REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no.: HC-MD-LAB-APP-AAA-2024/00010

In the matter between:

LUCINDRE HUSSELMANN APPELLANT

and

NAMIBIA POST LTD FIRST RESPONDENT

IMMANUEL HEITA SECOND RESPONDENT

LABOUR COMMISSIONER THIRD RESPONDENT

Neutral citation: Husselmann v Namibia Post Ltd (HC-MD-LAB-APP-AAA-2024/00010) [2024] NALCMD 56 (13 December 2024)

Coram: UEITELE J

Heard: 08 November 2024

Delivered: 13 December 2024

Flynote: Labour – Unfair Dismissal – Gross negligence – Demotion – To assess substantive fairness of procedure for dismissal – Employment relationship ceases from the date that demotion is communicated and endorsed.

Summary: This is an appeal of an arbitrator’s award issued by the second respondent on 08 February 2024. In terms of the award, the second respondent found that the appellant’s claim of unfair dismissal was substantively fair, but procedurally unfair.

The arbitrator, accordingly, ordered that the first respondent pays the appellant an amount of money equivalent to her salary of five months. The arbitrator, further, made no order as to cost. The appellant, aggrieved thereby, noted an appeal to this court against the arbitrator’s findings.

Held that, the approach outlined by the Supreme Court in a long line of cases requires courts to determine the true nature of the rights and obligations flowing from the document in question by undertaking the unitary exercise of interpreting the document in the light of its factual matrix, its purpose, the circumstances leading up to its conclusion, and the knowledge at the time of those who negotiated and produced the document.

Held further that, the Supreme Court has, however, emphasised that we must be cautious not to reduce that approach to a mechanical fashion, ‘[t]he inevitable point of departure is the language of the provision itself.’

Held further that, the employment relationship between the employee concerned and Nampost ceased to exist from the date that the demotion was endorsed by Nampost’s Chief Executive Officer and communicated to the employee. It logically follows that if the employee whose contract of employment has been terminated refuses to accept the offer for employment on a lower scale and salary, then that employee no longer has a contract with Nampost.

ORDER

1. The appeal is dismissed.

2. The dismissal of Lucindre Husselmann by Nampost is procedurally substantively fair.

3. There shall be no order as to costs.

4. The matter is finalised and removed from the roll.

JUDGMENT

UEITELE J:

Introduction and background

[1] This is an appeal noted against the arbitration award dated 08 February 2024 in case number CRWK 783-17 in terms of s 89 of the Labour Act 11 of 2007 (‘the Labour Act’), in terms of which the arbitrator (Immanuel Heita) found that the appellant’s dismissal from her employment was substantively fair, but procedurally unfair. The arbitrator did not order the erstwhile employer to reinstate the appellant, but instead ordered the erstwhile employer to compensate the appellant in the amount of N$61 471,55.

[2] The appellant, who is Ms Lucindre Husselmann, was employed from 8 November 2008 until her dismissal on 26 June 2017 by the Namibia Post Limited (who is the first respondent in this appeal) as a post office clerk at its main branch in Windhoek. The second respondent is Mr Immanuel Heita, who is cited in his official capacity as the arbitrator and who arbitrated the dispute of unfair dismissal referred to the office of the Labour Commissioner. The Labour Commissioner is cited as the third respondent in this appeal. I will, for ease of reference, refer to the appellant as Ms Husselmann, the first respondent as Nampost, the second respondent as the arbitrator and the third respondent as the Commissioner.

[3] The background facts which gave rise to this appeal are in summary as follows: On 16 December 2016 a fellow former colleague of Ms Husselman, a certain Ms Anna Marie van Wyk (Ms van Wyk) indicated that she wanted to take her lunch break between 14:00 and 15:00. Ms van Wyk accordingly requested Ms Husselmann to assist (by relieving Ms van Wyk) during her (Ms van Wyk’s) lunch break at her counter. After Ms Husselman obtained her supervisor’s (Mr Kapanga) permission Ms Husselman took over Ms van Wyk’s stock (which included cash amounts) at Ms van Wyk’s counter (counter 18).

[4] While Ms Husselmann was working at counter number 18, a certain Ms Maasdorp came to Nampost to withdraw money at counter 6. Ms Husselmann went with Ms Maasdorp to counter 6 to assists her (Ms Maasdorp) and when she (Ms Husselmann)+ returned to counter 18, she discovered that an amount of cash was missing from counter 18. Upon realising that some cash was missing, she immediately alerted her supervisor and requested the supervisor to lock up and cordon off the area around counter 18 for the purposes of searching all those employees, who were in the vicinity of counter 18. The supervisor refused that request.

[5] At the time when the she discovered that cash was missing from counter 18, Mr Kapanga was not in the building; he was on lunch. When Mr Kapanga returned from lunch and was alerted of the missing cash, they went to view the closed-circuit television (CCTV) camera around counter 18. It, however, transpired that the CCTV around counter 18 was out of order and not functioning.

[6] It later transpired that when Ms Husselmann took over Ms van Wyk’s stock at counter 18, the two of them did not follow the established and prescribed procedures. As a result of Ms van Wyk and Ms Husselmann’s failure to follow established prescribed procedures, both Ms Husselman and Ms van Wyk were, on 7 February 2017, charged with misconduct. Ms Husselmann’s charge read as follows:

‘NOTIFICATION OF A DISCIPLINARY HEARING

You are hereby notified of a disciplinary hearing, which will be held on Friday, 10 Feb 2017, at 2^nd Floor NamPost Teamwork Boardroom Windhoek, at 09:00. At this hearing, you will be asked to state your case regarding the following allegation(s).

Charge 1-Gross Negligence:

In that you, the Accused in your capacity as P O Clerk received stock and cash from Ms Anna Marie van Wyk to relieve her during her lunch break 'without following handing over procedure. You further acted highly negligent during that period by leaving physical cash to an amount of N$ 10 980.00 without locking up in a drawer and unguarded with a resultant cash shortage of N$ 10 980.00 after confirming and checking

Please be advised that you may exercise the following rights during the hearing:

• The right to representation in accordance with the Company's existing policy…’

[7] The disciplinary hearing in respect of Ms Husselman commenced on 13 March 2017 and concluded on 14 March 2017. On 23 June 2017, the disciplinary hearing committee announced its findings. It found Ms Husselman guilty of gross negligence and recommended a sanction of demotion. The chairperson of the disciplinary hearing stated the following:

‘After reviewing all the evidence and factors surrounding the case, including aggravating factors, the panel holds as follows:

1. The employee is ordered to pay the shortage of N$ 10 900.00 in accordance with the Shortage Repayment Policy.

2. We institute a penalty of Demotion with effect 1 July 2017.

3. The Accused has the right to appeal against our sanction within 7/seven working days through the Employee and Labour Relations.’

[8] The disciplinary hearing committee, in accordance with Nampost’s Disciplinary Code Policy and Procedure, forwarded its findings and recommendations to Nampost’s Chief Executive Officer, who, on 27 June 2017, approved and endorsed the recommendations. On 28 June 2017, Ms Husselman was informed of the outcome of the disciplinary hearing and the sanction imposed. The letter informing her of her demotion reads as follows:

‘CONFIDENTIAL

Ms. L Husselmann

P.O. Clerk

WINDHOEK

Dear Ms. Husselmann

LETTER OF DEMOTION

The disciplinary hearing held on 13 March 2017 refers. You were accused of:

• Gross Negligence

Consequent thereto a penalty of demotion was instituted against you with effect from 1 July 2017.

Please take note that: "demotion shall mean the termination of an employee's existing contract with his/her consent and the simultaneous making of an offer to such an employee at a lower position and pay".

With regard to the aforesaid matter and the resolution of the disciplinary chairperson your current position as a P.O. Clerk (B3) will be relegated to the position of Mail Operator (B1) which will amount to the following job offer:

• Rank: Mail Operator;

• Salary Notch N$ 96 302 p.a;

• Probation THREE CALENDER MONTHS.

• You will only be eligible for promotion after twelve months.

• This specific demotion is an alternative to dismissal, which means that, if you decline the above measure, it will result in a dismissal on the date when demotion was issued to you.

Yours sincerely,

MANAGER: EMPLOYEE & LABOUR RELATIONS’

[9] On the same date that Ms Husselmann was informed of her demotion, she declined to accept the new post offered to her. When Ms Husselmann refused to accept the demotion, Nampost called a meeting with her and a union representative. At the meeting, Nampost explained the consequences of her refusal to accept the demotion and she indicated that she understood the consequences and that she still rejects the demotion. As a consequence, Nampost’s Manager: Employee & Labour Relations, by letter dated 28 June 2017, informed Ms Husselman that her employment with Nampost was terminated effective from 28 June 2017 and that she had the right to appeal against the sanction imposed. Ms Husselmann was aggrieved by the termination of her employment, but instead of launching an internal appeal, Ms Husselmann, on 28 June 2017, referred a complaint of unfair dismissal to the office of the Commissioner.

The findings of the arbitrator

[10] As I have indicated above, Ms Husselman referred a dispute of unfair dismissal to the Commissioner on 28 June 2017. For reasons that are not apparent from the record, a delay of approximately six years occurred before the dispute was conciliated and arbitrated. The dispute, which Ms Husselmann referred to the Commissioner, was arbitrated by the arbitrator between 11 October 2023 and 13 October 2023.

[11] On 08 February 2024, the arbitrator delivered his arbitration award, and found that Ms Husselmann’s dismissal was procedurally unfair, but substantively fair. I will for the purpose of this appeal, in detail, quote the arbitrator’s reasoning, which informed his conclusions. I quote verbatim:

‘[36] Having gone through the evidence before me, I am not persuaded by the applicant submission that there was no fair and valid reason for her to be dismissed. It is common cause that the applicant was instructed by her supervisor to go relieve Ms. Anna Marie Van Wyk at counter 18. It is further common cause that the respondent has procedures in place in respect of taking and handing over stock and cash at a counter by the Clerks. It is worth mentioning that the applicant did not deny that she was aware of the procedures of the said procedures and neither had she given a reason why she did not follow the raid procedures down on the day in question.

[37] The applicant acknowledged that there are procedures to be followed when a handover and takeover is taking place at a counter, but were not complied with by everyone, thus she was not supposed to be dismissed. It appeared that the applicant has raised the point of inconsistency, in that she was targeted despite non-compliance with the procedures by other employees. There was much provided by the applicant in respect of the abovementioned point, it is my view that the applicant has failed to substantiate this point.

[38] Be that as it may, in my view, the fact the another employee has committed similar offence and no action taken against such an employee, should not be taken to grant a license to every other employee willy-nilly, to commit a misconduct with a belief that they would not be dismissed. The applicant ought to know that two wrongs can never make a right. Therefore, it is my respectable view that the respondent had a fair and valid reason to dismiss the applicant.

Procedural fairness

[39] Having dealt with substantive fairness, I now turn to the issue of procedural fairness which was raised by the applicant in this proceedings. Applicant contends that that her dismissal was fraught with irregularities, in that the respondent's Employee Relation Manager, Mr. Moses Ikanga intervened in the disciplinary process by issuing her with a dismissal letter.

[40] It is apposite at this stage to give a sequences of events which led the applicant to allege that her dismissal was procedurally flawed.

[41] The applicant in this matter appealed at disciplinary hearing on 10^th February 2017 and on 26^th June 2017, she was given a sanction of a demotion to a position of Mail Sorter/ Mail Handler, thereafter she was given 7 days appeal via the office of the Employee and Labour Relations. On the aforesaid, Mr. Ikanga: addressed a letter to the applicant, inter alia communicated to her the following:

• "This specific demotion is an alternative to dismissal, which means that, if you decline the above measure, it will result in a dismissal on the date when demotion was issued to you".

[42] On 27 June 2017, Mr. Ikanga addressed another letter to the applicant reminding her to pronounce herself on a sanction imposed and this was supposed to be done on or before 28 June 2017. On 28 June 2017, it appeared that there was a meeting between the applicant and two respondent's staff members, a certain N. Davids and H. Witbooi and it was at this meeting the applicant pronounced herself that she is not accepting a demotion. Consequently of the above, on 28 June 2017, Mr. Ikanga, surprisingly issued the applicant with a termination letter citing that her employment is terminated due to the fact that she rejected a demotion.

43. I am flabbergasted by Mr. Ikanga's decision to terminate applicant's employment contract on the ground that she refused to accept the sanction of a demotion. A decision to demote the applicant was taken by disciplinary committee as an appropriate sanction after it considered the evidence submitted by both parties, the applicant and respondent. The evidence before clearly show that the sanction was endorsed by Chief Executive Officer, before it was communicated to the applicant.

43. In my view, a sanction of a chairperson or for a disciplinary hearing committee is a full and final decision and in an event the accused is not happy with such decision, such an employee is at liberty to appeal it internal. If an employee is not pleased with the appeal outcome, such worker has the right to seek remedy outside. Therefore, in my view, the sanction emanated from disciplinary hearing is not negotiable, hence the accused person is entitled to appeal internally and thereafter seek outside remedy, if he or she is still aggrieved with outcome of the appeal.

43. What is surprising in this matter is that, the disciplinary committee never recommended a dismissal, they recommended the applicant to be demoted. Furthermore, there is no grain of evidence that the disciplinary committee recommended that the applicant must be dismissed in an event she refused to be demoted, therefore it is injustice and unprocedural for the respondent to deviate from the recommended sanction without valid justifications. To make matters worse, the applicant was not given an opportunity to make a presentation before she was dismissed, she was simply informed via a letter that her employment has come to an end.

43. It is evident that the conduct of the respondent in this regard is contrary to the principle of audi alteram partem which requires that one should hear a person who will be affected by the decision has to say before deciding. There is no doubt that the respondent's action is outside the scope of labour Act, Act 11 of 2007, particularly section 33 (1) (b) (ii) …

[51] Since, I have found that the respondent had a fair and valid reason to dismiss the applicant, this simply means that the applicant has contributed to her own downfall/dismissal. Furthermore, I am not convinced that the applicant can still be re-integrated into the operations of the respondent given the seriousness offence she committed. Therefore, in the circumstances reinstatement is not appropriate relief.’

Appeal to this court

[12] Ms Husselmann is equally aggrieved by the findings and conclusions of the arbitrator. She accordingly lodged an appeal in terms of s 89 of the Labour Act against the findings of the arbitrator. She tabulated her grounds of appeal as follows:

(a) The arbitrator correctly found that the letter written by Mr Moses Ikanga dated 28 June 2017 amounts to an unfair dismissal for non-compliance with the provisions of s 33(1)(b)(ii) of the Act, in respect of the procedure, however, erroneously found that the dismissal was fair in respect of substantive fairness.

(b) The arbitrator correctly found that Mr Ikanga had not followed the proper procedure in dismissing the appellant because she was not afforded an opportunity to make a representation and, therefore, it was procedurally unfair to dismiss the appellant. However, the arbitrator failed to find that the requirements of substantive fairness were also not complied with in dismissing Ms Husselmann.

(c) The arbitrator misdirected himself in finding that the failure by Ms Husselmann to follow the hand over procedure when she took over counter 18 from Ms Van Wyk, resulting in an amount of N$10 980 missing from the counter was a fair and valid reason to dismiss Ms Husselmann in respect of substantive fairness.

(d) The arbitrator correctly found that Nampost’s policy does not have any provision which gives Nampost authority to dismiss Ms Husselmann in an event when she refused a demotion. However, the arbitrator failed to find that refusing a demotion does not amount to a fair and valid reason to effect dismissal of Ms Husselmann.

(e) The arbitrator correctly found that Ms Husselmann was unfairly dismissed, however, erroneously found that reintegrating Ms Husselmann in the system of Nampost was not possible, although generally there was no sufficient evidence to prove that Ms Husselmann was not fit and proper to be reinstated. Alternatively, the arbitrator failed to order reimbursement with full back pay retrospectively from 28 June 2017 and to order that Ms Husselmann be paid out for the remaining period before she retires.

(f) Generally, there was no sufficient evidence on record on the basis of which Ms Husselmann could not be reintegrated in the operation of Nampost.

Discussion.

[13] The factual issues in this appeal are not in dispute. The relevant factual issues are that on 16 December 2016, Ms Husselmann relieved Ms van Wyk at counter 18. Nampost has a prescribed procedure for the handing over and taking over of stock and cash by counter clerks when they change counters. It is also not in dispute that Ms van Wyk and Ms Husselmann did not comply with the hand over procedures when Ms Husselmann relieved Ms van Wyk. It is furthermore not in dispute that Ms Husselmann, on 16 December 2016, left cash in the amount of approximately N$10 980 without locking it up in a drawer and unguarded when she went to assist Ms Maasdorp at counter 6. It is further not in dispute that an amount of N$10 980 disappeared during the time that Ms Husselmann was not at counter 18.

[14] One of the well-established principles of our law with respect to the power of a court hearing an appeal is that a court of appeal cannot decide the matter afresh and substitute its decision for that of the court of first instance. It would do so only where the court of first instance did not exercise its discretion judicially or by showing that the court of first instance exercised the power conferred upon it capriciously or upon a wrong principle or materially misdirected itself in fact or in law.¹

[15] The Supreme Court² quoting with approval from Botha v Law Society, Northern Provinces,³ outlined the power of an appeal court in the following terms:

‘That discretion is an example of a “narrow” discretion. The consequence is that an appeal court will not decide the matter afresh and substitute its decision for that of the court of first instance; it will do so only where the court of first instance did not exercise its discretion judicially, which can be done by showing that the court of first instance exercised the power conferred on it capriciously or upon a wrong principle, or did not bring its unbiased judgment to bear on the question or did not act for substantial reasons, or materially misdirected itself in fact or in law’.⁴

[16] In Janse Van Rensburg v Wilderness Air Namibia (Pty) Ltd,⁵ the Supreme Court noted that:

‘[45] It should be emphasised, however, that when faced with an appeal against a decision that is asserted to be perverse, an appellate court should be assiduous to avoid interfering with the decision for the reason that on the facts it would have reached a different decision on the record. That is not open to the appellate court. The test is exacting – is the decision that the arbitrator has reached one that no reasonable decision-maker could have reached.’

[17] Section 33 of the Labour Act fortifies the established principle that dismissals of employees must be both substantively and procedurally fair. In Dominikus v Namgem Diamonds Manufacturing,⁶ substantive fairness was explained as follows:

‘Substantive fairness means that a fair and valid reason for the dismissal must exist. In other words the reasons why the employer dismisses an employee must be good and well grounded; they must not be based on some spurious or indefensible ground. This requirement entails that the employer must, on a balance of probabilities, prove that the employee was actually guilty of misconduct or that he or she contravened a rule. The rule, that the employee is dismissed for breaking, must be valid and reasonable. Generally speaking, a workplace rule is regarded as valid if it falls within the employer's contractual powers and if the rule does not infringe the law or a collective agreement.’

[18] Section 33(4)(a) of the Labour Act provides that in any proceedings concerning a dismissal, if the employee establishes the existence of a dismissal, it is presumed, unless the contrary is proved by the employer, that the dismissal is unfair. A reading of the section makes it quite unequivocal that the line that determines where the burden lies is drawn at the point of dismissal of the employee, irrespective of whether the reason for the dismissal is for a proved act of misconduct, or that which is alleged is merely suspicious conduct which is not satisfactorily explained by the worker. As Gibson J said:

‘Thus the burden, whether it be in its strict sense or the lesser form, under the law as it stands, never shifts; the employer must prove that the dismissal was for a valid and fair reason’.⁷

[19] Collins Parker, in his seminal work Labour Law in Namibia,⁸ mentioned that there are two requirements of establishing unfair dismissal. Firstly, the employee must establish whether there was dismissal and, secondly, if it is established that such dismissal took place, then it is presumed to be unfair and the employer must prove that it was valid and fair, and that a fair procedure was followed.⁹ The test for fair dismissal is two-fold, ie substantive fairness and procedural fairness and the two are cumulative and not separate.¹⁰

[20] From the preceding discussion, it is safe to state that adjudging whether an employee has committed an act of misconduct, is a power conferred on an arbitrator. The factual findings made by the arbitrator must stand,¹¹ unless it is demonstrable that no reasonable arbitrator could have reached that conclusion.¹² At common law, employees are obliged to respect and obey their employers because lack of respect renders the employment relationship intolerable and disobedience undermines the employer’s authority. Parker opines that an employee’s obedience to the lawful and reasonable instructions of his or her employer is the touchstone of the employer-employee relationship.¹³

[21] In the present matter the arbitrator found that the rule, that Ms Husselmann is found to have broken or breached, is a valid and reasonable rule. The arbitrator furthermore found that the rule falls within Nampost’s contractual powers and that the rule does not infringe the law or a collective agreement. Counsel for Ms Husselmann did not argue, and cannot argue, that the findings by the arbitrator that the termination of Ms Husselmann’s employment is one that no reasonable decision-maker could have reached. I therefore find that there is no basis to interfere with that finding.

[22] I now proceed to consider the arbitrator’s finding that Ms Husselmann’s dismissal was procedurally unfair. Counsel for Ms Husselmann argued that from the letter dated 28 June 2017, it is clear that the reasons adduced by Nampost to dismiss Ms Husselmann were because she declined the demotion. Counsel further argued that one of Nampost’s witnesses testified under oath that had Ms Husselmann accepted the demotion, she would not have been dismissed.

[23] The arbitrator reasoned that Nampost relied on clause 7 (which deals with formal and informal disciplinary measures) of its Disciplinary Code and Procedures to effect Ms Husselmann’s dismissal. The arbitrator, thus, reasoned that the policy in question (that is Nampost’s Disciplinary Code and Procedures) does not have any provision, which gives it an authority to dismiss Ms Husselmann in an event she refused to be demoted. The arbitrator said:

‘. . . In my view, Mr. Inkanga had no legal basis to alter the initial sanction of the disciplinary hearing committee, from a demotion to a dismissal, certainly, he has acted ultra vires. Therefore, I am not inclined that the respondent [Nampost] had followed the correct procedures when it dismissed the applicant. The evidence before me is opposite to the respondent's version in this regard, thus I am confident to state that the respondent has failed to comply with sec 33 (1) (b) (ii).’

[24] My analysis as to whether or not the arbitrator’s finding is perverse must commence with the provisions of Nampost’s Disciplinary Code and Procedure. The much-cited passages from Natal Joint Municipal Pension Fund v Endumeni Municipality¹⁴ offer guidance as to how to approach the interpretation of the words used in a legal document, being it a contract, or legislation. I must undertake my analysis with due regard to our courts’ jurisprudence on the interpretation of legal documents.

[25] The approach outlined by the Supreme Court in a long line of cases requires courts to determine the true nature of the rights and obligations flowing from the document in question by undertaking the unitary exercise of interpreting the document in the light of its factual matrix, its purpose, the circumstances leading up to its conclusion, and the knowledge at the time of those who negotiated and produced the document. The Supreme Court has, however, emphasised that we must be cautious not to reduce that approach to a mechanical fashion, ‘[t]he inevitable point of departure is the language of the provision itself’.¹⁵

[26] Justice Unterhalter in Capitec Bank Holdings Ltd & another v Coral Lagoon Investments 194 (Pty) Ltd & others,¹⁶ reminds us that:

‘Endumeni [Natal Joint Municipal Pension Fund v Endumeni Municipality] is not a charter for judicial constructs premised upon what a contract should be taken to mean from a vantage point that is not located in the text of what the parties in fact agreed. Nor does Endumeni licence judicial interpretation that imports meanings into a contract so as to make it a better contract, or one that is ethically preferable.’

[27] Clause 7.2.8 of Nampost’s Disciplinary Code and Procedure in the relevant provisions provides as follows:

‘[7.2.8] Demotion.

[a] The company does not demote employees. Demotion in terms of the disciplinary policy code shall mean the termination of an employee’s existing contract of service and making the employee an offer of employment at a different lower position with lower salary.

[b] This may only be done as an alternative to dismissal in case where employee have committed performance related offence and where sufficient mitigating grounds exist to warrant this. This option will not be applicable to employees found guilty of theft/fraud/misappropriation or any other dishonest conduct.

[c] Demotion must be motivated by the Disciplinary Committee/Chairperson to the Chief Executive Officer and only he /she may authorize such Demotion as alternative to dismissal. The sanction will only be communicated to the employee once it is approved by the Chief Executive Officer.’

[28] The language used in paragraph (a) of clause 7.2.8 of Nampost’s Disciplinary Code and Procedure is, in my view, clear and unambiguous. That paragraph provides that demotion in terms of the disciplinary policy and code means the termination of an employee’s existing contract of service. It follows that once the disciplinary committee has resolved to impose the sanction of demotion the employee’s existing contract of employment is terminated. The effect is that the sanction of dismissal is imposed. To mitigate the adverse effects of termination of a contract of employment, the policy envisages that the company must in the same breath as it terminates the existing contract of employment make a new offer for another contract at a different lower position with a lower salary.

[29] It logically follows that if the employee whose contract of employment has been terminated refuses to accept the offer for employment on a lower scale and salary, then that employee no longer has a contract of employment with Nampost. The employment relationship between the employee concerned and Nampost has ceased from the date that the demotion was communicated to the employee, after it was endorsed by Nampost’s Chief Executive Officer.

[30] It therefore follows that, on the facts of the present matter, once the disciplinary committee‘s recommendation was endorsed by the Chief Executive Officer and communicated to Ms Husselmann, her contract of employment as a post office clerk was, from that moment, terminated and she was no longer an employee of Nampost. It, thus, follows that it was not Mr Ikanga, who terminated Ms Husselmann’s contract. I, furthermore, find that Mr Ikanga did not alter the initial sanction of the disciplinary hearing committee from a demotion to a dismissal.

[31] In my finding, it is the Chief Executive Officer of Nampost, who on the recommendation of the disciplinary committee terminated Ms Husselmann’s contract of employment. In my finding, Mr Ikanga simply exercised a mechanical power of informing Ms Husselman that her contract of employment terminated when she was demoted and having refused to accept the demotion, she was no longer an employee of Nampost. The finding that Mr Ikanga acted ultra vires is, thus, perverse and is for that reason set aside.

[32] Consequently, the appeal fails. For the avoidance of doubt, the award of the arbitrator dated 08 February 2024 is set aside and replaced with the following order:

1. The appeal is dismissed.

2. The dismissal of Lucindre Husselmann by Nampost is procedurally and substantively fair.

3. There shall be no order as to costs.

4. The matter is finalised and removed from the roll.

-----------------

S F I Ueitele

Judge

APPEARANCES

APPELLANT: J Kamati

Of Justine Kamati and Associates Inc.,

Windhoek

1^ST RESPONDENT: A Brendell

Of Shikongo Law Chambers,

Windhoek

2^ND & 3^RD RESPONDENTS No appearance