Senior finance manager takes RCC to Labour Court

The Roads Contractor Company (RCC) has been dragged to the Labour Court by its senior manager of finance and administration, Tulihaleni Nghihalua.
RCC is facing accusations of procedural irregularities and unfairness following the termination of Nghihalua’s contract despite an appeal ruling in her favour.

She is represented by labour consultant Diaz Kavu.
According to a charge sheet dated 4 November 2024, Nghihalua failed to disclose an ongoing High Court criminal case brought by her former employer against her, prior to her being hired by the RCC.
However, she is on record stating that she did not think that matter was relevant at the time of her application for the RCC post.
“I did not feel the matter was relevant to the consideration of my appointment as allegations were levelled against me in bad faith to frame me. The matter [was] withdrawn in 2019. It later went for trial and has been hanging since,” she says.

A 2016 termination of service note shows that Nghihalua was once employed by Komatsu South Africa (Pty) Ltd.
The failure to disclose the case, according to the RCC, was in violation of clause 15.1 and 15.3 of Nghihalua’s contract which required her to make such a disclosure.
Court documents show that Nghihalua was accused and charged with misconduct in November 2024, following a two-day investigation which revealed that she had failed to disclose that she had a pending criminal case prior to her being employed at RCC.

A 2022 ruling by justice Petrus Unengu shows that Nghihalua and three others had tried to appeal to the Supreme Court in a case where they were accused of multiple counts of fraud and money laundering.
They were seeking for the recusal of justice Unengu on the matter.

An RCC disciplinary hearing of 22 November 2024 found Nghihalua guilty of failing to disclose this to the company when she applied for her post.
A recommendation to fire her was made by the disciplinary chairperson, and endorsed by RCC interim chief executive officer (CEO) Dasius Nelumbu.

Nghihalua’s lawyer countered this.
“She has a criminal case on the roll and not a criminal record. So, you can’t disadvantage someone because of a pending criminal case, the principle of innocent until proven guilty must apply. And the policy is silent in disclosing pending criminal case,” Kavu said.

According to the RCC human resource policy manual, an applicant must state full particulars regarding any criminal record along with full details of the offences committed.
It further states that if such a record is not disclosed, the employee will be dealt with in accordance with the company’s disciplinary code and procedures.

However, the Namibia Public Workers Union opposed a move by the RCC to amend the policy without its involvement in a letter dated 17 February 2025 addressed to Nelumbu.
Documents show that Nghihalua appealed the RCC’s decision to the company’s disciplinary review committee.
“The applicant, exercising her right to appeal, submitted a notice of appeal on 24 December 2024 within the prescribed timeframe. However, despite the appeal being a fundamental component of procedural fairness, the applicant was not furnished with the records of the disciplinary proceedings, including minutes, audio recordings, or any other documentation necessary for the preparation of her appeal.

“This failure constituted a procedural irregularity in direct violation of the RCC human resource policy manual, which mandates that all disciplinary records be maintained and made available to the affected party upon request. The applicant made formal requests for the disclosure of these records on 13 January 2025 and 17 January 2025, both of which were unjustifiably denied by the human resource department represented by Mr Raphael Masule,” records show.

Kavu said after thorough deliberation, the appeal chairperson ruled in favour of Nghihalua on 3 March 2025 ordering her to be reinstated with a final warning valid for nine months.
However, Nelumbu has been accused in court papers of disregarding the decision of the appeal chairperson, resulting the case being taken to the Labour Court.
In a letter to Nghihalua dated 3 March 2025, Nelumbu said he has the discretion as interim CEO to approve or reject the appeal committee’s recommendation.
“While the appeal committee recommended a lighter penalty on the charge of dishonesty, to which you have pleaded guilty in the disciplinary hearing, in accordance with company procedures, the interim CEO has the discretion to approve or reject the appeal committee’s recommendation. The offence as classified, warrants dismissal as per the company policy and was deemed an appropriate action,” he said.
Nghihalua and her lawyer have, however, slammed this decision, arguing that it violates section 8.11 which deals with the company’s appeal procedure.
They have also denied the claim that Nghihalua pleaded guilty to the charge of dishonesty.

According to the section, the decision of the disciplinary review committee will be final.
“The actions of Mr Nelumbu amount to a serious procedural irregularity and a blatant violation of the applicant’s rights as he lacked any legal or procedural authority to overturn the appeal ruling. Compounding the procedural injustices, Mr Nelumbu made false and misleading assertions in his letter including the unfounded claim that the applicant pleaded guilty during the initial disciplinary hearing,” Kavu said.

He now wants the Labour Court arbitrator to declare the actions of the RCC and its listed respondents as constituting unfair dismissal and unfair labour practices.
Kavu also wants an order that the applicant be reinstated with retrospective effect with all her salary and benefits from the date of dismissal until the date of the award of such an order.