Referencias
Namibia ratified the Termination of Employment Convention, 1982 (No. 158) in 1996.
PROCLAMATION
Proclamation No. 16 - State of Emergency - Covid-19: Suspension of Operation of Provisions of Certain Laws and Ancillary Matters Regulations: Namibian Constitution
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GOVERNMENT NOTICE No. 110 - Labour Directives relating to COVID-19: State of Emergency - Covid-19 Regulation
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(ver en NATLEX
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Codes of good practice on industrial actions and picketing Labour Act, 2007, (No. 208).
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Labour Amendment Act, 2012 (Act No. 2 of 2012)
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Labour Act [LA], No. 11 of 2007 (last amended in 2022).
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Ámbito de aplicación
Tamaño de las empresas excluidas (≤): ninguna
Categorías de trabajadores excluidas: cuerpos de seguridad estatales, personal de prisiones, policía, ejército
Sec. 2 LA: 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.
The Labour Amendment Act 2012 amended Art. 128 LA to include within the definition of ‘employee’ and scope of the Act, an individual, except an independent contractor, whom a private employment agency places with a user enterprise, is an employee of the user enterprise, and the user enterprise is the employer of that employee. Prior to this amendment, private agency employees were not regulated.
Notas / Comentarios
▷ Proclamation No. 16, published in Government Gazette No. 7194 on April 28, 2020, titled "State of Emergency – COVID-19 Suspension of Operation of Provisions of Certain Laws and Ancillary, Matters Regulations: Namibian Constitution" suspends certain provisions of the Labour Act during the lockdown to protect employees from adverse employment actions resulting from the impact of COVID-19. In particular, employers were prohibited from dismissing employees, terminating contracts, or serving notices of intended dismissal (as per Section 34, Labour Act) for reasons related to the actual or potential impact of COVID-19 on business operations.
In this respect, under paragraph 19 of Proclamation No. 16, subparagraphs 1 (a), 4, 6, 7, and 8 provide for various aspects related to the dismissal of employees during the COVID-19 lockdown.
→ Para 19 (1)(a): "Despite anything to the contrary in any provision of the Labour Act, 2007 (Act No. 11 of 2007) (hereafter “the Act”), an employer may not, during the lockdown - dismiss an employee or terminate any contract of employment or serve a notice of intended dismissal in terms of section 34 of the Act for reasons related to the actual or potential impact of Covid-19 on the operation of the employer’s business". (...).
→ Para 19 (4): "If an employer has, prior to the commencement of these regulations, dismissed an employee or employees or forced an employee to take unpaid leave or annual leave due to the actual or potential impact of COVID-19 on their business operations, that employer must, as soon as practicable -
(a) reinstate such dismissed employees; and
(b) engage the dismissed employees in negotiations about their conditions of employment during the lockdown period".
→ Para 19 (6): "If, prior to the commencement of these regulations, an employer has notified his or her employees of an intended dismissal in terms of section 34 of the Act for reasons related to actual or potential impact of COVID-19 on the operations of the employer’s business, the date of the intended dismissal is deemed to be 28 days after the end of the lockdown period, unless a later date is specified in the notice".
→ Para 19 (7): "If, after the period of lockdown, an employer wishes to dismiss employees for reasons related to the actual or potential impact of COVID-19, the employer must do so in compliance with section 33 or section 34 of the Act, including negotiations over the right of the employees to be recalled to their former or comparable positions as the employer’s operation recovers".
→ Para 19 (8): "An employer or any other person who -
(a) dismisses an employee or terminates any contract of employment or serves a notice of intended dismissal in contravention of subregulation (1)(a);
(b) forces an employee to take unpaid leave or annual leave in contravention of subregulation (1)(b);
(c) reduces the remuneration of any employee without following the process outlined in subregulation (2);
(d) fails or refuses to reinstate a dismissed employee or to engage a dismissed employee in negotiations in contravention of subregulation (4); or
(e) dismisses an employee without complying with the requirements of subregulation (7), commits an offence and on conviction is liable to a fine not exceeding N$10 000, or to imprisonment for a period not exceeding two years or to both the fine and imprisonment".
▷ Government Notice No. 110, published on April 29, 2020, in Government Gazette No. 7195, impacted collective dismissals by requiring employers to negotiate with employee representatives on retention categories and selection criteria, in addition to the requirements of section 43 of the Labour Act. The Notice (No. 110) reinforces worker protections during the pandemic, but does not alter the requirement for termination under Part F (§§ 29-37) of the Labour Act.
→ In this respect, paragraph 2 of the Notice No. 110 indicates that: "In addition to the requirements provided for under section 34 of the Act, the following topics form part of the subjects of the negotiations of a dismissal:
(a) categories and manner of selection of employees to retain;
(b) support for retraining of affected employees;
(c) severance pay for employees; and
(d) recall rights of retrenched employees".
Reformas legislativas en curso:
In its Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022), the Committee takes note of the Government's indication 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".
CDD regulados: No
Razones de utilización legítima de CDD: razones materiales y objetivas
Sec. 128(C) LA, as amended by the 2012 Amendment Act does not provide a list of valid reasons for fixed-term contracts, but does establish a legal presumption that an employee is employed indefinitely, unless the employer can establish a justification for employment on a fixed term.
Número máximo de CDD consecutivos: sin restricción
Duración máxima acumulativa de CDD consecutivos: sin limitación
Duración maxima del periodo de prueba (en meses):
sin restricciónThere is no reference to probationary period in the LA.
Obligación de motivar el despido: Si
Motivos autorizados (despido justificado):
Motivos prohibidos: estado civil, embarazo, licencia de maternidad, responsabilidades familiares, raza, color, sexo, religión, opinion política, origen social, afiliación sindical y actividades sindicales, discapacidad, situación económica, ejercicio de un derecho, estatus VIH, origen étnico
Sec. 33 (2) LA lists the cases of unfair dismissals, which occur:
- because the employee discloses information that he or she is entitled or required to disclose to another person;
- for the reasons related to an employee's lawful trade union activities,
- because of the exercise of any right conferred by the LA or the terms of the contract of employment; or
- because the employee fails or refuses to do anything that an employer must not lawfully permit or require an employee to do.
In addition constitute an unfair dismissal any dismissal based on: sex, race, colour, ethnic origin, religion, creed or social or economic status, political opinion and marital status (sec. 33(3) LA)
See also: Sec. 5(2) LA which forbids employer to discriminate employees in any decision, which includes termination, on account of family responsibilities, degree of physical or mental disability, AIDS or HIV status; or previous, current or future pregnancy (in addition to the above-mentioned grounds listed in sec. 33(3))
The dismissal of an employee for disciplinary reasons in contravention of sec. 33 LA constitutes an unfair labour practice (sec. 48 LA).
On maternity leave, see sec. 26(5) LA.
▷ Remarks: Section 5, subsections 9 and 10 of the Labour Act provide for cases of "Constructive dismissal", which is defined as a situation whereby an employee resigns with or without notice and claims that his/her resignation was because the employer made it intolerable for him/her to remain in employment. However, such an employee has the burden of proof to show that he/she did not wish to terminate the employment relationship but was driven to do so by the employer. Thus, "constructive dismissal" may be deemed "unfair dismissal", as highlighted under section 33 of the Labour Act, and entitles an employee to remedies available for unfair dismissal.
(See: Opinion – Namibian Labour Act ambiguous about constructive dismissal https://neweralive.na/opinion-namibian-labour-act-ambiguous-about-constructive-dismissal-2).
→ Section 5 (9) of the Labour Act: "Where sexual harassment is perpetrated by an employer against an employee, and that employee resigns as a result of the sexual harassment, that resignation constitutes a constructive dismissal.
→ Section 5 (10) of the Labour Act: "A constructive dismissal contemplated in subsection (9) may constitute unfair dismissal for the purposes of section 33, which entitles the employee to remedies available to an employee who has been unfairly dismissed".
Trabajadores que gozan de una protección particular (fuero): mujeres embarazadas o con licencia de maternidad
See sec. 26(5) LA: An employer must not dismiss an employee during her maternity leave or at the expiry of that leave on:
- economic grounds (as listed in sec. 34 on collective dismissal)
- any grounds arising from her pregnancy, delivery, or her resulting family status or responsibility.
The prohibition does not apply if the employer has offered the employee comparable alternative employment; and she has unreasonably refused to accept that offer.
Forma de la notificación del despido al trabajador: escrita
Sec. 30(3) LA provides that notice of termination must be given in writing, stating the reasons for termination, if the termination is by the employer, and the date on which the notice is given, which may be:
(a) on any working day in respect of an employee who has been employed for four weeks or less
(b) on or before the last working day of the week in respect of an employee has been employed for more than four weeks but less than a year; and
(c) on the first or the 15th of the month in respect of an employee who has been employed for over a year.
Plazo de preaviso:
Sec. 30(1) LA set forth statutory minimum notice periods according to the employee's length of service, as follow:
- 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 not more than one year;
- one month, if the employee has been employed for more than one year.
An employer and an employee may agree to a longer notice period provided that it is of equal duration for both parties (sec. 30(2) LA)
Indemnización sustitutiva de preaviso: Si
Sec. 31(1) LA provides that instead of giving an employee notice in terms of section 30, an employer may pay the employee the remuneration the employee would have received, if the employee had worked during the period of notice.
Notificación a la administración: No
Except in the event of redundancy (see under "Collective dismissals for economic reasons"): art. 34 LA.
Notificación a los representantes de los trabajadores: No
Except in the event of redundancy (see under "Collective dismissals for economic reasons"): art. 34 LA.
Aprobación de la administración publica o de organismos judiciales: No
Acuerdo de los representantes de los trabajadores: No
Definición de despido colectivo (número de empleados afectados) The Labour Act provides for a specific regime in the event of any dismissal based on the reduction of the workforce arising from the re-organisation or transfer of the business or the discontinuance or reduction of the business for economic or technological reasons. However, it does not specify the number of employee concerned.
See sec. 34 LA.
Notificación a la administración Yes
Sec. 34(1) d) LA: In case of redundancy, the employer must negotiate in good faith with the trade union or workplace representatives on alternatives to dismissals, the selection criteria, how to minimise the dismissals; the conditions on which the dismissals are to take place; and how to avert the adverse effects of the dismissals.
Notificación a los sindicatos (representantes de los trabajadores) Yes
Sec. 34(1) (a) LA: Notification to the Labour Commissioner at least four weeks before the intended dismissals are to take place. The information shall include the reasons for the reduction in the workforce, the number and categories of employees affected and the date of the dismissals.
Notificación a los representantes de los trabajadores: Yes
Sec. 34(1) (a) and (b) LA: Notification to any trade union which the employer has recognised as the exclusive bargaining agent in respect of the employees at least four weeks before the intended dismissals are to take place. The information shall include 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.
Acuerdo de los sindicatos (representantes de los trabajadores) No
Acuerdo de los representantes de los trabajadores No
Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio) No
No rules on the determination of selection criteria in the legislation reviewed. Selection criteria are referred to in sec. 34 (1) d) LA as one of the elements to be negotiated with to the trade union or worker representatives. The employer shall select the employees according to criteria that are either agreed or fair and objective (sec. 34 (1) e) LA)
Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...) No
Reglas de prioridad para la re-contratación Yes
Sec. 34(1) d) LA: In case of redundancy, the employer must negotiate with the trade union or workers representatives on alternatives to dismissals, how to minimise the dismissals and how to avert the adverse effects of the dismissals.
Notas / Comentarios
See: Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022).
Severance pay:
An employer must pay severance pay to an employee who has completed 12 months of continuous service (sec. 35 LA), if the employee:
- is dismissed ;
* dies while employed; or
* resigns after reaching the age of 65 years.
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. 35 (3)).
However, an employee is not entitled to severance pay (sec. 35 (2)):
- in case of a fair dismissal on grounds of misconduct or poor work performance;
- if the employee unreasonably refuses to be reinstated; or
- if the employee unreasonably refuses to accept employment on no less favourable terms.
tenure ≥ 6 meses: 0 semana(s).
tenure ≥ 9 meses: 0 semana(s).
tenure ≥ 1 año: 1 semana(s).
tenure ≥ 2 años: 2 semana(s).
tenure ≥ 4 años: 4 semana(s).
tenure ≥ 5 años: 5 semana(s).
tenure ≥ 10 años: 10 semana(s).
tenure ≥ 20 años: 20 semana(s).
Redundancy payment:
No specific provision on redundancy payment. However, dismissed employees are entitled to severance pay in the event of any dismissal (not based on misconduct or poor performance) (sec. 35 LA). Economic dismissals are therefore included under severance pay.
tenure ≥ 6 meses: 0 semana(s).
tenure ≥ 9 meses: 0 semana(s).
tenure ≥ 1 año: 1 semana(s).
tenure ≥ 2 años: 2 semana(s).
tenure ≥ 4 años: 4 semana(s).
tenure ≥ 5 años: 5 semana(s).
tenure ≥ 10 años: 10 semana(s).
tenure ≥ 20 años: 20 semana(s).
mineros: Si
No legal limits on the amount of compensation for unfair dismissal to be awarded by the arbitrator (see sec. 86(15) c) LA)
directores/ gerentes: Si
Sec. 86(15) d) LA provides that an arbitrator to a dispute may make any appropriate arbitration award, including an order of reinstatement of an employee.
policía: Si
Sec. 86(5) LA: "Unless the dispute has already been conciliated, the arbitrator must attempt to resolve the dispute through conciliation before beginning the arbitration."
See also Sec. 85(6) LA: "If the conciliation attempt is unsuccessful, the arbitrator must begin the arbitration".
In addition to Labour Court: Arbitration tribunal and Labour commissioner
Sec. 85 LA establishes arbitration tribunals for the purpose of resolving disputes. Art 85(2) provides that Arbitration tribunals operate under the auspices of the Labour Commissioner, and have jurisdiction to
(a) hear and determine any dispute or any other matter arising from the interpretation, implementation or application of this Act; and
(b) make any order that they are empowered to make in terms of any provision of this Act.
Sec. 86(1) LA provides that unless a collective agreement provides for referral of disputes to private arbitration, any party to a dispute may refer the dispute in writing to
(a) the Labour Commissioner; or
(b) any labour office.
The Labour Court will only be competent to hear appeals 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. 89 (1) LA).
Arbitraje: Si
Arbitration is the ordinary mechanism settling disputes relating to the breach of a contract of employment or a collective agreement (see sec. 84 to 86 LA). Any party to such dispute may refer it in writing to the Labour Commissioner or any labour office which will then refer the dispute to an arbitrator to attempt to resolve the dispute through arbitration; (sec. 86 (1) LA).
If the dispute concerns a dismissal, it must be submittted within six months after the date of the dismissal. Otherwise, it must be submitted within one year after the dispute arises.
Duración del procedimiento: 12mes(es)
Between 3 and 12 months depending on Court scheduling.
See: 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 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."
See: Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)
"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."