCIS for almost three years while his appeal to the President was being considered. Dishonesty was not proven, and there was no reason why applicant could not be reinstated. Thus,  the court held that that the applicant was unfairly dismissed and should be reinstated.

Shivute v President of the Republic of Namibia NAHCMD 8 September 2022