Namwater big-wig wins appeal case against employer
The general manager of operations at Namwater, Dr. Kuiri Tjipangandjara has won an appeal case in the labour court against his employer who had abolished his position via a restructuring exercise.
Judge Thomas Masuku found that Namwater’s conduct to unilaterally change or alter any term of condition of employment of Tjipangandjara was of a serious nature.
This was thus found to be in contravention of section 50 (1) (e) of the Labour Act making Namwater guilty of unfair labour practice.
The applicant had also been excluded by Namwater from its premises, a process otherwise known as a lock-out.
Said the Judge, “I am of the considered view that once a binding employment agreement is in place between an employer and employee, the law prohibits the employer from unilaterally changing any terms or conditions that both parties had agreed on.”
The court also found that the new position offered Tjipangandjara as a result of the restructuring in a letter dated 7 July 2014 did not meet his approval.
Tjipangandjara had also contested this development by writing to the Namwater chief executive officer whose response was a one-liner that, “I would like to reiterate here that the decision contained in my letter to you of 7 July 2014 remains”.
This led to a legal battle in which Tjipangandjara although did not get the declaratory he sought, something which he contested in his labour court appeal, however, his lock-out was ended.
Namwater’s consequently issued a cross-appeal to the labour court where it disputed that the arbitrator did not have jurisdiction to end its lock-out.
Its reasoning was that all statutory requirements for a valid lockout had been complied with.
The labour court came out to rule that Tjiparangandja’s point that a lock-out cannot be deployed by an employer against an employee was valid.
“The respondent’s conduct serves as illustration of bad faith in bargaining. As regards their arguments based on the onus and unfair labour practice resting on the employee, who according to them has to prove, not only the existence of the practice, but also that it was unfair.”
“In the present case, the employer merely informed the employee on the change of his new position and there was no room to negotiate despite various attempts by the employee to do so,” ruled Judge Masuku.