By Patience Nyangove
THE Namibia Students Financial Assistance Fund (NSFAF) board has turned the parastatal into an ungovernable institution, due to its questionable decisions.
The latest dubious board decision revolves around NSFAF Company Secretary, Fillemon Wise Immanuel, who had been found guilty of two counts of gross negligence, one count of using foul or insulting language towards a supervisor and one count of disregarding official instructions from his supervisor.
In a shocking turn of events last week, the board refused to fire Immanuel, and now stands accused of having openly disregarded the State Owned Enterprises Act, because of its actions.
These damning claims are contained in a legal opinion given to the parastatal by legal practitioner, Jaco Boltman, from law firm Kopplinger Boltman, which was roped after the Patty Karuaihe-Martin led NSFAF board last week let Immanuel off the hook.
Immanuel’s disciplinary hearing was chaired by Dr Johan van Rooyen, a labour consultant hired by NSFAF.
Confidente has in its possession communication that shows that Karuaihe-Martin had instructed the parastatal’s Head of Human Resources, Olavi Hamwele, to inform NSFAF Chief Executive Officer, Hilya Nghiwete, and Immanuel of the board’s decision.
However, it is also understood that not all the board members agreed with Karuaihe-Martin.
The NSFAF board has also not provided any reasons for its decision.
“The board resolved not to endorse the disciplinary outcome. They do not endorse a recommendation of the company secretary to be dismissed, according to the powers vested in them,” the board wrote to Nghiwete.
The legal opinion highlights how the board has illegally stripped Nghiwete of her powers.
“In essence, the board has made it very difficult, if not impossible to charge and/or discipline employees for the misconducts of insolence, gross negligence and insubordination.
“This should also have a detrimental effect on the disciplinary proceedings or systems in place at the place of employment, as a whole.
“And it will almost certainly have a negative effect on the chain of command in the organisation, for obvious reasons,” Boltman said.
“Not only has the board emasculated the CEO, but the further consequences of its actions will be that the organisation will be rendered ungovernable, since employees may, without fear of consequences, be insolent towards their superiors, make themselves guilty of repeated acts of gross negligence and/or may legitimately refuse to follow the instructions of their superiors.”
Boltman said that, as it stands, NSFAF board members are highly likely to be in contravention of the SOEs Act Section 18 (2) (b) and or (d), which state that, “the member must at all times exercise a reasonable degree of care and diligence in the performance of his or her functions and that the member must not make use of his or her position as a member to gain, directly or indirectly, an advantage for himself or herself, or for any other person, or cause detriment to the State-owned enterprise”.
“As things currently stand, in the absence of justifiable reasons for the board’s decision not to endorse (specifically the findings, and to a lesser degree the recommendation) the outcome of the disciplinary proceedings, especially considering that there was no challenge on those findings, and that the board was not even placed in a position to consider those findings, I am of the respectful opinion that the board members may be in violation of Section 18 (2) (b) and or (d) of the SOEs Act,” Boltman said.
He said that the least the NSFAF board could have done was to impose a lesser sanction, rather than acquit Immanuel, who had been found guilty by a duly mandated disciplinary hearing chairperson.
“As mentioned, the actions of the board impose mainly on the element or principle of consistency, to which the employer must adhere. This is so because it would be unfair to treat other people differently than Mr Immanuel has been treated, inconsistency also creates confusion as to whether the rule/s actually exists.
“The direct consequence of this is that other employees may now legitimately raise a defence of inconsistency, if any sanction is imposed on them for charges a similar nature (insolence, gross negligence and or insubordination).”
Boltman added further that the NSFAF’s board had set a bad precedent, as in future it will be difficult for NSFAF to charge other employees for the same types of misconduct that Immanuel was charged with.
“For employers to overcome a consistency challenge, the employer must show that there was a valid reason for differentiating between groups of employees guilty of the same offence.
“That principle applies in the event that employees are sanctioned differently for the same type of offences, but the principle will also apply, in this instance, for persons have to face similar types of charges when Mr Immanuel’s disciplinary outcome was not endorsed, and set aside, without any reasons provided therefore.”
Boltman recommended that Nghiwete urgently urges the board to reconsider its decision, as the consequences of not endorsing the outcome of the disciplinary outcome will be far-reaching.
“The current effect will be one of either the following: That it must be accepted that there are no rules against these acts of misconduct at the consultant’s place of employment or at the very least, the board will have to provide reasons as to why future cases must be distinguished from the current one.
“Since there are no written reasons, the obvious way to do this would to call the board, or at least the board chair, to testify in future disciplinary proceeding, where any issue of inconsistency on these acts of misconducts are raised.
“And since it would be unfair for employees to be deprived of their opportunities to challenge her testimony, she would have to be called to all future disciplinary hearings of this nature to present the board’s reasons through her testimony, in order to provide all employees charged with these types of misconduct with their individual opportunities to challenge the employer’s reasons,” Boltman added.
He said that under normal circumstances these types of misconducts are dismissible, especially if the employer has shown that the working relationship was rendered intolerable by the employee’s actions, and the employee has shown himself to be without remorse, not willing to be rehabilitated and thus a prime candidate for repeat offences.
The legal opinion also proposed that Nghiwete asks the board to provide its full reasons for its decision, as well as the process followed in reaching it.
Boltman states that Nghiwete, who was complaint in the case, was right to excuse herself from being complainant, jury and executioner in the matter.
When contacted for comment, Minister of Higher Education, Training and Innovation, Dr Itah Murangi-Kandjii said on Wednesday she could not comment, as she had just got back in the country.
Nghiwete refused to shed light on the matter, while Public Enterprises Minister, Leon Jooste, and Karuaihe-Martin were not available for comment.
Confidente. Lifting the Lid. Copyright © 2015