TransNamib in court fracas with train driver

27 February 2018 | Justice

TransNamib is challenging a labour arbitrator’s award in favour of a former train driver, which includes that he be reinstated and that the company should pay him N$207 755.24 in compensation.

The parastatal wants the Windhoek High Court to overturn the arbitrator’s ruling, which said it failed to prove the dismissal of train driver Ben Nakambonde was fair.

TransNamib is appealing against the arbitrator’s finding that Nakambonde’s dismissal was both procedurally and substantively unfair.

Nakambonde was dismissed for allegedly pocketing N$120 - a ticket payment by a 17-year-old customer on a train between Walvis Bay and Usakos.

The arbitration board chaired by Phillip Mwandingi further found that TransNamib Holdings must reinstate Nakambonde with effect from 1 November 2017, with all his position’s terms and benefits remaining unchanged, as if he was never dismissed.

The train driver maintained his dismissal was unfair and that he wanted to be reinstated with full compensation for lost income.

However, TransNamib said in its urgent application that Nakambonde was dismissed for a fair and valid reason, and in accordance with fair and correct procedures. They are pleading for a finding that the dismissal was procedural and substantively fair.

The company also wants the ruling that the train driver be reinstated to be set aside, as well as the arbitrator’s finding that TransNamib should pay him compensation

The arbitrator had ordered that the payment be made directly to him by no later than 30 November 2017.

The company must also provide proof that the amount was paid in full. There was no costs order.

“The award is final and is binding on both parties and it becomes an order of the Labour Court upon filing by either party in terms of the provisions of the Labour Act of 2007,” Mwandingi said when he made the award.

Charles Visser from Lorentz Angula Incorporated, who is appearing for TransNamib, argued the arbitrator failed to take into cognisance the direct evidence against Nakambonde, which was not far-fetched or untenable, and therefore could not have been rejected.

“The uncontroverted evidence before the arbitrator leads to the conclusion that Nakambonde was guilty as charged.”

According to Visser the arbitrator was influenced by peripheral allegations, such as conspiracy and corruption allegations against senior officials of the company, which were an irrelevant consideration, while “ignoring direct, uncontroverted and admissible evidence”.

“The arbitrator based his decision to exclude or ignore direct evidence against the respondent on grounds which were extraneous to the enquiry that was before him,” Visser argued.

Judge Thomas Masuku is presiding over the matter.

FRED GOEIEMAN

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