Staff Writer
Former Independent Patriots for Change (IPC) councillor Fillemon Hambunda lost his case where he was demanding N$260 000 from his former employer – the City of Windhoek – as payment for services rendered between 1 September 2020 and 7 October 2020.
The City of Windhoek argues that Hambunda did not give a three-month notice as required by law even if he was on contract and had applied for early retirement.
Hambunda served as a strategic executive for economic development and community services in the City of Windhoek permanently from 1997.
In July 2017, Hambunda converted his employment status to a three-year five-month contract until his expected retirement in December 2020.
When Hambunda ran as a candidate for IPC in the 2020 regional and local councils elections, he gave notice for early retirement.
In his letter, Hambunda stated that he was retiring in “anticipation with the November 2020 elections outcomes” should he be elected into office as required by the law.
The City of Windhoek human resources department processed the early retirement notice on 13 October, and the chief executive officer signed it on the same day.
Hambunda worked until 30 November 2020, earning N$261 263.30.
The City of Windhoek refused to pay, and Hambunda took the case to the labour commissioner in September 2021.
The labour commissioner, Kahitire Kenneth Humu, set up the first conciliation on 19 January 2022, but the parties agreed to go for arbitration.
The arbitration started on 19 January 2022 and was concluded on 18 February 2022.
The Arguments
Hambunda argues that he followed the procedures required when he gave the notice to retire early and that the retirement fund paid him his benefits.
He also argues that since he was going into early retirement, there was no need for putting in a three-month notice.
Hambunda further says that the three-month notice would have been applicable only if he was a permanent employee.
However, the City of Windhoek counterargues that whether one takes early retirement or resigns, they still must put in a three-month notice.
“Whether an employee resigns or goes on early retirement, the effect is that the employment relationship comes to an end. In terms of the employment contract, an obligation is created to give three-month notice,” the City argues.
According to the City, the actual difference between the two terms only comes into play when dealing with pension fund issues and medical aid benefits.
The City further argues that parties who contract should honour their contractual obligations, and if they neglect, it amounts to a violation of the contract.
“The innocent party is thus, in law, entitled to be placed in the same position it would have occupied had the violation not occurred,” the City argues.
One of the contract agreement requirements was that the employee put in a three-month notice.
Since Hambunda did not give such a notice, he violated the employment contract, and this gives the City to act lawfully and deducting the salary was one such remedy.
The fixed-term agreement between Hambunda and the City of Windhoek states that the parties should inform each other whether the contract would be extended or not three months before it expired.
Clause 7.3.2 says the employee may terminate the agreement without giving notice to the employer, but the employee shall pay to the employer an amount which is equal to the remuneration which the employer would have been required to pay to the employee had the employee terminated the contract of employment.
Labour commissioner Humu said a contract of employment is a legal document that regulates the relationship between the parties. The contractual obligations obligate both parties to accomplish equally with the provisions established in the contract.
“Any party that fails to carry out contractual obligations in line with the terms of the contract is in breach of contract,” Humu says.
Hambunda had argued too that since the chief executive officer had signed off his notice, it, therefore, meant that everything was in order.
However, Humu said clause 9 of the fixed contract exonerated failure on the part of the employer or anyone acting on the employer’s behalf to waiver the employer’s rights.
“Even though the CEO approved and signed the applicant’s early retirement application, the applicant was still bound by the terms of the contract, and failure to give three months notice still amounts to a breach of contract entitling the respondent to invoke provisions of clauses 7.3.2,” Humu says.
Double Jeopardy
Although Hambunda had resigned to serve as an IPC councillor, he did not last. The IPC withdrew Hambunda and another Windhoek councillor, Desiree Davids, from the City, citing inappropriate conduct in contravention of its constitution.
However, Hambunda said that he had resigned because of how former mayor Job Amupanda was conducting the council affairs.
Hambunda also said he was leaving because he was unhappy with how the coalition parties ran the council.
At the time, the coalition was made up of IPC, AR Movement, Nudo and PDM.
IPC insiders, however, told the media that Hambunda had had a confrontation with the chief patriot Panduleni Itula who had raised issues with how he had conducted himself at the council in the past.
According to the insiders, one of the issues Itula raised was Hambunda’s authorisation of about N$1m towards the legal fees of council head of legal department Benedictus Nagirorue.
