Doing business in Namibia; PRACTICAL GUIDE FOR EMPLOYERS AND EMPLOYEES NAMIBIAN LABOUR ACT
PRACTICAL GUIDE
FOR EMPLOYERS AND EMPLOYEES
NAMIBIAN LABOUR ACT
INDEX
2. Basic Conditions of Employment............................................................ 3
3. Termination of Contracts of Employment............................................... 10
4. Unfair Dismissals and Unfair Disciplinary Action..................................... 16
6. The Complaints Procedure................................................................... 20
ISBN: 99916-751-1-6
Published by the Namibia Institute for Democracy in
co-operation with the Law Society of Namibia © May 1998.
All
rights reserved.
I. INTRODUCTION
The Namibian Labour Act (Act 6 of 1992) contains extensive
and detailed provisions relating to basic conditions of employment, and rules
concerning termination of service, dismissal of workers, and disciplinary
action.
These provisions set out the minimum conditions which apply
to all contracts of employment between individual employers and their
individual workers. Nevertheless, it should be clearly understood that the
basic conditions laid down in the Labour Code are minimum conditions, and there
is nothing to prevent an employer from granting, or agreeing to, more
favourable conditions if he or she so wishes. Such agreements are often
reflected in registered collective agreements between employers, or their
organizations, and trade unions. The provisions contained in such agreements
are enforceable in the same way as the
basic conditions laid down in the Labour Code itself.
The Labour Act – or Labour Code as it is commonly known –
also provides means by which persons who believe they are not receiving the
minimum conditions applicable to their employment, are able to lodge complaints
with the district labour courts and have the situation corrected. In cases of
discrimination or harassment, complaints are dealt with by the Labour Court.
In circumstances where some infringement of these conditions
is thought to have occurred, the assistance of Labour Inspectors employed by
the Ministry of Labour and Human Resources Management can often resolve the problem without the
need to bring the matter to court. This form of assistance is described later
in this booklet.
Generally, any person, whether they be an employer or
worker, who needs help or information concerning the basic conditions of
employment dealt with in this booklet, should seek the assistance of their
local Labour Inspector, or contact the Directorate of Labour, Ministry of
Labour and Human Resources Development, in Windhoek.
The basic conditions of employment contained in the Labour
Act are summarized in the remaining pages of this booklet.
2
2.
BASIC CONDITIONS OF EMPLOYMENT
SECTION 26: Maximum weekly ordinary working
hours
Security Guards – 60 hours (includes meal breaks).
All other employees – 45 hours (excludes meal breaks).
Exceptions: Overtime
and Sunday work not included.
SECTION 27: Maximum daily ordinary working hours
for day workers
Security Guards – 12 hours x 5 days, or 10 hours x 6 days.
Casual workers – 9 hours.
All other employees – 9 hours x 5 days, or 72 hours
x 6 days, or 8 hours x 5 days plus 5 hours x 1 day.
Exceptions: Overtime
and Sunday work not included.
SECTION 28: Maximum daily ordinary working hours
for day workers
Security Guards – 12 hours x 5 shifts/week, or 10 hours x 6
shifts/week. All other employees – 9 hours x 5 shifts/week, or 72 hours
x 6 shifts/week, or 8 hours x 5 shifts plus 5 hours x 1 shift/week.
Exceptions: Overtime
not included. Shift workers employed on Sundays and public holidays in
accordance with Section 33, are limited to 72 hours per shift.
SECTION 29: Extensions of ordinary working hours
Working hours of shop employees may be extended by 15
minutes per day or shift to attend to customers after ordinary working hours,
but aggregate extensions may not exceed 1 hour per week.
SECTION 30: Maximum spread-overs
“Spread-over” refers to the period in any day measured from
the time an employee commences work until he or she ceases to work for that
day.
Not more than 12 hours.
Exceptions:
Emergency work, and work connected with arrival or departure of ships and
aircraft, or vehicles transporting passengers, livestock or perishables.
SECTION 31: Meal interval
– 1
Hour meal interval after 5 hours continuous work.
Employer and employee may agree to reduce
meal interval to not less than 30 minutes, subject to notice being given to the
Permanent Secretary of Ministry of Labour and Human Resources Development. –
Meal intervals may not exceed 12 hours.
Exceptions:
– Emergency
work
– Security
guards
– Shiftworker
engaged in any industry approved by the Minister to be continuous work.
SECTION 32: Overtime
– Overtime
is all time worked in excess of ordinary working hours. (See also Section 33)
– Not
more than 3 hours per day, or 10 hours per week.
– Remuneration
paid at 12 times normal rate for overtime on ordinary week days, and
double normal rate for overtime worked on Sundays and public holidays.
Exceptions:
Maximum hours overtime can be exceeded on emergency work and work related
to arrival and departure of ships and aircraft, or vehicles transporting
passengers, livestock and perishables.
SECTION 33: Work on Sundays and public holidays
– No
employee may be required to work on Sundays or public holidays.
Exceptions:
– Emergency
work and work connected with arrival and departure of ships and aircraft, and
vehicles transporting passengers, livestock or perishables.
– Shops,
hotels, boarding-houses or hostels lawfully open on Sundays or public holidays.
– Private
domestic work.
4
– Essential
farming operations.
– Any
industry approved by the Minister in which work is required to be performed
continuously.
– Any
other work approved by Permanent Secretary of the Ministry of Labour and Human
Resources Development but only subject to concurrence of employees concerned.
– At
the request of an employee, payment for work on Sundays and Public Holidays is
to be either:
(a) double
normal rate of remuneration for time actually worked; or
(b) 12 times
normal rate of remuneration for time actually worked, plus equivalent time off
in the succeeding week.
SECTION 34: Nightwork
– Nightwork
is any work performed between 20:00 and 07:00. – Remuneration payable at normal rate plus 6%.
Exceptions:
Persons under 18 years of age and females 8 weeks before and
8 weeks after their date of confinement
may not be employed on night work.
SECTION 35: Calculation of remuneration
Sets out formula to be used in calculating various rates of
remuneration for various purposes, namely:
– Hourly
rate = Weekly wage ÷ ordinary working hours.
– Daily
rate = Weekly wage ÷ number of days worked i.e. 5 or 6; or Hourly rate x number
of hours worked.
– Weekly
rate = Fortnightly rate ÷ 2; or Monthly
rate ÷ 43 .
– Monthly
rate = Fortnightly rate x 26 or Weekly rate x 43 .
Where remuneration is paid other than on the basis of time
worked, the weekly rate is deemed to be the average weekly income received in
preceding 13 weeks.
The hourly rate in this
case is the average weekly income + 45, and the daily
rate is the hourly rate x 9 in case of a 5-day week, and hourly rate x 72 in
case of a 6-day week.
SECTION 36: Payment of remuneration
– 
Remuneration
payable is to be in a sealed envelope with statement of particulars.
– Must
be paid within 1 hour of completion of ordinary working hours.
– May,
at written request of employee, be paid into bank, building society or post
office account, but statement must be handed to employee.
– Remuneration
to be paid weekly, or by agreement, fortnightly or monthly.
– Casual
employee to be paid daily, or by agreement, weekly, fortnightly or monthly.
Exceptions:
Casual employees not entitled to request payment into bank,
building society or post office account.
SECTION 37: Prohibited acts relating to payment
of remuneration
No deductions are
permitted except:
– by
court order or other legal provision;
– unauthorised
absence;
– short
time working (but not more than 3 of remuneration normally
paid may be de-ducted for the period in question);
– amounts
authorized by employees, up to one-third
of total remuneration,
for hous-ing, loans, vacation, medical, insurance, savings, pension
funds, and trade union membership fees or levies.
Employers may not require an employee to use an employer’s
shop or buy goods from an employer, or
levy a fine except by way of disciplinary action lawfully undertaken.
6
SECTION 38: Employees required to live in at place of employment or
other premises
(a) Employer
must provide reasonable housing, including sanitation andwater for employee,
and, where employee is required to live on agricultural land, for his/her
spouse and dependent children.
(b) Employees
on agricultural land also may keep such livestock, and carryon cultivation to
meet reasonable needs of self and dependants.
Exceptions:
– Point
(b) will not apply where employer and employee agree that food or rations, or
additional allowance, be provided in lieu
– “Dependants”
means husband or wife of employee, whether or not married, and their dependant
children.
SECTION 39: Annual leave
–
24 Consecutive days
for each 12 months e m p l o y m e n t , extended by any public
holidays falling on an ordinary working day within the period of
leave.
–
Leave must
be granted within 4 months of
completed leave cycle, or by written agreement of employee, within 2 further
months.
–
May not be granted
concurrently with sick leave, maternity leave, or with a
period of notice of termination.
–
Casual employees are not excluded, but should be
granted pro-rata leave in line with hours/days worked.
SECTION 40: Sick
leave
– 5-Day
week employees are entitled to 30 working days, and 6-day week employees to 36
working days, in each 36 months period of employment.
– Provided
that during first 12 months to employment, 5day week employees accrue 1 day for
each 5 weeks of employment, other employees 1 day per month.
– Medical
certificate required for sick leave in excess of 2 consecutive days, or more
than 2 absences in eight weeks.
– Casual
employees are not excluded, but should be granted pro-rata leave in line with
hours/days worked.
SECTION 41:
Maternity leave
– After
12 months continuous service, a female employee is entitled to four weeks leave
before expected date of confinement, and at least eight weeks
leave after the date of confinement.
– Date
of confinement to be certified by medical practitioner.
– Leave
is without remuneration.
– The
rights of any female employee, including seniority, promotion, and other
benefits shall continue uninterrupted during period of maternity leave.
– Termination
during or at expiry of leave is not permitted where the job has become
redundant or the employee is no longer capable of performing her previous work,
unless reasonable steps to offer alternative employment have been taken, or
such offer has been unreasonably refused.
– A
female employee on maternity leave is entitled to Social Security Benefits.
8
SECTION 42: Child labour
– No
child under 14 years may be employed for any purpose.
– No
child under 15 may be employed in any mine or industrial undertaking. – No
child under 16 may be employed underground in any mine.
SECTION 43: Victimisation
– An employer shall not reduce an
employee’s remuneration, or impose terms and conditions of employment less
favourable, or disadvantage an employee in relation to other employees, because
the employee –
(a) has
given information required by any person involved in theadministration of the
Labour Act, or given evidence in a labour court
or to the Wages Commission;
(b) has
refused or omitted to do anything required by his employer whichis contrary to
any provision of the Labour Act; and
(c) is
or was a member of a trade union, or takes part outside workinghours, or with
the consent of the employer during ordinary working hours, in the formation or
lawful activities of any trade union.
No employer shall refuse to employ any person because the
employer suspects or believes, whether rightly or wrongly, that the person is
or was a member of any trade union, or takes part in the formation or lawful
activities of any such union.
3. TERMINATION OF CONTRACTS OF EMPLOYMENT
Provisions concerning termination of service, including
required periods of notice, the effect of death of employer or closure of a
business or partnership, procedures to be followed in case of multiple
dismissals for economic or other reasons, the payment of severance allowances,
and providing certificates of employment, are summarized in the following
section.
Upon acceptance of the contract of employment, rights and
duties vest in both employers and employees. The Labour Act stipulates certain
terms and conditions of this contract, and it seeks to ensure that both
employers and employees keep their respective sides of the bargain.
There are basically four different ways in which a contract
of employment comes to an end:
1. Termination
of the contract by either party on notice given in terms of Section 47.
2. Termination
of contracts by reason of death or insolvency of an employer of winding up of a
company or dissolution of a partnership in terms of Section 48.
3. Collective
termination of contracts of employment (“retrenchment”), in which case the
specific procedure laid down in Section 50 needs to be followed by the
employer. It is not required of an employer in terms of Section 50 to consult
an employee before a decision is taken to terminate the employee’s contract of
employment.
4. Dismissal
– this issue will be dealt with in chapter 4. It must be noted at this stage
that not every termination of a contract is a dismissal. Only if termination
takes place on disciplinary grounds, or if the above procedures in respect of
termination have not been followed by the employer, can it be argued that the termination amounted to a
dismissal.
SECTION 47: Termination of contracts by notice
–
Periods of notice required by either employer or
employee: (a) less than 4 weeks of service – 1 day;
(b) more than 4 weeks but less than 1 year of
service – 1 week; (c) more than 1 year of service – 1 month.
10
– Notice
must be given in writing, except to or by illiterate employees.
– Notice
must not be given during, or run concurrently, with annual, sick or maternity
leave.
– Notice
can be paid in lieu by either employer or employee. – Remuneration may not be varied during period of notice.
SECTION 48: Termination of contracts by reason of death or insolvency
of employer, or winding up of company or dissolution of partnership
– Where
the employer dies, or becomes insolvent, a company is wound up, or partnership
is dissolved, the contract of employment of any employees shall terminate at
least 1 month after the date of death, insolvency, winding up, or dissolution.
– An
employee to whom any remuneration and other moneys are payable, is a preferent
creditor of a deceased or insolvent estate.
Exceptions:
An executor, administrator, trustee or liquidator may agree
to a longer termination period than 1 month.
SECTION 49:
Termination of contracts at place other than where recruited.
– An
employee whose contract of employment has been terminated at a place other than
where recruited must be provided with reasonable transportation, or an amount
equal to costs of such transportation, to enable employee to return to place of
recruitment.
– Applies
only where termination is on initiative of employer, or if employer contravenes
any provision of Labour Act or the contract of employment. Exceptions:
– Not
applicable if:
(a) employee
has completed 12 months uninterrupted employment, or
(b) employee
fails to comply with contract of employment, or if termination is for
misconduct, insubordination or incapability, or
(c) employee
refuses to be reinstated in comparable position after termination.
SECTION 50: Collective termination of contracts
of employment
– Any
employer who intends to terminate contracts of employment in respect of any or
all of his/her employees for economic or technological reasons, re-organise or
transfer the business, must inform:
(i) any
trade union recognized as an exclusive bargaining agent forthose employees, or
(ii) where
no such union exists, the elected workplace union representative, not less than
four weeks before the dismissals are to take place, of
(a) the
employer’s intentions,
(b) the
reasons therefore,
(c) the
number and categories of employees affected, and
(d) the
date or period over which the dismissals are to be carried out.
– The
Labour Commissioner must be advised in writing of all details of the proposed
dismissals.
– The
workers’ representatives must be afforded an opportunity to negotiate on behalf
of such employees, the conditions and circumstances under which the dismissals
are to occur, with a view to minimizing or averting any adverse effects.
Note: Failure on
the part of an employer to comply with these requirements may result in a fine
of N$4 000, or not more than 12 months’ imprisonment, or both.
SECTION 51:
Certificates of employment
– An employer must furnish any employee, on
termination of his/her contract of employment, with a certificate of employment
containing the following
particulars:
(i) name
and address of the employer;
(ii) nature
of the employer’s industry;
(iii) name
and address of employee;
(iv) capacity
in which employee was employed;
(v) employee’s
date of commencement anddate of termination;
(vi) remuneration
rate at date of termination; and
(vii) if
requested by employee, the reasonfor termination.
12
SECTION 52: Severance allowances
– An
employee who has completed at least 12 months’ uninterrupted employment, and
whose contract of employment is terminated by the employer, shall be paid one
weeks’ remuneration for each completed period of 12 months uninterrupted
employment.
– Payment
is to be calculated at the rate of remuneration applicable to the employee
immediately prior to termination.
– Severance
allowance is also payable where an employee has completed 12 months’ continuous
service, and
(i)
elects to terminate his/her contact at any time
after attaining 65 years of age, or
(ii) dies,
in which case the allowance is paid to any surviving spouse, or if there is no
spouse, to any children, and if no children, to the employee’s estate.
– The
amount of severance payment may be reduced or offset by -
(i)
the actuarial equivalent of any pension or
annuity to which the employee may be entitled from the date of termination;
(ii) any
lump sum payable on termination by way of gratuity, insurance policy or savings
scheme, insofar as this provision has been made by the employer.
– Persons
employed on seasonal work for two or more successive years by the same employer
are to be regarded as continuously employed for the purpose of qualifying for severance
payments, but only the time actually worked shall be taken into account when
calculating the payment to be made.
Exceptions:
Not applicable if -
(a) deceased
employer’s heirs,
(b) surviving
partner, and
(c) new
owner of a transferred business or company.
In such cases, service with previous employer is deemed to
be continuous with service with new employer, and must be counted as service
for purposes of any subsequent entitlement to severance payment. Employees who
are lawfully dismissed are not entitled to a severance allowance.
4. UNFAIR DISMISSALS AND UNFAIR DISCIPLINARY
ACTION
The Labour Code contains some very detailed provisions which
are intended to enable workers, who feel
that they have been unfairly dismissed or disciplined, to seek redress in the
district labour courts.
Disciplinary action must be substantively fair (the reason
why the employee is dismissed must be fair, eg. theft, assault on employer,
employee has consistently ignored written warnings, etc) and also procedurally
fair (the employee must be informed of the charge against him, and be given a
sufficient opportunity to respond to it and state his/her own side of the
story). Misconduct which is not serious, eg. arriving 10 minutes late for work
does not warrant dismissal. In cases of serious misconduct, eg. assaulting the
employer / fellow employees, refusing to obey reasonable orders or theft, an employee may be “summarily” dismissed, but
it is advisable to hold a disciplinary hearing in all cases involving serious
misconduct.
Briefly, any such actions must, if they are to be fair, be
taken for valid and fair reasons, and in compliance with a fair procedure.
Several reasons are automatically regarded as unfair, and the procedures
followed must be consistently applied in comparable circumstances.
When hearing complaints lodged under these provisions, the
district labour courts are required to take all the circumstances into account,
and may make any order that these circumstances may require.
SECTION 45: Meaning of unfair dismissals and/or
disciplinary actions
– Any
dismissal (whether or not notice has been given in accordance with the Labour
Act or any contract or collective agreement) or disciplinary action taken, without
a valid reason, and not in compliance with a fair procedure, shall be regarded
as having been taken unfairly.
– In
relation to any such actions, the following reasons shall not be regarded as
valid or fair.
•
Giving information to any person involved in the
administration of the Labour Act, or complying with any lawful requirement of
such a person.
•
Giving evidence before a Labour Court, district
labour court, or Wages Commission, or any other court of law.
•
Refusing to do anything contrary to any
provision in this Act, a collective agreement, or wage order.
•
Participating in trade union activity as a
member or otherwise.
•
Reasons based on an employee’s sex, race,
colour, ethnic origin, religion, creed, or social or economic status, political
opinion or marital status.
•
The performance of any act or an omission
permitted by this Act or any collective agreement, or the exercise of any right
conferred on the employee by the Act or collective agreement.
SECTION
46: Powers of district labour courts in
relation to unfair dismissals or unfair disciplinary actions.
Where it is proved that an employee has been dismissed or
disciplined, the employer must prove that such action was not taken unfairly.
– If
a district labour court is satisfied that an employee has been unfairly
dismissed, it may issue an order:
(i)
to reinstate employee in same or comparable
position;
(ii) to
pay an amount equal to any losses suffered through dismissal (whether employee
is reinstated or not); and
(iii) imposing
a disciplinary penalty if the court deems this to be just and equitable in the
circumstances.
– If
a district labour court is satisfied that unfair disciplinary action has been
taken against an employee, it may issue an order:
(i)
setting aside such action;
(ii) imposing
an alternative penalty which the court considers appropriate; and
(iii) referring
the matter back to the employer for reconsideration in the light of any
directions specified by the court.
– In
considering complaints under Section 45, the court is required to have regard
to:
(i)
the procedure by which the employer reached
his/her decision to dismiss or discipline employee;
(iii) referring
the matter back to the employer for reconsideration in the light of any
directions specified by the court.
– In
considering complaints under Section 45, the court is required to have regard
to:
(i)
the procedure by which the employer reached
his/her decision to dismiss or discipline employee;
(ii) the
manner in which this procedure has been followed in comparable circumstances;
(iii) the
conduct and capability of the employer;
(iv) the
extent to which the employer has complied with the relevant provisions of the
Labour Act or any collective agreement; and
(v) the
extent to which the employee has contributed to or caused his/her dismissal or
disciplinary action.
– The
district labour court must, in making an order, have regard to its practical
enforceability.
5. COMPLAINTS
Any employee or employer, who feels that they have been
adversely affected by a contravention of, or non-compliance with, any provision
of the Labour Act relating to basic conditions of employment, termination of
service, or unfair dismissals and unfair disciplinary action, may lodge a
complaint with a district labour court.
There are district labour courts for each magistrate’s
district, and the appropriate court to lodge a complaint with is the one for
the district in which the transgression has taken place.
The powers of the district labour
courts in relation to complaints, are essentially to make orders requiring
respondents to remedy whatever transgressions have occurred – i.e. to abide by
the relevant conditions or provisions in the Labour Act, or any relevant
collective agreement or contract of employment. If these orders are obeyed,
there is no further penalty. On the other hand, if the order is not obeyed, the
respondent will be in contempt of court
and may be penalised for that offence if found quilty.
The jurisdiction and specific powers of the district labour
courts in relation to the various provisions of the Code are not repeated here,
but may be studied by reference to the Labour Act. The relevant sections of the
Act are:
|
Jurisdiction and powers of district labour
courts |
Section 19 |
|
Powers of district labour courts relating to contraventions,
etc. of basic conditions of
employment |
Section 44 |
|
Powers of district labour courts relating
to unfair dismissals and unfair disciplinary action |
Section 46 |
|
Powers of district labour courts relating
to termination of contracts of employment |
Section 53 |
It is worth noting that any failure to comply with the
provisions of Section 50 – Collective Termination of Contracts of Employment –
is not handled by the labour court, but by a magistrate’s court at district or
regional level. This is because any transgression of this Section is a criminal
offence punishable by fine, or imprisonment, or both.
Complaints on any matter must be lodged in accordance with
the procedures and rules of the district labour courts.
A complainant or respondent may be represented in a district
labour court by any one of the following persons:
(i)
Himself or herself.
(ii) An
advocate or attorney.
(iii) Any
person duly authorized by the complainant.
(iv) If
a complainant so desires, he or she may be represented by an officer of the
Ministry of Labour nominated by the Permanent Secretary.
6. THE COMPLAINTS PROCEDURE
The
rules of the district labour courts came into operation on 19 November 1993.
These rules regulate the conduct of proceedings in the district labour courts.
All the rules are important to take note of, a few of which
are highlighted here:
– Complaints
must be lodged at the Clerk of the Court in the district where the complaint
arose or where the respondent resides or carries on business. (Rule 3)
– The
Clerk of the Court will fill in the relevant forms which must then be served on
the respondent.
– The
Clerk of the Court will then also fix a trial date which must be no earlier
than 30 days and not later than 60 days from the date of lodging of the
complaint. (Rule 5(1)(b))
– The
Clerk of the Court will also refer the matter to a labour inspector, and a
conference should take place before the date of hearing. The labour inspector
will inform the complainant and respondent of the date on which the conference
will be held and at the conference, he will attempt to settle the matter, or
investigate the matter further. (Rule 6)
– If
the respondent wishes to defend a complaint, he must put his reasons for
opposing the complaint in writing on the prescribed form, and serve it on the
complainant within 14 days of his receiving the complaint. The original form and proof of service on the complainant
must be then filed at the office of the Clerk of the Court.
– If
the respondent wishes to institute a counter complaint (a claim against the
complainant), he must then deliver this together with his reply in terms of
Rule 7. (Rule 8)
– A
complainant or respondent may ask the Clerk of the Court to summon any witness
they may need, or ask the Clerk of the Court to notify a person to produce
certain documents, books of account or registers at the hearing.
– If
the matter has not been settled at the pre-trial conference, the matter goes to
court. If the respondent is duly served with a copy of the complaint and a
notice of hearing, and he fails to attend the hearing, the court may make an
order against him for the amount or performance claimed. (Rule 10(4)) If the
complainant fails to attend the hearing, the court may dismiss the claim. (Rule
10(5))
– Once
the parties are in court and the case is called, the complainant usually starts
by giving evidence in the witness box. (If the complainant was dismissed, the
respondent starts, as he must show that the dismissal was fair.)
The court will swear the complainant in, and then the
witness will be required to present his side of the story. The complainant’s
evidence should include the following:
(i)
the date he/she started working for the
respondent,
(ii) his/her
salary at date of termination,
(iii) the
post in which he was employed, and the duties he/she was required to perform,
(iv) the
circumstances surrounding the termination of his employment,
(v) the
nature of his/her claim, and why he/she is claiming the specific amounts in
question: leave pay, severance allowance, etc.
(vi) the
complainant should also provide the court with any relevant documentation if
required, eg. a letter of appointment or salary slips.
It is necessary to provide the court with as many specific
details in regard to the claim as possible, as the court needs these details to
work out or doublecheck the monetary value of the claim.
– The
respondent or his/her representative may then ask the complainant questions.
After this, the court will excuse the complainant from the witness box and the
complainant may go and sit down. The complainant may then call his witnesses,
if he has any. When the complainant has finished his case, the respondent
starts his case by giving evidence. The complainant may then question him, when
the court gives him, permission, and
question any of his witnesses who may testify.
– When
the witnesses of the respondent have finished testifying, the court may ask the
complainant and respondent for any arguments or remarks they may have in light
of the evidence presented. Thereafter the court will make an order.
– If
an order for the payment of money is made against one of the parties, and such
party does not pay within the time ordered by the court, such party can be
proceeded against in terms of the normal debt recovery procedures mention in
the Magistrate’s Court Act (Rule 23). A party failing to abide by the order of
a district labour court can also be charged with contempt of court.
7. AFFIRMATIVE ACTION AND COMPLAINTS IN RELATION TO
UNFAIR DISCRIMINATION OR HARASSMENT IN EMPLOYMENT
The Labour Code includes special provisions to protect
actions which may be taken by employers to provide for the advancement of
persons who have been disadvantaged in the labour field by discriminatory laws
or practices prior to Namibia’s independence. These provisions derive their
authority from Section 23 of Namibia’s Constitution.
In addition, the Labour Code provides that the Labour Court,
where it is satisfied that any person or group of persons has been, is, or are
about to be, discriminated against or harassed in relation to employment or
occupation, may issue an order remedying the situation in whatever way the
Court deems to be appropriate.
These provisions are summarized on the following pages.
SECTIONS 106:
Affirmative action
Any employment policy or practices aimed at the advancement
of persons who have been disadvantaged in the labour field by discriminatory
laws or practices which were enacted or practised before Namibia’s independence
may be implemented, provided that they fall within the limits set by Section 23
of Namibia’s Constitution.
SECTION
107: Unfair discrimination or harassment in employment or occupation.
(a)
Sex, race, colour,
ethnic origin, religion, creed, social or economic status, political opinion,
marital status, sexual orientation, family responsibilities or disability, may
not be used as grounds for discriminating against, or harassing any person, in
relation to employment or occupation.
(b)
Any advertisement or notice which indicates an
intention to discriminate unfairly in employment or occupation on the grounds
set out in (a) is unlawful.
(c)
Unfair discrimination on grounds of sex shall be
regarded to have taken place if any term or condition of employment contained
in a contract of employment, or offered to a person, is less favourable than
that granted or offered to a person of the opposite sex for work of equal
value.
(d)
Any action or requirement by an employer in
relation to a group of persons which has an adverse affect on that group by
comparison to any other group defined in terms of (a), is presumed to be unfair
discrimination unless he contrary is proved.
(e)
Unfair discrimination shall not be regarded as
having occurred -
(i)
where a person is selected for employment
according to reasonable criteria such as ability, capacity, productivity or
conduct of that person,or the operational requirements of the occupation or
industry concerned;
(ii)
in the case of pregnant females or disabled
persons, where the pregnancy or disability renders the person unable to perform
the duties of the work concerned, or where employment of such persons is
prohibited by law.
(f)
In applying these provisions -
“disability” means any physical or mental disability which
restricts a person’s preparation for, entry into, or participation in
employment.
“employment or occupation” includes access to vocational
guidance, training and placement services; to employment, occupation or work;
promotion, demotion, and transfer’ remuneration and conditions of employment;
disciplinary actions; any other benefits, facilities or services.
“families
responsibilities” means any responsibilities which a person has toward dependant children in need of care
which may impair a person’s access to employment
or occupation.
“work of equal value” means work,
which, compared to any other work, is of a broadly similar nature and as such
does not justify different conditions of employment as between employees of
different sexes.
.
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8. REGISTERS
The keeping of certain registers by an employer is mandatory
in terms of the Labour Act. It is an
offence, punishable by a maximum fine of N$4 000.00 and/or 12 months
imprisonment, if such registers are not kept. It is important to note that the
accurate keeping of registers protects both the employer and the employee as
facts regarding employment contracts are then clear and readily ascertainable
should any dispute arise.
In terms of Section 4 of the Labour Act, Government Notice
174 of 1992 stipulates that the following registers shall be kept by every
employer in respect of every employee in
his service.
1. A
register containing the following particulars:
(a)
the name, age, identity number ( if any) and sex
of employee;
(b)
the ordinary hourly, daily, weekly, fortnightly
or monthly scale of remuneration of an employee;
(c)
the period in respect of which such remuneration
is payable;
(d)
the time (in hours of fractions thereof) per day
or per shift worked by the employee during the period referred to in paragraph
(c) in respect of-
(i)
ordinary working hours
(ii)
overtime
(iii)
night work
(iv)
work on Sundays
(v)
work on Public Holidays
(e)
the number of hours worked by the employee
during the period referred to in paragraph (c) in respect of (i) ordinary
working hours
(ii)
overtime
(iii)
night work
(iv)
work on Sundays
(v)
work on Public Holidays
(f)
remuneration payable to the employee in respect
of(i) ordinary working time
(ii)
overtime
(iii)
night work
(iv)
work on Sundays
(v)
work on Public Holiday
(vi)
any other amount or allowances
(g)
the gross amount of remuneration payable to the
employee
(h)
the particulars and amount of any deductions
from the amount referred to paragraph
(g) (and this should reflect the monthly Social
Security Commission deduction of 0.9% with a minimum deduction of N$2.70 which
amount deducted should be accompanied by the same payment by the employer and
forwarded on a monthly basis in arrears to the Social Security Commission)
(i)
the nett amount of remuneration payable to the
employee.
2. A
register relating to the granting of leave shall be kept by every employer of
every employee in his or her employment
containing the following particulars, namely-
(a)
the name, occupation and sex of the employee;
(b)
the date on which the employee commenced his or
her employment;
(c)
the period granted in respect of(i) annual leave
(ii)
sick leave
(iii)
maternity leave
(iv)
occasional leave;
(d)
the date on which such leave commended;
(e)
the date on which such leave ended;
(f)
the number days of such leave with full
remuneration granted to the employee;
and
(g)
the number days of such leave without
remuneration granted to the employee
3. A
register shall be kept by every employer of every employee in his or her
employment who is not a Namibian citizen containing the following particulars,
namely-
(a)
the name, nationality, date and place of birth
of such employee;
(b)
the date of employment of such employee;
(c)
the capacity in which such employment is
employed;
(d)
the period of the contract of employment of such
employment of such employee, if any;
(e)
a full description of academic, technical or
professional qualifications and any special expertise of such employee; and
(f)
the number and date for this issue of any permit
in relation to such employment of such employment of such employee and the date of expiry of such permit.
Each employee is entitled to receive their remuneration in a
sealed envelope with the following details listed below to be indicated on the
envelope or on the accompanying statement-
(a) the
name and identity number ( if any) or employee;
(b) the
name and postal and business address of employer;
(c) ordinary
hourly, daily, weekly, fortnightly or monthly scale of remuneration of
employee;
(d) the
period in respect of which such remuneration is payable;
(e) the
amount paid to the employee in respect of (i) his
or her remuneration
(ii)
overtime
(iii)
night work
(iv)
work on Sundays
(v)
work on Public Holidays
(vi)
any other remuneration or allowances
(f) the
gross amount of remuneration payable to the employee;
(g) the
particulars and amount of any deduction from the amount referred in paragraph
(f); and
(h) the
nett amount of remuneration payable to the employee.
In terms of Section 4(2), an employer shall retain all
records kept, or a microreproduction thereof, for a period not less than five years.
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