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

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

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.