Unfair dismissal in Namibia is defined by the Namibian Labour Act of 2007. The burden of the proof that a dismissal was fair lies with the employer. [1]
Namibia, officially the Republic of Namibia, is a country in southern Africa. Its western border is the Atlantic Ocean; it shares land borders with Zambia and Angola to the north, Botswana to the east and South Africa to the south and east. Although it does not border Zimbabwe, less than 200 metres of the Zambezi River separates the two countries. Namibia gained independence from South Africa on 21 March 1990, following the Namibian War of Independence. Its capital and largest city is Windhoek, and it is a member state of the United Nations (UN), the Southern African Development Community (SADC), the African Union (AU), and the Commonwealth of Nations.
A termination of employment is regarded an unfair dismissal when the employer dismisses the employee for the following reasons as set out in the Labour Act of 2007: [2]
- Without a valid and fair reason;
- with following procedures set out in section 34 if the reason for dismissal arise from section 34 (1) or subject to any code of good practise in section 137, a fair procedure in any other case[5].
- Because the employee discloses information that the employee is entitled or required to disclose to another person;
- When an employee fails or refuses to do anything that an employer must not lawfully permit or
require an employee to do;
- The employee exercises any right conferred by this Act or the terms of the Employment contract or collective agreement;
- The employee belongs, or has belonged, to a trade union;
- The employee takes part in the formation of a trade union
- The employee participates in the lawful activities of a trade union such as:
- outside of working hours;
- within working hours if permitted by the employer;
- It is unfair to dismiss an employee because of such employee’s sex, race, color, ethnic origin, religion, creed or social or economic status, political opinion or marital status.
An employment contract or contract of employment is a kind of contract used in labour law to attribute rights and responsibilities between parties to a bargain. The contract is between an "employee" and an "employer". It has arisen out of the old master-servant law, used before the 20th century. But generally, the contract of employment denotes a relationship of economic dependence and social subordination. In the words of the controversial labour lawyer Sir Otto Kahn-Freund,
"the relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In its inception it is an act of submission, in its operation it is a condition of subordination, however much the submission and the subordination may be concealed by the indispensable figment of the legal mind known as the 'contract of employment'. The main object of labour law has been, and... will always be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship."
A collective agreement, collective labour agreement (CLA) or collective bargaining agreement (CBA) is a written contract negotiated through collective bargaining for employees by one or more trade unions with the management of a company that regulates the terms and conditions of employees at work. This includes regulating the wages, benefits, and duties of the employees and the duties and responsibilities of the employer or employers and often includes rules for a dispute resolution process.
A trade union is an association of workers forming a legal unit or legal personhood, usually called a "bargaining unit", which acts as bargaining agent and legal representative for a unit of employees in all matters of law or right arising from or in the administration of a collective agreement. Labour unions typically fund the formal organization, head office, and legal team functions of the labour union through regular fees or union dues. The delegate staff of the labour union representation in the workforce are made up of workplace volunteers who are appointed by members in democratic elections.
Disputes between the Employer and Employee may be referred to the Commissioner or any district labour office. Complaints that used to go to the district labour court in the past now go to arbitration. The main powers of the Labour Commissioner are: [3]
- to register disputes from employees and employers
- to prevent disputes from arising through conciliation or advising to the parties involve;
- to attempt, through conciliation, to resolve disputes referred to his/her office;
- to arbitrate, wherever applicable, a dispute that has been referred to his/her office if the dispute remains unresolved after conciliation
