19 May 2017

Namibia: Supreme Court Appeal Over Airnam Dismissal Fails

A FORMER Air Namibia employee who was dismissed after he was accused of having irregularly provided boarding passes to Namibians trying to travel to Canada has lost a Supreme Court appeal through which he was trying to get his old job at the airline back.

Although he had some measure of success with the Supreme Court appeal that he lodged after losing a Labour Court case about his dismissal, the end result of the appeal still leaves former Air Namibia staff member Johannes Andima without the job he had at the airline.

That is after deputy chief justice Petrus Damaseb, who wrote the Supreme Court's judgement, upheld Andima's appeal in respect of a charge in which he was accused of having been responsible for the disappearance of a petty cash box of the airline, but dismissed the appeal against a charge that Andima dishonestly issued boarding passes for a flight from Namibia to Frankfurt in April 2012.

Judge of appeal Sylvester Mainga and acting judge of appeal Theo Frank agreed with the deputy chief justice's judgement.

In the judgement, Damaseb recounted that Andima was suspended from his position as duty controller at Hosea Kutako International Airport on 5 April 2012. After a disciplinary hearing, he was found guilty on three charges of misconduct, and dismissed in October 2012.

Andima then referred a dispute to the Office of the Labour Commissioner, where an arbitrator found he was unfairly dismissed and ordered that he should be reinstated in the post he had at the airline.

However, after Air Namibia appealed against the arbitrator's decision, the award in Andima's favour was overturned in the Labour Court in September 2014. In a last throw of the dice, Andima then appealed to the Supreme Court in a bid to have the Labour Court's decision reversed.

On the charge that Andima failed to safeguard a petty cash box with N$7 000 that disappeared at Hosea Kutako International Airport in October 2011, deputy chief justice Damaseb concluded that the Labour Court should not have overturned the arbitrator's finding that Andima could not be blamed for the disappearance of the cash box, which was kept in a safe to which other Air Namibia employees also had access.

The other two charges on which Andima was found guilty before he was dismissed were based on allegations that he provided boarding passes to four people for an Air Namibia flight from Hosea Kutako International Airport to Frankfurt on 22 April 2012 - more than two weeks after he had been suspended from his position at the airline.

The background to those charges was that at that time, a number of Namibians had travelled to Canada to seek asylum, the deputy chief justice noted.

With the Canadian authorities concerned about the number of bids for asylum made by Namibians who had flown to Canada, there was an arrangement with Air Namibia that the details of passengers who were planning to travel to Canada would be forwarded to the Canadian authorities so that the passengers could be vetted before boarding Air Namibia flights on the first leg of a journey to Canada.

Three passengers who had boarding passes for the flight to Frankfurt on 22 April 2012 were not allowed to fly after Air Namibia staff discovered that they had not been screened in terms of the agreement with the Canadians. The three passengers also did not check in luggage for the flight, and went straight past the check-in counter into the departure hall at the airport.

When they were questioned by the police, the three passengers said they had received the boarding passes from a woman in the airport's parking lot.

Deputy chief justice Damaseb also noted that one of the witnesses who testified during Andima's disciplinary hearing recounted that Andima gave her an envelope that she had to deliver to someone at Hosea Kutako International Airport, and that she saw three boarding passes in the envelope when it was opened after she had made the delivery at the parking area of the airport.

Another witness testified that he saw Andima at Eros Airport on 21 April 2012, and that Andima used an Air Namibia computer at a check-in counter to print four boarding passes.

The evidence on the charges about the boarding passes could lead to only one conclusion, which is that Andima issued the passes as alleged, deputy chief justice Damaseb found.

As a result, the Labour Court correctly set aside the arbitrator's decision in respect of those charges.

Andima's appeal was argued by Steve Rukoro, instructed by the Directorate of Legal Aid, when the matter was heard in the Supreme Court last month. Thabang Phatela, instructed by the law firm Murorua Kurtz Kasper Inc, represented Air Namibia.

Namibia

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