The Supreme Court has ordered the liquidators of Air Namibia to recalculate the amounts due to be paid out to former employees of the airline after it stopped operating in February 2021.
The court on Friday directed Air Namibia’s liquidators, Ian McLaren and Simon Steyn, to recalculate the total amounts due to be paid to 81 former employees of the airline in terms of their respective employment agreements, to determine the amounts payable for accumulated leave days, annual bonus payments, severance pay and notice period pay.
After the recalculation, the liquidators must pay to former Air Namibia employees the difference between the calculated amounts and amounts already paid to the ex-employees in December 2022, the court ordered.
The order was made at end of a judgement in which the court upheld an appeal by the liquidators against a High Court judgement in which the meaning of the term “remuneration” as it applies to 81 former Air Namibia employees was interpreted in August 2024.
The High Court found that in terms of the Labour Act former Air Namibia employees’ remuneration did not include their employer’s contribution towards the employees’ medical aid, pension fund and social security.
The High Court’s finding on that point was correct, the Supreme Court said in its judgement.
However, a further finding of the High Court – that in terms of their employment agreements former Air Namibia employees’ remuneration included pension fund, medical aid and social security payments by the airline – was not correct, the Supreme Court found.
The court also found that the former management of Air Namibia did not have the authority to agree with former employees in March 2021, after the airline’s liquidation process had started, that their severance packages would be calculated using a formula of employees’ total cost to the company, including the employer’s pension fund, medical aid and social security contributions.
The Supreme Court declared that former Air Namibia employees’ remuneration, for the purpose of calculating the severance pay that the liquidators have to pay to them, includes only their basic salaries, housing allowances and transport allowances.
The court’s judgement was delivered on an appeal that the liquidators lodged against the High Court’s judgement.
The High Court’s judgement was delivered after 81 former Air Namibia employees sued the liquidators and the Master of the High Court to get a declaratory order on the calculation of their remuneration for the purpose of pay-outs that the liquidators had to make to them.
Appeal judge Hosea Angula wrote the Supreme Court’s judgement.
Appeal judge Esi Schimming-Chase and acting judge of appeal Hannelie Prinsloo agreed with Angula’s judgement.
Senior counsel Raymond Heathcote, assisted by Charmaine van der Westhuizen, represented the liquidators in the appeal, on instructions from Corlia Maritz.
The 81 former Air Namibia employees were represented by senior counsel Natasha Bassingthwaighte, instructed by Sylvia Kahengombe.
