The Labour Court has referred a dispute between the state-owned company Namcor Petroleum Trading and Distribution and its former managing director, Imms Mulunga, back to a labour arbitrator after ruling that an arbitrator wrongly found last June that he did not have jurisdiction to deal with the matter.
A labour arbitrator indeed has jurisdiction to deal with a dispute that the company – a subsidiary of the National Petroleum Corporation of Namibia (Namcor) – referred to the Office of the Labour Commissioner at the end of October 2024, judge Beatrix de Jager said in a judgement delivered in the Labour Court in Windhoek on Friday.
De Jager upheld an appeal by Namcor Petroleum Trading and Distribution against an arbitration award that arbitrator Moses Mazambo issued last June.
She ordered that points raised by Mulunga before the arbitrator are dismissed and that the dispute is referred back for a hearing by a different arbitrator.
Mulunga was dismissed as managing director of the Namcor subsidiary and of Namcor itself in August 2024, after he was found not guilty on charges that he faced in a disciplinary hearing.
Following the outcome of the disciplinary hearing and Mulunga’s dismissal, Namcor Petroleum Trading and Distribution referred a dispute with Mulunga for breach of an employment contract, together with claims for the recovery of alleged financial losses from him, to the Office of the Labour Commissioner at the end of October 2024.
De Jager recounted in her judgement that the Namcor subsidiary’s claims against Mulunga include one for the payment of interest on an amount of US$6.7 million (about N$123 million) that Mulunga is alleged to have transferred to the company Sungara Energies Limited in August 2022 without the approval of Namcor’s board of directors.
Namcor Petroleum Trading and Distribution is also claiming N$266.7 million and N$37.9 million from Mulunga for losses allegedly suffered by the company when Mulunga allowed the fuel dealers Erongo Petroleum and Enercon Namibia to exceed their credit limits with the company and obtain petroleum products in amounts of N$266.7 million and N$37.9 million.
Mulunga is also facing criminal charges in connection with the alleged exceeding of the credit limits of Erongo Petroleum and Enercon Namibia, which are both being liquidated after Namcor Petroleum Trading and Distribution applied for their winding-up in April 2024.
De Jager noted in her judgement that in terms of the Labour Act of 2007, arbitration tribunals operating under the Office of the Labour Commissioner have jurisdiction to hear and determine any dispute arising from the interpretation, implementation or application of the Labour Act.
Namcor Petroleum Trading and Distribution’s claims against Mulunga fall within the ambit of a dispute in terms of the Labour Act, as they relate to an alleged breach of employment contract by Mulunga and financial losses suffered by the company as a result, De Jager found.
In terms of the act, an arbitration tribunal can make compensation awards in favour of employers just as much as it may be made in favour of employees, and compensation may include contractual damages, De Jager also found.
The Labour Act “is there not only for employees but also for employers”, she said.
De Jager added: “[A]n arbitrator’s power to award compensation is not limited to awarding it to an employee. It includes a compensation award in favour of an employer.”
De Jager also found that claims for contractual damages arising from complaints relating to breaches of employment contracts may be referred to the Office of the Labour Commissioner as well.
Senior counsel Raymond Heathcote, assisted by Gerson Narib, represented Namcor Petroleum Trading and Distribution in the case heard by De Jager.
Mulunga was represented by Francois Bangamwabo.
