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

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

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.