Court orders NHE to reinstate and pay Titus N$3.7m

The High Court has ordered the reinstatement of former National Housing Enterprise (NHE) sales and lending executive Willem George Titus, ruling that his 2021 dismissal was substantively unfair and awarding him N$3.7 million in lost earnings. The court further ordered that should the NHE opt not to reinstate him, it must pay compensation amounting to N$8 million.

In a judgment delivered by Acting Judge Devittie, the court directed that Titus be reinstated to the position he occupied before his dismissal, or to a comparable role within the state-owned housing enterprise.

The court further ordered the NHE to compensate Titus N$3 715 811.58, representing remuneration he would have earned from the date of his dismissal until his reinstatement, less any income earned through alternative employment from January 2024 until the date of reinstatement.

The ruling overturns an arbitration award that had found Titus's dismissal both procedurally and substantively fair. The court held that the arbitrator committed material errors of law in assessing both the misconduct allegations and the appropriateness of dismissal as a sanction.

Titus, who joined the NHE in 2001 and served as sales and lending executive, was dismissed on 6 December 2021 following disciplinary proceedings stemming from allegations of insubordination and insolence. The charges related to incidents that occurred during internal meetings and discussions involving management and governance matters in 2018 and 2019.

After his dismissal, Titus referred an unfair dismissal dispute to arbitration, where the arbitrator upheld the termination.

In reviewing the award, the High Court considered whether the arbitrator had properly evaluated the nature of the alleged misconduct, the sanction imposed and whether the employment relationship had deteriorated to a point where reinstatement would be inappropriate.

The court found that several significant mitigating factors had not been adequately considered, including Titus's nearly 20 years of service, his clean disciplinary record and evidence that he acted without malice and genuinely believed his conduct was justified.

According to the judgment, these factors were central to determining whether dismissal was a fair and proportionate sanction.

The court also questioned the arbitrator's characterisation of Titus's conduct as "gross insolence". Particular attention was paid to comments made during an executive meeting, including a remark referring to board members as "fools", which had been regarded as objectively disrespectful.

While acknowledging that the language was inappropriate, the court found that the comments were made during executive-level discussions where robust debate often forms part of organisational decision-making. It noted that there was no evidence the remarks were motivated by malice or intended as gratuitous insults.

The judgment further held that insufficient weight had been attached to the broader context in which the comments were made, including previous legal disputes between Titus and the NHE board concerning the legality of certain appointments within the organisation.

The court found that the remarks reflected a contentious but relevant organisational disagreement rather than malicious disparagement.

It also concluded that the arbitrator had failed to strike an appropriate balance between aggravating and mitigating factors. Although the use of derogatory language during a formal meeting was unacceptable, Titus's lengthy service, positive performance record and absence of previous misconduct weighed strongly in his favour.

The court found that the incidents did not amount to a pattern of serious misconduct warranting dismissal.

In assessing whether the employment relationship had irretrievably broken down, the court considered testimony from the NHE chief executive officer, who confirmed that Titus continued performing his duties after the incidents and that the working relationship remained functional for a considerable period.

The court noted that Titus continued to receive positive performance evaluations and that management continued working with him after the alleged misconduct, suggesting that the relationship remained viable.

The judgment also highlighted delays in the disciplinary process. Proceedings were first instituted in September 2019, followed by a second disciplinary process in June 2020, before ultimately resulting in dismissal.

According to the court, the delays undermined the NHE's contention that Titus's conduct had rendered the employment relationship intolerable.

The court observed that had the relationship truly become irreparable, disciplinary action would likely have been pursued more swiftly and the conduct would not have been tolerated during the intervening period.

While finding that Titus's language was inappropriate and disrespectful, the court concluded that dismissal was disproportionate when viewed against the full context of the matter.

It consequently found that the arbitrator's decision to uphold the dismissal was flawed and that reinstatement remained the appropriate remedy.

The compensation award comprises N$2.57 million for lost earnings during 2022 and 2023, N$944 518.16 for losses incurred during 2024 and 2025, and N$196 774.62 covering the period between January and May 2026.

Titus had alternatively sought N$8 million in compensation if reinstatement was not granted. That claim included projected future income losses up to retirement age and severance pay amounting to N$495 131.