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Namibia
 


Source and scope of regulations - 2019    

References
  • Labour Amendment Act, 2012 (Act No. 2 of 2012)
    Date: 12 Apr 2012; view website »
  • Labour Act [LA], No. 11 of 2007
    Date: 21 Dec 2007 (view in NATLEX »)
Scope
Size of enterprises excluded (≤): none
Workers' categories excluded: police; army; prison personnel; state security corps
Remarks:
  • Sec. 2 LA: The LA applies to all employers (including the State) and employees, with the exception of the members of the Namibia Defence Force, Police Force, Central Intelligence Service, and Prisons Service.

    The Labour Amendment Act 2012 amended Art. 128 LA to include within the definition of ‘employee’ and scope of the Act, an individual, except an independent contractor, whom a private employment agency places with a user enterprise, is an employee of the user enterprise, and the user enterprise is the employer of that employee. Prior to this amendment, private agency employees were not regulated.

Types of employment contracts - 2019    

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Maximum probationary (trial) period: no limitation

Remarks:
  • There is no reference to probationary period in the LA.

Fixed term contract (FTC):
  • FTC regulated: No
  • Valid reasons for FTC use: objective and material reasons
    Remarks:
    • Sec. 128(C) LA, as amended by the 2012 Amendment Act does not provide a list of valid reasons for fixed-term contracts, but does establish a legal presumption that an employee is employed indefinitely, unless the employer can establish a justification for employment on a fixed term.
  • Maximum number of successive FTCs: no limitation
  • Maximum cumulative duration of successive FTCs: no limitation

Substantive requirements for dismissals (justified and prohibited grounds) - 2019    

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Obligation to provide reasons to the employee: Yes
Remarks:
  • Sec. 30(3) LA: the reasons for termination must be indicated in the written notice of termination.


Valid grounds (justified dismissal): any fair reasons
Remarks:
  • Sec. 33(1) LA: An employer must not, whether notice is given or not, dismiss an employee -
    (a) without a valid and fair reason; and
    (b) without following the procedures set by the LA in case of redundancy; or, subject to any code of good practice, a fair procedure, in any other case.

    In its Direct Request (2011) on the application of ILO Convention No. 158, the CEACR provides that "The Government indicates that any termination is required to meet the “valid and fair reason” definition under section 33(1)(a) of the Labour Act. In Namibia, this definition does not necessarily only refer to the capacity or conduct of the worker, but also refers to the operational requirements of the undertaking. A “valid and fair reason” presupposes fair procedures (procedural fairness) and a valid reason for termination (substantive fairness). The Government indicates that it is not only sufficient to consider capacity or conduct – the employer must regard fair procedures and elements relating to capacity or conduct before deciding whether or not to terminate the employment contract of an employee."


Prohibited grounds: marital status; pregnancy; maternity leave; family responsibilities; race; colour; sex; religion; political opinion; social origin; trade union membership and activities; disabilities; financial status; exercise of a right; HIV status; ethnic origin
Remarks:
  • Sec. 33 (2) LA lists the cases of unfair dismissals, which occur:
    - because the employee discloses information that he or she is entitled or required to disclose to another person;
    - for the reasons related to an employee's lawful trade union activities,
    - because of the exercise of any right conferred by the LA or the terms of the contract of employment; or
    - because the employee fails or refuses to do anything that an employer must not lawfully permit or require an employee to do.
    In addition constitute an unfair dismissal any dismissal based on: sex, race, colour, ethnic origin, religion, creed or social or economic status, political opinion and marital status (sec. 33(3) LA)

    See also: Sec. 5(2) LA which forbids employer to discriminate employees in any decision, which includes termination, on account of family responsibilities, degree of physical or mental disability, AIDS or HIV status; or previous, current or future pregnancy (in addition to the above-mentioned grounds listed in sec. 33(3))
    The dismissal of an employee for disciplinary reasons in contravention of sec. 33 LA constitutes an unfair labour practice (sec. 48 LA).

    On maternity leave, see sec. 26(5) LA.


Workers enjoying special protection: pregnant women and/or women on maternity leave
Remarks:
  • See sec. 26(5) LA: An employer must not dismiss an employee during her maternity leave or at the expiry of that leave on:
    - economic grounds (as listed in sec. 34 on collective dismissal)
    - any grounds arising from her pregnancy, delivery, or her resulting family status or responsibility.
    The prohibition does not apply if the employer has offered the employee comparable alternative employment; and she has unreasonably refused to accept that offer.


Procedural requirements for individual dismissals - 2019    

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Notification to the worker to be dismissed: written

Remarks:
  • Sec. 30(3) LA provides that notice of termination must be given in writing, stating the reasons for termination, if the termination is by the employer, and the date on which the notice is given, which may be:
    (a) on any working day in respect of an employee who has been employed for four weeks or less
    (b) on or before the last working day of the week in respect of an employee has been employed for more than four weeks but less than a year; and
    (c) on the first or the 15th of the month in respect of an employee who has been employed for over a year.

Notice period:
Remarks:
  • Sec. 30(1) LA set forth statutory minimum notice periods according to the employee's length of service, as follow:
    - one day, if the employee has been employed for four weeks or less;
    - one week, if the employee has been employed for more than four weeks but not more than one year;
    - one month, if the employee has been employed for more than one year.

    An employer and an employee may agree to a longer notice period provided that it is of equal duration for both parties (sec. 30(2) LA)
    • tenure ≥ 6 months
      • 1 week(s).
    • tenure ≥ 9 months
      • 1 week(s).
    • tenure ≥ 2 years
      • 1 month(s).
    • tenure ≥ 4 years
      • 1 month(s).
    • tenure ≥ 5 years
      • 1 month(s).
    • tenure ≥ 10 years
      • 1 month(s).
    • tenure ≥ 20 years
      • 1 month(s).

    Pay in lieu of notice: Yes

    Remarks:
    • Sec. 31(1) LA provides that instead of giving an employee notice in terms of section 30, an employer may pay the employee the remuneration the employee would have received, if the employee had worked during the period of notice.

    Notification to the public administration: No

    Remarks:
    • Except in the event of redundancy (see under "Collective dismissals for economic reasons"): art. 34 LA.

    Notification to workers' representatives: No

    Remarks:
    • Except in the event of redundancy (see under "Collective dismissals for economic reasons"): art. 34 LA.

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: No

    Procedural requirements for collective dismissals for economic reasons (redundancy, retrenchment) - 2019    

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    Definition of collective dismissal (number of employees concerned):
    The Labour Act provides for a specific regime in the event of any dismissal based on the reduction of the workforce arising from the re-organisation or transfer of the business or the discontinuance or reduction of the business for economic or technological reasons. However, it does not specify the number of employee concerned.

    Remarks:
    • See sec. 34 LA.

    Prior consultations with trade unions (workers' representatives): Yes

    Remarks:
    • Sec. 34(1) d) LA: In case of redundancy, the employer must negotiate in good faith with the trade union or workplace representatives on alternatives to dismissals, the selection criteria, how to minimise the dismissals; the conditions on which the dismissals are to take place; and how to avert the adverse effects of the dismissals.

    Notification to the public administration: Yes

    Remarks:
    • Sec. 34(1) (a) LA: Notification to the Labour Commissioner at least four weeks before the intended dismissals are to take place. The information shall include the reasons for the reduction in the workforce, the number and categories of employees affected and the date of the dismissals.

    Notification to workers' representatives: Yes

    Remarks:
    • Sec. 34(1) (a) and (b) LA: Notification to any trade union which the employer has recognised as the exclusive bargaining agent in respect of the employees at least four weeks before the intended dismissals are to take place. The information shall include the reasons for the reduction in the workforce, the number and categories of employees affected and the date of the dismissals.
      If there is no recognised trade union as the exclusive bargaining agent in the enterprise, the information must be given to the elected workplace representatives.

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: No

    Priority rules for collective dismissals (social considerations, age, job tenure): No

    Remarks:
    • No rules on the determination of selection criteria in the legislation reviewed. Selection criteria are referred to in sec. 34 (1) d) LA as one of the elements to be negotiated with to the trade union or worker representatives. The employer shall select the employees according to criteria that are either agreed or fair and objective (sec. 34 (1) e) LA)

    Employer's obligation to consider alternatives to dismissal (transfers, retraining...): Yes

    Remarks:
    • Sec. 34(1) d) LA: In case of redundancy, the employer must negotiate with the trade union or workers representatives on alternatives to dismissals, how to minimise the dismissals and how to avert the adverse effects of the dismissals.

    Priority rules for re-employment: No

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

    "The Committee notes that there were 3,089 terminations for economic or similar reasons between 1 April 2010 and 31 March 2011".

    Severance pay and redundancy payment - 2019    

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    Severance pay:
    Remarks:
    • An employer must pay severance pay to an employee who has completed 12 months of continuous service (sec. 35 LA), if the employee:
      - is dismissed ;
      * dies while employed; or
      * resigns after reaching the age of 65 years.
      The amount of severance pay must be equal to at least one week's remuneration for each year of continuous service with the employer (sec. 35 (3)).

      However, an employee is not entitled to severance pay (sec. 35 (2)):
      - in case of a fair dismissal on grounds of misconduct or poor work performance;
      - if the employee unreasonably refuses to be reinstated; or
      - if the employee unreasonably refuses to accept employment on no less favourable terms.

    • tenure ≥ 6 months: 0 week(s)
    • tenure ≥ 9 months: 0 week(s)
    • tenure ≥ 1 year: 1 week(s)
    • tenure ≥ 2 years: 2 week(s)
    • tenure ≥ 4 years: 4 week(s)
    • tenure ≥ 5 years: 5 week(s)
    • tenure ≥ 10 years: 10 week(s)
    • tenure ≥ 20 years: 20 week(s)
    Redundancy payment:
    Remarks:
    • No specific provision on redundancy payment. However, dismissed employees are entitled to severance pay in the event of any dismissal (not based on misconduct or poor performance) (sec. 35 LA). Economic dismissals are therefore included under severance pay.
    • tenure ≥ 6 months: 0 week(s)
    • tenure ≥ 9 months: 0 week(s)
    • tenure ≥ 1 year: 1 week(s)
    • tenure ≥ 2 years: 2 week(s)
    • tenure ≥ 4 years: 4 week(s)
    • tenure ≥ 5 years: 5 week(s)
    • tenure ≥ 10 years: 10 week(s)
    • tenure ≥ 20 years: 20 week(s)

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

    Source of additional information - 2019    

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    Links

    ILO Committee of Experts on the Application of Conventions and Recommendations - Comments on the ILO Termination of Employment Convention, 1982, No. 158, (1990-2009) »

    ILO termination of employment legislation digest - Namibia (last updated in 2007) »