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Namibia - Avenues for redress (penalties, remedies) and litigation procedure for individual complaints


Avenues for redress (penalties, remedies) and litigation procedure for individual complaints - Namibia - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • No legal limits on the amount of compensation for unfair dismissal to be awarded by the arbitrator (see sec. 86(15) c) LA)

Reinstatement available: Yes

Remarks:
  • Sec. 86(15) d) LA provides that an arbitrator to a dispute may make any appropriate arbitration award, including an order of reinstatement of an employee.

Preliminary mandatory conciliation: Yes

Remarks:
  • Sec. 86(5) LA: "Unless the dispute has already been conciliated, the arbitrator must attempt to resolve the dispute through conciliation before beginning the arbitration."

    See also Sec. 85(6) LA: "If the conciliation attempt is unsuccessful, the arbitrator must begin the arbitration".

Competent court(s) / tribunal(s): labour court

Remarks:
  • In addition to Labour Court: Arbitration tribunal and Labour commissioner

    Sec. 85 LA establishes arbitration tribunals for the purpose of resolving disputes. Art 85(2) provides that Arbitration tribunals operate under the auspices of the Labour Commissioner, and have jurisdiction to
    (a) hear and determine any dispute or any other matter arising from the interpretation, implementation or application of this Act; and
    (b) make any order that they are empowered to make in terms of any provision of this Act.

    Sec. 86(1) LA provides that unless a collective agreement provides for referral of disputes to private arbitration, any party to a dispute may refer the dispute in writing to
    (a) the Labour Commissioner; or
    (b) any labour office.

    The Labour Court will only be competent to hear appeals against an arbitrator's award
    * on any question of law alone;
    * in the case of an award in a dispute initially referred to the labour Commissioner concerning the fundamental rights, on a question of fact, law or mixed fact and law (sec. 89 (1) LA).

Existing arbitration: Yes

Remarks:
  • Arbitration is the ordinary mechanism settling disputes relating to the breach of a contract of employment or a collective agreement (see sec. 84 to 86 LA). Any party to such dispute may refer it in writing to the Labour Commissioner or any labour office which will then refer the dispute to an arbitrator to attempt to resolve the dispute through arbitration; (sec. 86 (1) LA).

    If the dispute concerns a dismissal, it must be submittted within six months after the date of the dismissal. Otherwise, it must be submitted within one year after the dispute arises.

Length of procedure: 12 month(s)

Remarks:
  • Between 3 and 12 months depending on Court scheduling.

    See: Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

    "The Committee notes the information contained in the Government's report received in October 2011 in reply to the 2009 direct request. (...) The Government further reports that the average time to examine the appeals is done in accordance with the Labour Court Rules and ranges between three to 12 months, or more depending on Court scheduling."

% of dismissals out of the total number of disputes: 70 %

Remarks:
  • See: Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

    "The Committee notes the information contained in the Government's report received in October 2011 in reply to the 2009 direct request. The Government reports that 70 per cent of 3,100 registered labour disputes concerned termination of employment (unfair dismissals). Some of the disputes were successfully conciliated while others were referred to arbitration. Out of 86 appeals and reviews that were filed at the Labour Court, 70 were unfair dismissal claims."

Notes / Remarks
See: Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

"The Committee notes the information contained in the Government's report received in October 2011 in reply to the 2009 direct request. The Government reports that 70 per cent of 3,100 registered labour disputes concerned termination of employment (unfair dismissals). Some of the disputes were successfully conciliated while others were referred to arbitration. Out of 86 appeals and reviews that were filed at the Labour Court, 70 were unfair dismissal claims. The Government further reports that the average time to examine the appeals is done in accordance with the Labour Court Rules and ranges between three to 12 months, or more depending on Court scheduling. The Committee notes that there were 3,089 terminations for economic or similar reasons between 1 April 2010 and 31 March 2011".