Sostenus Wilherm
The High Court has ordered Novanam (Pty) Ltd to reinstate Toini Uupindi after ruling that her dismissal was substantively unfair, despite finding that the company was justified in concluding that she had reported for duty under the influence of alcohol.
In an order dated 23 October 2026, judge James Devittie directed Novanam to reinstate Uupidi to the position she held before her dismissal, or to a reasonably comparable position, within 40 days.
The court also ruled that Uupindi would not be entitled to compensation or back-pay for the period between her dismissal and reinstatement.
The ruling followed an appeal by Novanam against an arbitration award handed down by arbitrator Unondjo Tjakuva on 6 May 2026.
“The appeal succeeds to the extent that the arbitration award dated 6 May 2026 is set aside and substituted with an order that the appellant’s finding that the respondent was guilty of reporting for duty while under the influence of alcohol was substantively fair,” the court order states.
However, the court separately declared that the appellant’s dismissal of the respondent was substantively unfair and is set aside.
“The appellant’s dismissal of the respondent was substantively unfair and is set aside,” the court order reads.
The ruling therefore distinguishes between the company’s finding that Uupindi committed misconduct and its decision to dismiss her.
Novanam had challenged the arbitrator’s decision that the dismissal was substantively unfair, arguing that the arbitrator erred in finding that the company had failed to prove that Uupindi’s faculties were impaired to the extent that she could not perform her duties.
In opposing the appeal, Uupindi argued that the arbitrator had correctly applied established legal principles when assessing whether her dismissal was fair.
In her grounds of opposition, filed in June 2026, Uupindi maintained that an employer charging an employee with reporting for duty under the influence of alcohol must prove that the employee was under the influence within the meaning of the law.
She argued that admitting to consuming alcohol or pleading guilty to a disciplinary charge does not automatically establish that the employer had a valid and fair reason for dismissal.
According to the document, the employer must prove, on a balance of probabilities, that the employee’s faculties were impaired by alcohol and that the impairment rendered the employee incapable of performing her duties or meeting the minimum standard required for the work.
Uupindi’s opposition stated that the arbitrator had found that Novanam presented no evidence regarding “the extent of the First Respondent’s impairment, the degree of intoxication, or whether her ability to perform her duties had been adversely affected.”
She argued that the company had therefore failed to discharge its burden under section 33 of the Labour Act, 11 of 2007.
The dispute also involved the remedy granted by the arbitrator, who had ordered Uupindi’s reinstatement and awarded her N$37 196.08 in compensation, equivalent to eight months’ remuneration.
Novanam challenged the reinstatement and compensation, arguing that the arbitrator had erred in exercising her discretion.
Uupindi opposed that challenge, maintaining that reinstatement was appropriate because Novanam had not demonstrated that restoring the employment relationship would be impracticable, intolerable or that the relationship had irretrievably broken down.
She also argued that the compensation awarded was insufficient and contended that it should have covered the full period from her dismissal until the finalisation of the arbitration proceedings.
However, the High Court’s final order did not retain the compensation award.
Instead, it expressly ruled that Uupindi would not receive compensation or back-pay for the period between dismissal and reinstatement.
The court further ordered that there would be no order as to costs and declared the matter finalised and removed from the roll.
Novanam must therefore comply with the reinstatement order within 40 days of 23 October 2026, notwithstanding the court’s finding that its decision to dismiss Uupindi was substantively unfair.
