Retrenchment to cost NWR millions
November 3, 2014, 10:12am
Retrenchment to cost NWR millions
THE retrenchment of two employees in the internal auditing department of Namibia Wildlife Resorts is set to cost the parastatal almost N$3 million more than planned, after it suffered a final defeat in a long-running legal dispute with the Government Institutions Pension Fund last week.
In terms of the rules of the GIPF, the NWR is liable to pay N$1,94 million to the GIPF in respect of the pension fund of former NWR employee Simeon Iingwapha, and also pay N$1,03 million to the GIPF in respect of the pension fund of another former employee, Selma Christoph, the Supreme Court declared on Thursday last week.
The NWR is also liable to pay interest on those amounts, if so required by the GIPF, the court ordered. The payments must be made within 14 days, it was further ordered. The orders were made at the end of a judgement in which Judge of Appeal Sylvester Mainga, with Acting Judges of Appeal Simpson Mtambanengwe and Elton Hoff in agreement, dismissed an appeal that the NWR had lodged against a High Court order, in which it also suffered a defeat against the GIPF over the retrenchment of Iingwapha and Christoph. The NWR was also ordered to pay the legal costs of the GIPF, Iingwapha and Christoph.
Judge of Appeal Mainga commented in the judgement that the NWR's case was “an opportunistic exercise” to avoid the provisions of the GIPF rule that requires an employer to make an additional payment to the GIPF when a member of the pension fund is retrenched.
Judge Mainga found that the evidence before the court pointed overwhelmingly to the conclusion that the NWR intended to and did retrench Iingwapha and Christoph, a fact the parastatal later denied. Judge Mainga also found that an offer made to Iingwapha and Christoph in which they were given the option of being redeployed to other positions within the NWR was a ploy to trick them into accepting offers that they would later regret agreeing to, and that the redeployment offer was made with the sole purpose of avoiding the provisions of the GIPF rule requiring the making of the payment into their pension fund.
The matter started in November 2009, when Iingwapha and Christoph received identical letters in which the then managing director of the NWR, Tobie Aupindi, informed them that the positions they were occupying in the NWR would no longer exist, since the parastatal had decided to do away with its internal audit section and to rely on the services of external auditors instead.
Having accepted their retrenchment, Iingwapha and Christoph pointed out to the NWR that the parastatal would be liable to pay certain sums to the GIPF in light of the difference between their age at the relevant time and retirement age, Judge Mainga recounted. That information prompted the NWR to offer the option of redeployment to them - but on different terms of remuneration and in positions for which they did not have the appropriate knowledge or skills.
When retrenchment negotiations stalled, Iingwapha and Christoph complained to the labour commissioner. In March 2010 a labour arbitrator directed that the NWR had to respect and honour the retrenchment option exercised by them.
The NWR then asked the High Court to declare that it was not liable to make the payments that the GIPF was demanding from it, but its application was dismissed in October 2012.
Judge Mainga found that once Iingwapha and Christoph opted to be retrenched, a valid agreement was concluded and the NWR had to honour that agreement. Once it realised the financial implications of the retrenchment as a result of the payment that it had to make to the GIPF, the NWR could not simply make a U-turn and retract its retrenchment offer, Judge Mainga indicated.
Theo Barnard, instructed by Richard Mueller, represented the NWR in the appeal. Nixon Marcus represented the GIPF, while Amupanda Kamanja appeared on behalf of Iingwapha and Christoph.
By Werner Menges: The Namibian