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

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

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.