TransNamib wins appeal against fired train driver
05 March 2019 | Labour
The arbitrator had ordered the train driver's reinstatement and payment of more than N$200 000 in compensation.
Last week, Acting Judge Petrus Unengu said based on the evidence, including witness statements given during the labour arbitration in 2017, the conclusion reached by arbitrator Phillip Mwandingi that the dismissal had been unfair was wrong.
“On the evidence as a whole presented before him, the arbitrator should not have come to the conclusion he came to,” Unengu found.
Unengu said Mwandingi's conclusion was not supported by the evidence presented during the labour case and was against the legal principles of the law of evidence.
“Another arbitrator in his position, faced with the same evidence, would have come to a different conclusion that the one reached by Mr Mwandingi in this appeal.”
TransNamib had charged Ben Nakambonde with three counts of misconduct, including theft, misappropriation of funds and disobedience.
He was found guilty on all three counts at a disciplinary hearing and was fired. The charges stemmed from an incident in which it was discovered that Nakambonde had pocketed a train fare of N$120 paid to him by a 17-year-old customer, named in court documents only as 'Dikuua', on the route between Walvis Bay to Windhoek in August 2015.
Several witnesses were able to testify to the incident, including the fact that Dikuua handed over the money but was never issued a ticket by Nakambonde, nor any change.
The theft was uncovered when TransNamib officials later asked customers to show their tickets, and Dikuua was unable to do so.
Nakambonde denied the theft and accused TransNamib officials and other witnesses who had been on the train of conspiring to get rid of him. Nakambonde also claimed the witnesses had been “planted” by TransNamib.
After his dismissal, Nakambonde filed an unfair dismissal case with the Office of the Labour Commissioner and Mwandingi was appointed as the arbitrator.
Among the issues highlighted by the judge were Mwandingi's ready acceptance of the version given by Nakambonde and the dismissal of several witness statements.
“In his assessment of evidence, in particular evidence presented by witnesses who testified on behalf of TransNamib, the arbitrator was quick to discredit a witness for this or the other reason,” Unengu said.
“It is highly improbable that all people who were involved in the matter are [Nakambonde's] enemies who teamed up against him to get rid of him. I think they are correct in denying such a conspiracy against [Nakambonde].”
The judge ruled that the entire award issued by the arbitrator in October 2017 be set aside.