Sources of regulation
The Labour Act of 2004 (LA) is the
main source of labour law. Chapter 3 “Basic conditions of employment” contains
Part F entitled “Termination of employment” (Secs. 28 to 36). In 1996, Namibia ratified the ILO Termination of Employment
Convention, No. 158 (1982).
Other relevant labour legislation
is the Apprenticeship Ordinance No. 12 of 1938, the Merchant Shipping Act
No. 57 of 1951, as amended in 1991.
The public servants are covered by
the Public Service Act of 1980 and the Public Service Amendment Act No.
24 of 1990.
Scope of legislation
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 (Sec. 2).
If there is a conflict between the
provisions of the LA and the provisions of any other law, contract of employment
or collective agreement, the more favourable terms and conditions for the
employee prevails to the extent of the conflict (sec. 9(3)).
Contracts of employment
According to the LA (sec. 1(1)), an
employee means an individual (natural person), other than an independent
contractor, who works for another person and who receives, or is entitled
to receive, remuneration for that work; or in any manner and for remuneration
assists in carrying on or conducting the business of an employer.
The employer is defined as any person,
including the State, who employs, provides work for, an individual and
who remunerates or expressly or tacitly undertakes to remunerate that individual;
or permits an individual to assist that person in any manner in the carrying
on, conducting that person’s business.
There is no specific reference in
the LA to particular types of employment contracts. The provisions would
therefore seem to cover contracts of a fixed-term, short-term or indefinite
duration, as well as casual and seasonal employment.
Termination of employment
As regards termination of employment
contracts not at the initiative of the employer, the LA (sec. 31) expressly
stipulates that a contract of employment terminates automatically one month
after:
- the
death of the employer, if the employer is an individual;
- the
date on which the employer is wound up, if the employer is a legal person;
or
- the
date on which the partnership is dissolved, if the employer is a partnership.
- Automatic termination of contracts
of employment also occurs at the end of a longer period:
- provided
for in the contract of employment or a collective agreement, or
- during
which the employer continues to carry on business.
Both parties to the contract of employment are
entitled to terminate it without notice, or payment in lieu of notice, for
any cause recognized by law (sec. 29 (6)).
Dismissal
An employer must not, whether notice
is given or not, dismiss an employee:
- without
a valid and fair reason; and
- 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 (sec.
32 (1)).
The LA lists the cases of unfair dismissals (sec.
32 (2)), which occur:
- for
the reasons related to an employee’s lawful trade union activities,
- when
an employee exercise any right conferred by the LA or the terms of the
contract of employment; or
- when
an employee fails or refuses to do anything that an employer must not
lawfully permit or require an employee to do.
The dismissal of an employee for disciplinary reasons
in contravention of Sec. 32 of the LA constitutes an unfair labour practice
(sec. 47).
Sec. 2 of the LA lists the prohibited
grounds for discrimination in any employment practice, directly or indirectly,
against any individual:
- race,
colour, or ethnic origin;
- sex,
marital status or family responsibilities;
- religion,
creed or political opinion;
- social
or economic status;
- degree
of physical or mental disability;
- AIDS
or HIV status; or
- previous,
current or future pregnancy.
The LA does not define the collective
dismissal. It does, however, stipulate procedures to be followed for dismissals
in case of redundancy.
Notice and prior procedural safeguards
Where ordinary dismissal is planned
for contracts of indefinite employment, the employer must give due notice
as follows, according to the employee’s length of service (sec. 29):
- 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
nor more than one year;
- one
month, if the employee has been employed for more than one year.
Notice of termination must be given
in writing and state the reasons for termination and the date on which
the notice is given. An employer and an employee may agree to a longer
notice period provided that it is of equal duration for both parties.
An employer must not give notice of
termination during an employee’s period of leave or run concurrently with
any such period of leave.
Payment in lieu of notice is possible,
for any cause recognized by law (sec. 30). In this case the employer may
pay the employee the remuneration the employee would have received, if
the employee had worked during the period of notice.
If the reason for an intended dismissal
is the reduction of the workforce arising from the reorganisation or transfer
of the business or the discontinuance or reduction of the business for
economic or technological reasons, an employer must inform the labour Commissioner
and any trade union which the employer has recognised as the exclusive
bargaining agent (sec. 33 (1)). The information must be provided at least
four weeks in advance and detail the intended dismissals, 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.
In case of redundancy, the employer
must negotiate in good faith with the trade union or workplace representatives
on, inter alia, alternatives to dismissals and how to avert the adverse
effects of the dismissals. The employer must select the employees for dismissals
according to criteria that are either agreed or fair and objective.
If, after the negotiations and selections
concerning the dismissals arising from redundancy, there is no agreement
between the parties, either party may refer the matter to the Labour Commissioner
who may approve or refuse the dismissals (sec. 33 (4)).
Severance pay
An employer must pay severance pay
to an employee who has completed 12 months of continuous service (sec.
34), if the employee:
- is
dismissed;
- dies
while employed; or
- resigns
after reaching the age of 65 years.
An employee is not entitled to severance
pay (sec. 34 (2)):
- in
case of a fair dismissal on grounds of misconduct or incapability;
- if
the employee unreasonably refuses to be reinstated; or
- if
the employee unreasonably refuses to accept employment on no less favourable
terms.
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. 34 (3)).
Avenues for redress
Chapter 8 “Prevention and resolution of disputes”
of the LA contains Part B “Conciliation of disputes” and Part C “Arbitration
of disputes”.
As regards disputes of interest, any party to a
dispute may refer the dispute in the prescribed form to the Labour Commissioner
or any labour office (sec. 80).
Sec. 82 of the LA deals with arbitration of disputes
which mean complaints relating to the breach of a contract of employment
or a collective agreement. Any party to a dispute may refer the dispute in
writing to the Labour Commissioner or any labour office (sec. 83 (1)). If
the dispute concerns a dismissal, it must be done within six months after
the date of dismissal.
Unless the dispute has already been conciliated,
the arbitrator must attempt to resolve the dispute through conciliation before
beginning the arbitration (sec. 83 (6)).
The arbitrator may make any appropriate arbitration
award including:
- an
interdict;
- an
order directing the performance of any act that will remedy a wrong;
- a
declaratory order;
- an
order of reinstatement of an employee;
- an
award of compensation or damages (sec. 83 (15)).
Within 30 days of the conclusion of the arbitration
proceedings, the arbitrator must issue an award with concise reasons signed
by the arbitrator (sec. 83 (18)).
An arbitration award:
- is
binding unless it is advisory;
- becomes
an order of the Labour Court on filing the award in the Court by any party
affected by the award or the Labour Commissioner (sec. 84 (1)).
A party to a dispute may appeal to the Labour Court
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. 86 (1)).
A party to a dispute must note the appeal within
30 days after the award being served on the party (sec. 86 (2)).
In any proceedings concerning a dismissal:
- the employee must establish the existence of the dismissal; and
- if the existence of the dismissal is established, the employer must prove
that the dismissal is fair (sec. 32 (3)).
Any employer who contravenes or fails
to comply with provisions on the redundancy procedures commits an offence
and is liable, on conviction, to a maximum fine of N$ 10 000 or maximum
imprisonment of 12 months, or both (sec. 33(6)).
Further information
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