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

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

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.