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Termination of Employment Convention, 1982 (No. 158) - Namibia (Ratification: 1996)

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Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Article 4 of the Convention. Valid reason for termination. In its previous comments, the Committee requested the Government to provide information relevant to the application of section 33(1)(a) of the Labour Act (Act No. 11 of 2007), which provides that an employer may not dismiss an employee without a “valid and fair reason”. The Committee recalls the Government’s indication in its previous report that the Labour Court has not established criteria for determining when a termination may be considered to have been made for a “valid and fair reason”. It further recalls that the Tripartite Task Force would consider including criteria for determining the existence of valid and fair reasons for dismissal in the Code of Good Practice to be included in the final amendments to the Labour Act. The Government reports that the Labour Act is still under review and that copies of the amended Act and Code of Good Practice will be shared with the ILO once these are finalized. The Committee also welcomes the copies of court decisions provided by the Government relevant to the application of section 33(1)(a) of the Labour Act. It takes particular note of the decision in Rossing Uranium Limited v Goseb (HC-MD-LAB-APP-AAA-2018/00034) [2019] NALCMD 4 (7 February 2019), in which the Court concluded that the overall requirement of substantive fairness within the meaning of section 33(1)(a) of the Labour Act must satisfy both the “valid reason” requirement, which demands the establishment of justification, and the “fair reason” requirement, which demands the establishment of reasonableness in the sense that the decision to dismiss is one that a reasonable employer acting fairly would take. Additionally, in its judgment in Fisheries Observer Agency v Everson, concerning an appeal against an arbitral award, the Court ruled that the process followed for dismissal was fair, but the reasons for dismissal were invalid and thus substantively unfair, because the employer failed to prove the employee’s breach of the employer’s written rule or policy. In its analysis, the Court cited the Rössing decision, observing that the two separate subrequirements of substantive fairness, a “valid” and “fair” reason, must both be met to satisfy the requirements of section 33(1)(a) of the Labour Act. In this context, the Committee recalls that “the more general the terms used in the applicable provisions, the more the definition of valid reasons for termination of employment depends on how these provisions are interpreted by the bodies that apply them (courts, industrial tribunals, arbitrators or other bodies). To understand the extent to which the reasons considered in practice as justifying termination of employment correspond to the valid reasons covered by the Convention, it is therefore important for countries which ratify the Convention, to communicate the decisions which form the basis of case law or to provide relevant information on how the provisions are applied in practice” (1995 General Survey on the Termination of Employment Convention (No. 158) and Recommendation (No. 166), paragraph 88). The Committee therefore invites the Government to continue to provide further information, including copies of additional court decisions, if any, relevant to the application of section 33(1)(a) of the Labour Act. The Committee also reiterates its request that the Government provide information on the status of the amendments to the Labour Act, and to transmit a copy of the amended legislation as well as the Code of Good Practice once these are adopted.

Articles 11 and 12. Serious misconduct. In its previous comments, the Committee requested the Government to continue to provide copies of relevant decisions rendered by the labour courts in applying section 35(2)(a) of the Labour Act, specifically in relation to dismissals on grounds of misconduct or poor work performance. In its response, the Government reiterates its previous reference to the Labour Court decision in Schmitz Services CC v. Titus and Another. In that case, the Court applied section 35(1) and (2) of the Labour Act in finding that the worker’s dismissal for misconduct was fair and that he was therefore not entitled to severance pay. No additional examples of jurisprudence were provided. The Committee recalls the relevance of jurisprudence to enable it to assess the manner in which Articles 11 and 12 of the Convention are applied in practice. The Committee therefore reiterates its request that the Government continue to provide copies of additional relevant decisions rendered by the labour courts applying section 35(2)(a) of the Labour Act, specifically in relation to dismissals on grounds of misconduct or poor work performance.

Application of the Convention in practice. The Committee notes the statistical information provided by the Government on cases registered and handled by the Labour Commissioner during the period from 1 April 2018 to 30 June 2019. The Government indicates that the Labour Commissioner handled 5,334 cases from 1 April 2018 to 31 March 2019. Of these, 2,191 cases were resolved through conciliation, 538 cases were resolved by arbitration, 2,605 were pending and 75 appeals had been registered. During the period from 1 April 2019 to 30 June 2019, the Labour Commissioner handled 1,143 cases, with 479 resolved through conciliation, 160 resolved by arbitration and 506 pending. Appeals were lodged in 20 cases. The Committee requests the Government to continue to provide updated information in its next report on the manner in which the Convention is applied in practice, including, for example, available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons in the country. The Committee also requests the Government to continue to provide copies of decisions rendered by the labour courts or the Labour Commissioner involving questions of principle relating to the application of the Convention.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Article 4 of the Convention. Valid reason for termination. The Government previously indicated that section 33(1)(a) of the Labour Act (Act No. 11 of 2007) provides that an employer may not dismiss an employee without a “valid and fair reason”. The Government explains that, in Namibia, this definition does not necessarily refer only to the capacity or conduct of a worker, but also to the operational requirements of an undertaking. Moreover, a “valid and fair reason” presupposes that the employer has followed fair procedures (procedural fairness) and considered elements relating to the worker’s capacity or conduct prior to termination (substantive fairness). The Government indicates that the Labour Court has rendered decisions in cases brought on appeal concerning the application of section 33(1)(a) of the Labour Act. The Labour Court has not, however, established criteria for determining when a termination may be considered to have been made for a “valid and fair reason”. The Committee notes the Government’s indication that the current Tripartite Task Force will consider the inclusion of criteria on valid and fair reasons for dismissal in the code of good practice, which will be included in the final amendments to the Labour Act (Act No. 11 of 2007). The Committee requests the Government to provide information, including copies of court decisions, relevant to the application of section 33(1)(a) of the Labour Act. It further requests the Government to provide information on the status of the amendments to the Labour Act, and to transmit a copy of the amended legislation and code of good practice once these are adopted.

Articles 11 and 12. Serious misconduct. In its previous comments, the Committee noted that section 35(2)(a) of the Labour Act provides that a worker who has been fairly dismissed due to misconduct or poor work performance is not entitled to receive a severance allowance. In its response to the Committee’s request for copies of decisions applying section 35(2)(a) of the Labour Act, the Government refers to Schmitz Services CC v. Titus and Another (LCA 44/2012) [2013] NALCMD 12 (16 April 2013), a case brought on appeal from arbitration. In its decision, the Labour Court applied section 35(1) and (2) of the Labour Act, holding that the worker’s dismissal for misconduct was fair and that therefore the worker was not entitled to severance pay under section 35(2) of the Labour Act. The Committee requests the Government to continue to provide copies of relevant decisions rendered by the labour courts applying section 35(2)(a) of the Labour Act, specifically in relation to dismissals on grounds of misconduct or poor work performance.

Application of the Convention in practice. The Committee requests the Government to provide updated information in its next report on the manner in which the Convention is applied in practice, including, for example, available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons in the country. The Committee also requests the Government to provide copies of decisions rendered by the labour courts or the Labour Commissioner involving questions of principle relating to the application of the Convention.

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. The Committee welcomes this information and invites the Government to provide in its next report copies of the decisions rendered by the labour courts or the Labour Commissioner involving questions of principle relating to the application of the Convention. It also invites the Government to continue providing general information on the manner in which the Convention is applied in practice, including, for example, available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons in the country (Parts IV and V of the report form).

Article 4 of the Convention. Valid reason. 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. Similarly, with reference to the operational requirements of the undertaking, the affected employees and their union require proper notification and collective bargaining processes ought to take place when the employer contemplates terminations for economic or similar reasons. The Committee invites the Government to include in its next report information on the practical application of this provision of the Labour Act by supplying copies of the leading decisions rendered on the criterion of “valid and fair reason”.

Article 6. Temporary absence due to illness or injury. The Government indicates that the Namibian legislation does not allow the valid termination of employment contracts due to temporary absence because of illness or injury.

Articles 11 and 12. Serious misconduct. The Committee noted that under section 35(2)(a) of the Labour Act, a worker who has been fairly dismissed due to misconduct or poor work performance shall not be entitled to receive a severance allowance. The Government reports that practical examples of serious misconduct are defined in the Pocket Guide to the Public Servant in Namibia as follows: striking illegally, misusing Government property for private purposes, repeated unauthorized absence from work, driving official vehicles without authorization and sleeping on duty. It further reports that if a worker commits such a violation for the first time, the employee will first receive a written warning. If a similar violation is committed a second time, the worker will receive a second and final written warning. If the violation is once again repeated, the worker will be dismissed for misconduct. The Committee invites the Government to include in its next report copies of the decisions rendered applying section 35(2)(a) of the Labour Act.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the information contained in the Government’s report received in December 2008 in which it refers to Labour Act No. 11 of 2007 (“the Act”). The Committee invites the Government to provide, in its next report, copies of the decisions taken by the labour courts or the Labour Commissioner involving questions of principle relating to the application of the Convention. Please also provide general information on the manner in which the Convention is applied in practice including relevant statistics from the activities of the Labour Commissioner and the labour court (number of appeals against unjustified termination, the outcome of such appeals, nature of the remedy awarded, average time taken for these appeals to be examined and number of terminations for economic or similar reasons) (Parts IV and V of the report form).

1. Article 4 of the Convention. Valid reason. The Committee notes that under section 33(1)(a) of the Act, employers are prohibited from dismissing an employee without a “valid and fair reason”. The Committee asks the Government to provide information on the practical application of this provision of the Act, in respect of what is considered to constitute a “valid and fair reason”. In particular, the Government is asked to confirm whether such reasons are connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.

2. Article 6. Temporary absences due to illness or injury. The Committee notes that under section 24(3) of the Act, an employer must pay an employee the daily remuneration for each day of sick leave if the employee produces a medical certificate. The Government is requested to provide more information, including in the context of the application of section 33(1)(a) of the Act, on how the national legislation and practice ensures that temporary absence from work because of illness or injury shall not constitute a valid reason for termination. The Government is also requested to indicate how “temporary absence from work” is defined and the extent to which medical certification is required.

3. Articles 11 and 12. Serious misconduct. The Committee notes that under section 35(2)(a) of the Act, a worker who has been fairly dismissed due to misconduct or poor work performance shall not be entitled to receive a severance allowance. The Government is asked to clarify how this provision operates in practice and, in particular, to provide practical information, such as case law, showing how “serious misconduct” has been defined.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s brief report received in November 2006 that refers to the promulgation of the Labour Act (No. 15 of 2004). It understands that Act No. 15 of 2004 has not been enforced in practice and a new Labour Act has been adopted in 2007 but has not yet been enacted. The Committee draws the Government’s attention to the importance of providing detailed and relevant information on the application of the provisions of the Convention, particularly when adopting a new legislation concerning matters covered by the Convention. The Committee therefore requests the Government to provide up to date and detailed information on the manner in which effect is given in national law and practice to each of the provisions of the Convention.

[The Government is asked to reply in detail to the present comments in 2008.]

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee takes note of the Government’s first report on the application of the Convention for the period between 1997 and 1999. It would appreciate receiving further information on the following points.

Article 2, paragraph 2, of the Convention. Please indicate if any of the categories of employed persons listed in paragraph 2 have been excluded in practice from the scope of the Convention and, if so, whether adequate safeguards exist to prevent abuse, as specified in Article 2, paragraph 3.

Article 2, paragraphs 4 and 6. The Committee notes that section 2 of the Labour Code provides that members of the Namibian defence force and the Namibian police force are excluded. Please provide copies of the provisions which govern protection against termination of employment for these categories of workers.

Article 4. Please provide information on how a valid reason is defined in law and practice, in particular, whether it is limited to the capacity or conduct of the worker, or the occupational needs of the enterprise.

Article 5(d). Please provide further information on how termination of employment on grounds of pregnancy, social origin or national extraction is prohibited by law.

Article 6. Please clarify whether termination of employment on the grounds of temporary absence from work due to illness or injury is considered an invalid reason for dismissal, as required under paragraph 1. Please define what constitutes temporary absence from work and specify the extent to which medical certification shall be required.

Article 7. Please specify whether a worker has the right to defend himself or herself against allegations of incapacity or misconduct before termination is effected.

Article 12. The Committee notes that section 52(1)(a) requires a minimum of 12 months’ uninterrupted employment for entitlement to a severance allowance. The Committee recalls that entitlement to severance allowance may not be made conditional on the length of service, although the amount of severance allowance may be based on length of service. Please provide further information on what provisions exist or are envisaged to ensure that all workers are entitled to a severance allowance. Please also specify whether "misconduct" as stated in section 52(2)(a) is limited to "serious misconduct" as defined in Article 11, and how serious misconduct is defined in law and practice to ensure that workers who are not guilty of serious misconduct receive the full severance allowance to which they are entitled under Article 12.

Article 14, paragraph 3. Please provide information on the minimum period of notice an employer must provide to the Labour Commissioner before carrying out mass terminations, and a copy of the relevant law or regulation.

Part V of the report form. Please provide general information on the manner in which the Convention is applied in practice, including available statistics on the activities of the bodies of appeal (number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons.

The Committee also notes the provisions contained in the draft Labour Bill and hopes that the final version will take into account the points raised above. The Committee would appreciate receiving a copy of the law when it is enacted.