Hertta-Maria Amutenja
TransNamib has been ordered by the Labour Commissioner to pay full salary and benefits to one of two employees dismissed after the 2018 illegal strike.
The payment will cover the period from the date of dismissal until his retirement in October 2019.
The ruling follows a lengthy arbitration process that found the dismissals of Johannes Uwanga and Asser Birisamub to be substantively and procedurally unfair.
Arbitrator Matheo Rudath delivered the award this week, declaring that their dismissal violated the Labour Act.
Uwanga, a senior train operator, was awarded compensation from the dismissal date until his retirement on 30 October 2019.
Birisamub, a train driver, was ordered to be reinstated with back pay from the date of dismissal to the date of reinstatement.
In September 2018, over 400 TransNamib employees went on strike over stalled wage talks and salary freezes.
TransNamib declared the strike illegal, and the Namibia Transport and Allied Workers Union distanced itself from it.
The only ones disciplined and dismissed were Uwanga and Birisamub.
The arbitration award pointed out serious procedural failures.
Rudath found that Simon Binda, who chaired the disciplinary hearing, was the immediate supervisor of the applicants.
This violated TransNamib’s Industrial Relations Policy, which requires an impartial chairperson, preferably from outside the department.
“The use of the applicant supervisor as the chairperson of the disciplinary hearing may be the reason why there was no proper investigation report as required by the IR Policy,” Rudath stated.
He criticised the chairperson for failing to justify why harsher penalties were imposed than those outlined in the policy.
He also said that the chairperson disregarded mitigating factors like Uwanga’s 31 years and Birisamub’s 20 years of service.
“The chairperson failed to consider applicants’ mitigation, such as long service and age and the ability to acquire new competencies,” Rudath said.
The arbitration also found that no formal investigation report was presented, and there were no clear reasons given for imposing dismissals.
The employees were charged with intimidation, disobedience, and absenteeism. Rudath found insufficient evidence to prove intimidation. He said the evidence showed the two employees peacefully persuaded colleagues to join the strike.
“There is not sufficient evidence to prove on a balance of probability that the applicants committed intimidation. Evidence shows the applicants peacefully persuaded colleagues to join an illegal strike,” he said.
The absenteeism charge also fell apart after TransNamib failed to present work schedules to show whether the employees were supposed to be on duty during the strike.
Both employees asserted that their work schedules did not include the strike period.
Uwanga and Birisamub testified that they acted as representatives of the striking workers and communicated between employees and management.
Rudath confirmed this was valid under company policy, which allows workers to select spokespeople for grievances, regardless of union election status.
Birisamub told the hearing that he faced financial hardship, including overdrafts and personal loans. He said he relied on his train-driving skills, a specialised job with few alternative options in Namibia.
Rudath said the employees’ age and specific skills should have been considered before deciding on dismissal.
