Sostenus Wilherm
The High Court has dismissed former ministry of health and social services senior accountant Ricardo Hitikua’s appeal against his dismissal for allegedly being absent from work for more than 30 consecutive days.
Acting judge David Mangota ruled on Wednesday that weekends and public holidays count towards the statutory period of absence under the Public Service Act.
“The arbitrator’s interpretation of the deeming provision is without fault,” Mangota said in his judgment.
Hitikua, who worked at the Khomas Health Directorate before his dismissal in August 2019, argued that the period should only include days on which he was contractually required to work.
However, the court found that the law refers to consecutive calendar days, rather than working days.
The case concerned Section 24(5)(a)(i) of the Public Service Act 13 of 1995, which provides for a public servant to be deemed discharged from the public service on account of misconduct if they are absent from their office or official duties without permission for a period exceeding 30 days.
The provision states that an employee who absents themselves without permission “for any period exceeding thirty days, shall be deemed to have been discharged from the Public Service on account of misconduct”.
Hitikua began working for the ministry on 4 August 1993 as an assistant accountant and later became a senior accountant.
He was seconded to Katutura Intermediate Hospital as a financial adviser for the 2019/2020 financial year, effective 1 July 2019.
The ministry alleged that he failed to report for duty from 1 July to 1 August 2019 without permission. His services were terminated through a letter dated 5 August 2019.
Hitikua disputed the allegation and referred an unfair dismissal dispute to the Labour Commissioner. The matter proceeded to arbitration, where the arbitrator found that his dismissal was substantively fair.
Dissatisfied with the outcome, Hitikua approached the High Court, arguing that the arbitrator had incorrectly calculated his period of absence by including Saturdays, Sundays and public holidays.
He maintained that he was only required to work from Monday to Friday and that the relevant period amounted to 23 working days rather than 30 consecutive days.
He sought an order setting aside the arbitration award, declaring his dismissal unlawful and directing the ministry to pay his outstanding remuneration and benefits dating back to July 2019.
Alternatively, he sought reinstatement and compensation for lost income.
The respondents, including the minister of health and social services, the Prime Minister, the Public Service Commission, arbitrator Liwela Sasele and the Labour Commissioner, opposed the appeal.
They argued that the law refers to a period exceeding 30 days, not 30 working days, and that the arbitrator had correctly applied the provision.
Mangota agreed with the respondents, finding that the wording of the law did not support Hitikua’s interpretation.
“The respondents are therefore correct when they submit that the 30 consecutive days period does not exclude Saturdays, Sundays and public holidays,” he said.
The judge further noted that the alleged absence ran from 1 July to 1 August 2019, a period of 31 days, exceeding the statutory threshold.
“The period, on the strength of simple mathematical calculation, comes to 31 days,” Mangota said.
The court also considered evidence examined during the arbitration proceedings, including attendance registers, meetings and witness testimony.
The arbitrator had found that the evidence did not establish that Hitikua had attended his assigned place of duty or performed his official duties during the disputed period.
The court stressed that the appeal could only succeed on a question of law under Section 89(1)(a) of the Labour Act 11 of 2007, rather than merely on disagreement with the arbitrator’s assessment of the evidence.
Mangota concluded that Hitikua had failed to establish a basis for overturning the arbitration award.
“The appellant failed to discharge the onus which rests upon him. He failed to prosecute his appeal successfully,” Mangota said.
