Faculty of Faculty of Human Sciences

Department of Social Sciences

Study Guide
Labour Law 1A (LAL111S)
Compiled by: R van Zyl

Revised Edition: 2017

 LABOUR LAW 1A

[LAL 111 S]
COMPILED BY: Ms R. van Zyl
B.Sc., H.E.D., B.Proc, LLM
NAMIBIA UNIVERSITY OF SCIENCE
AND TECHNOLOGY

WINDHOEK
NAMIBIA

MODERATED BY: Adv. P.J. de Beer

BLC LLB
PIETER J DE BEER LEGAL
PRACTITIONERS

WINDHOEK
NAMIBIA

COPYRIGHT: NAMIBIA UNIVERSITY OF SCIENCE

AND TECHNOLOGY

WINDHOEK
NAMIBIA

FIRST EDITION: 2009

REVISED EDITION 1: 2012

REVISED EDITION 2: 2017

 LABOUR LAW 1A
(LAL 111 S)

TABLE OF CONTENTS

UNIT 1
THE CONCEPT OF LAW p. 1-21

1. Introduction
2. What is “law”?
3. Do we need laws?
4. What is “labour law”?
5. The principle of constitutionalism
6. Who makes the laws?
7. The interaction between norms of behaviour and legal rules
8. The law and justice
9. Basic legal terms and concepts in a labour context

UNIT 2
CLASSIFICATION OF THE LAW p. 22-28

1. Introduction
2. The main divisions of the law

UNIT 3
SOURCES OF LABOUR LAW p. 29-38

1. Introduction
2. A brief history of Namibian law
3. The laws of Namibia
4. Sources of labour law in Namibia

UNIT 4
ADMINISTRATION OF JUSTICE p. 39-53

1. Introduction
2. The administration of justice
3. Distinction between criminal and civil proceedings
4. Remedies in a civil case
5. The structure of the courts
6. Jurisdiction of the respective courts
7. Tribunals
8. Appeal and review
9. The legal profession

i
UNIT 5
IDENTIFICATION AND CONCLUSION OF A CONTRACT OF EMPLOYMENT p. 54-73

1. Introduction
2. Identifying the employment contract
3. Conclusion of a contract of employment
4. Requirements for a valid contract of employment
5. Child labour restrictions
6. The parties to a contract of employment
7. Contents of a contract of employment
8. Commencement and duration of a contract of employment
9. Termination of a contract of employment

UNIT 6
TERMS AND CONDITIONS OF EMPLOYMENT p. 74-88

1. Introduction
2. Terms and conditions of contracts in general
3. Statutory terms and conditions of employment
4. Application of the Labour Act
5. How to determine the terms and conditions of employment of an individual employee
6. Variation of the terms and conditions of employment

UNIT 7
STATUTORY AND COMMON LAW DUTIES OF THE EMPLOYER p. 89-121

1. Introduction
2. Payment of remuneration
3. Duty to receive employee into service and the provision of work
4. Observe prescribed hours of work
5. Provide leave
6. Provide accommodation
7. Provide safe working conditions
8. Miscellaneous duties

UNIT 8
STATUTORY AND COMMON LAW DUTIES OF THE EMPLOYEE p. 122-134

1. Introduction
2. Provide services
3. Perform services diligently and competently
4. Be respectful and obey all lawful and reasonable instructions of the employer
5. Promote the employer’s business and act in good faith
6. Refrain from misconduct generally
7. Assist the employer to keep the workplace safe and healthy

ii
UNIT 9
REMEDIES FOR BREACH OF ANY TERM OR CONDITION p. 135-166
OF EMPLOYMENT

1. Introduction
2. Common law remedies
3. Statutory remedies
4. Discipline in the workplace

UNIT 10
EMPLOYER’S LIABILITY FOR THE ACTIONS OF THE EMPLOYEE p. 167-178

1. Introduction
2. The employer’s contractual liability to third parties
3. Vicarious liability of the employer for the delicts of the employee
4. Liability of the employer for the contravention of the Labour Act by a manager, agent
or employee

iii
 ICONS

OBJECTIVES

ADDITIONAL READING

 COMPULSORY READING

EXAMPLE

CASE LAW

i
Unit 1 The concept of law

Unit 1

The concept of law

Learning objectives

At the end of this unit, you should be able to:

• Give a definition of the term “law”

• Give a definition of labour law
• State the purpose of the law in general and labour law specifically
• Distinguish between individual- and collective labour law
• Explain the principle of constitutionalism
• Explain the interaction between norms of behaviour and legal rules
• Examine the different criteria for justice
• Briefly discuss the content of the rules of natural justice
• Identify and define the different basic legal concepts in a labour context

Additional reading

Amoo, S.K. (2008). An Introduction to Namibian Law – Materials and Cases. Windhoek:
Macmillan Education Namibia Publishers (Pty) Ltd.
th
Du Bois, F. (Ed.) (2007). Wille’s Principles of South African Law (9 ed.). Cape: Town: Juta & Co.
th
Du Plessis, J.V. & Fouché, M.A. (2012). A practical guide to Labour Law (7 ed.). Durban:
Butterworths.
nd
Du Plessis, L.M. & Du Plessis, A.G. (1995). An Introduction to Law (2 ed.). Cape Town: Juta &
Co. Ltd.

Govindjee, A. et al (2007). Commercial law 2 – fresh perspectives. Cape Town: Pearson

Education and Prentice Hall.

Hahlo & Kahn (1968). The South African Legal System and its Background. Cape Town: Juta.
nd
Kleyn, D. & Viljoen, F. (1998). Beginner’s Guide for Law Students (2 ed.). Cape Town: Juta &
Co.
th
Kopel, S. (2012). Guide to Business Law (5 ed.). Cape Town: Oxford University Press Southern
Africa (Pty) Ltd.

Maisel, P. & Greenbaum, L. (2001). Introduction to Law and Legal Skills. Durban: Butterworths.

1
Unit 1 The concept of law

Van Rooyen J.W.F. (Ed.) (2011). Namibian Labour Lexicon: The Labour Act, 2007 A to Z Vol. 2
(revised edition). Windhoek: Macmillan Education Namibia Publishers.
th
Venter, R. & Levy, A. (Eds.). (2014): Labour Relations in South Africa (5 ed.). Cape Town:
Oxford University Press Southern Africa (Pty) Ltd.

Employment Services Act 8 of 2011

Labour Act 11 of 2007

Labour Amendment Act 2 of 2012

Namibian Constitution

Website: www.namiblii.org

Website: www.lac.org.na

Website: www.saflii.org

1. INTRODUCTION

This unit provides a broad overview of some general aspects of the

concept of law, including its definition. We include a discussion on whether
we need laws, who makes the laws and we discuss whether justice is
reflected in law against the backdrop of the principle of constitutionalism.
Lastly, we conclude the unit by focussing on some basic legal terms and
concepts encountered in the field of labour law.

2. WHAT IS “LAW”?

The law can be defined as a system of rules governing human relations in

a community, which is recognised by the legal system and enforced by the
Courts of law as organs of the State’s authority. 1

Laws are thus rules informing legal subjects 2 what they may do (their
rights), while other rules inform them what they must do or may not do
(their duties or obligations). The legal rules also say what the
consequences of our actions will be, for example, punishment in the form
of imprisonment or a fine or both; an order to do something or not to do
something, to restore something and/or an order for the payment of
compensation to another party who suffered financial losses, known as
“damages”. 3

1
Hahlo & Kahn: The South African Legal System and its Background, Juta, Cape Town, 1968, at page 3
2
See explanation of “legal subjects” in paragraph 13 at the end of this unit.
3
See explanation of “damages” in paragraph 13 at the end of this unit.

2
Unit 1 The concept of law

The emphasis is on “duties”, however, most people put the emphasis on

“rights”. One must, though, remember that rights and duties are two
sides of the same coin: One person’s rights create duties for another. A
“right” can be described as any right, which a legal subject has with regard
to a specific legal object and which is protected by law. For example:
When two individuals conclude a contract of employment, the employee is
obliged to deliver a service while the employer is obliged to pay the
agreed remuneration in return for this service. The employer has the
corresponding right to receive the service and the employee the
corresponding right to receive the remuneration.

The legal subjects are obliged to abide by the laws of the State while the
State is obliged to secure the safety of its subjects. Legal rules, however,
do not only apply between the State and its subjects, it also applies
between individuals. For example, rules that prescribe the formalities that
some relationships require in order to be considered valid and binding by
the law, for example, the rules and formalities of marriage.

The origin and current laws of Namibia will be discussed further in Unit 3
of this guide, where you will learn that the Namibian legal system consists
of a variety of sources of law. Therefore, when reference is made to the
term “law”, it includes both legislation, as formal written rules, and other
legal rules applicable in Namibia.

3. DO WE NEED LAWS?

Without sometimes realising it, our daily lives are constantly regulated and
affected by laws.

Consider an ordinary day in the life of Molly: She is a single mother;

employed as a clerk at the Office of the Labour Commissioner in
Windhoek; has two children, aged 7 and 10 years respectively, both
attending school at Suiderhof Primary School; rents a flat in the backyard
of her brother’s residence and buys her groceries every month on credit
from the supermarket around the corner.

The law affects all of the following relationships in Molly’s life:

♦ Family relationships
♦ Employer-employee relationships
♦ Relationships between lessor and lessee
♦ Consumer-trader relationships
♦ Citizen and State relationships

3
Unit 1 The concept of law

Laws are necessary to facilitate peaceful and productive interaction

between human beings within a specified community. The purpose of any
legal system is to regulate the relations of its people. The latter may
be individuals, groups or legal entities. In any society there is a need for
rules to govern these relationships, including the relations between the
government and its subjects. It further provides security and certainty at
a basic level.

4. WHAT IS “LABOUR LAW”?

Labour law principles regulate a number of relationships in the labour

market. Some examples are the relationships between:

♦ An employer (natural / juristic person) and employee (an individual)

♦ An employer and a large number of employees
♦ An employee and a trade union
♦ An employer and trade unions (bodies that represent employees)
♦ Employers’ organisations (bodies that represent a number of
employers) and trade unions
♦ The State, employees, employer, trade unions and employers’
organisations.

With the above information in mind, we can now define labour law as a
system of rules regulating relationships between employers and
employees; employers or employers’ organisations and trade unions;
employees and trade unions and the link between the State, employers,
employees, trade unions and employers’ organisations. The State has a
particular interest in the labour relationship, as the peaceful conduct of
that relationship will contribute to the economic welfare of the whole
society. The State will intervene in the labour relationship to ensure that
the power play between the various role players does not reach a stage
where it negatively affects economic activity and the well-being of the
society as a whole.

5. INDIVIDUAL – AND COLLECTIVE LABOUR LAW

The relationships in the workplace can be divided into two broad

categories, i.e. individual labour law, that focuses on the relationship
between the employer and the individual employee and collective labour
law, which concentrates on the relationship between collective entities or
groups such as collective bargaining between employers and trade unions
as well as strikes and lockouts. In Labour Law 1A, the focus shall be on
individual labour law, while the different aspects of collective labour law
shall be dealt with in more detail in Labour Law 1B.

4
Unit 1 The concept of law

6. THE PRINCIPLE OF CONSTITUTIONALISM


Article 1: Namibian Constitution: Establishment of the Republic of
Namibia and Identification of its Territory

In 1990, the people of Namibia accepted and adopted the Namibian

Constitution as the fundamental and supreme law of our sovereign and
independent Republic and thereby introduced the principle of
constitutionalism. Constitutionalism means that the government of a
country is obliged to rule in accordance with the Constitution.

Article 1(6) of the Namibian Constitution proclaims the Constitution as the

supreme law of the Republic of Namibia, meaning that any law or Act
inconsistent with its provisions shall have no force or effect to the extent of
such inconsistency. The phrase “to the extent of such inconsistency”
means that not the whole law or Act which has an inconsistency with the
Namibian Constitution is declared to have no force or effect, but only that
portion or provision which is indeed unconstitutional, for example:
Suppose a provision in legislation states that: “No Court of law shall
pronounce on the validity of any action done under this law.” Such a
provision is in effect taking away the right to approach a competent Court
for redress should a person be aggrieved. This would be in direct conflict
with the Namibian Constitution that guarantees every person this right in
terms of Article 18 and Article 25(2) thereof. Thus only this provision,
being inconsistent with the Constitution, will have no force or effect and
the rest of the legislation will remain effective and enforceable.

The Namibian Constitution provides the Courts with the power to review
legislation so that all legislation can be tested against the provisions of the
Constitution.

In terms of Article 1(1) of the Namibian Constitution, the Republic of

Namibia is founded upon the principles of democracy, the rule of law 4 and
justice for all. It also contains a chapter on fundamental human rights and
accordingly seeks to entrench the freedom, equality and human dignity of
all individuals.

Inherent in the principle of constitutionalism is an attempt to limit the

State’s authority in order to protect a free and open democracy. A Bill of
Rights [Chapter 3 of the Namibian Constitution] as part of a Constitution is
4
See explanation of “rule of law” in paragraph 13 at the end of this unit.

5
Unit 1 The concept of law

considered the best means of protecting the rights and freedoms of the
individual against the governing authorities and intolerance of the majority.
In addition to defining human rights, the Namibian Constitution specifies
the organs of government, their relationship, powers and functions.

7. THE CONSTITUTION AND LABOUR LAW

Chapter 3 [Fundamental Human Rights and Freedoms] of the Namibian

Constitution contains several provisions of relevance to employment and
labour law, more specifically the articles dealing with the following:

♦ Respect for Human Dignity (Article 8)

♦ Slavery and Forced Labour (Article 9), as reinforced in Section 4 of the
Labour Act
♦ Equality and Freedom from Discrimination (Article 10), as reinforced in
Section 5 of the Labour Act
♦ Children’s Rights (Article 15), as reinforced in Section 3 of the Labour
Act
♦ Culture (Article 19)
♦ Fundamental Freedoms (Article 21) and more specifically freedom of
association (Art. 21(1)(e)) (as reinforced in Section 6 of the Labour
Act); freedom to withhold labour without being exposed to criminal
penalties (Art. 21(1)(f)) (as reinforced in Section 33(2)(d)-(f) of the
Labour Act); freedom to practise any profession, or carry on any
occupation, trade or business (Art. 21(1) (j)), apartheid and affirmative
action (Art. 23).

The rights contained in Chapter 3 may, however, be limited, provided that

such limitation is reasonable and justifiable.

In Chapter 11 [Principles of State Policy] of the Constitution the State is

obliged to actively promote and maintain the welfare of the people (Art.
95) by adopting certain policies aimed at, inter alia, equality of opportunity
and remuneration for women; prevention of abuse of workers, including
children; promotion of sound labour relations and fair employment
practices and, where possible, adherence to and action in accordance
with the Conventions and Recommendations of the International Labour
Organisation (ILO).

6
Unit 1 The concept of law

8. WHO MAKES THE LAWS?


Article 44: Namibian Constitution: Legislative Power
Article 45: Namibian Constitution: Representative Nature

The Legislature, as you may know already, is one of the main organs of
the State, the others being the Executive and the Judiciary.

In terms of Article 44 of the Namibian Constitution, the legislative power of

Namibia shall be vested in the National Assembly with the power to pass
laws with the consent of the President as provided in the Constitution,
subject, where applicable, to the powers and functions of the National
Council. Article 45 stipulates that the members of the National Assembly
shall be representative of all the people and that they shall be guided by
the objectives of the Constitution, public interest and their conscience.

It follows that “the law” is made by the representatives of the people and
applies to the people in that society. The law exists for the sake of the
people. It further has to provide for the changing needs of a developing
community and is consequently inseparably bound up with the community
it has to serve. When legal rules do not reflect the present values in the
different spheres of life (such as economic -, political -, social - and moral
values) of the majority in that particular society, the citizens will lose their
confidence in the legal system and it may lead to a legitimacy crisis.
Consequently, to ensure that the laws reflect the values of the society it
serves, it is not permanent in nature, but is constantly being recreated.

9. THE INTERACTION BETWEEN NORMS OF BEHAVIOUR AND LEGAL

RULES

To understand the existence and functioning of the world around us,

humans continually formulate rules. These rules fall in one of two main
classes, i.e. laws of nature and norms of behaviour.

Laws of nature are statements of fact regarding “what is” and deal with
those rules which have been proved irrefutable, for example, the universal
law of gravity, e.g. if one casts an object upwards, it will always return to
the earth. Norms of behaviour, on the other hand, are statements of how
a person should conduct him/herself. Normative systems that influence

7
Unit 1 The concept of law

our lives are, for example, religion, individual morality and community
mores.

Individual morality refers to the opinion of the individual as to what is

wrong or right. Community mores are the moral values of the group. Both
these are often derived from religious beliefs and practices. The fact that
the law exists for the sake of the people (represented by the legislators)
implies that legal rules and other norms such as religion, individual
morality and community mores do not exist in separate worlds.

In a heterogeneous society there will inevitably be differences in the

norms of the different groups. The law has to provide for the changing
needs of a developing community and is consequently intertwined with the
community it has to serve. The morals of a specific community change
along with public opinion and social convictions and also put pressure on
people making personal choices.

EXAMPLE

The following example illustrates the interaction between individual morality, community
mores and the law:

Brian and Jo-Ann decide to engage in an extra-marital relationship. This would be a

moral choice, especially if they are both adults who can decide for themselves. However,
in certain cases of extra-marital sexual relations, the law has to intervene to protect
certain rights. If, for example, a child is born out of wedlock to Brian and Jo-Ann, the law
imposes a maintenance duty on the child’s natural parents. Their “free choice” will not
exempt them from their legal obligations towards the child. Assume further that Brian is
married to another woman at the time of his relationship with Jo-Ann. The law protects
the legal integrity of a marital relationship against violation by a third party and this is why
Tammy, Brian’s wife, can claim damages from Jo-Ann. The community’s moral views on
adultery also changes over time and it is no longer considered as a crime although it still
gives Tammy the right to sue Brian for divorce, as his adultery resulted in the irretrievable
breakdown of their marriage.

10. THE LAW AND JUSTICE


Article 10: Namibian Constitution: Equality and Freedom from
Discrimination
Article 12: Namibian Constitution: Fair trial

8
Unit 1 The concept of law

The idea that the law ought to be fair and reasonable lies at the heart of
the law’s quest for justice. Our Courts try to make just decisions based on
criteria of fairness and reasonableness; these criteria are once again
influenced by public policy considerations.

The concept “justice” is broad and one of its essential elements is

equality. Equality and freedom from discrimination is guaranteed by
Article 10 of the Namibian Constitution, which provides that all persons
shall be equal before the law and no person may be discriminated against
on the grounds of sex, race, colour, ethnic origin, religion, creed or social
or economic status. These rights may, however, be limited on the basis of
reasonableness and necessity.

You may find that some laws currently in force in Namibia do not
necessarily conform to the principles of justice, as there are still laws
dating from the past colonial system. Those laws affect only certain
sections of the community in an unfair and unequal manner. But why do
we still have these laws? The answer relates to the principle of
constitutionalism discussed above. These laws will remain in force in
terms of both Article 25 (1)(b) and Article 140 (1) of the Namibian
Constitution until the High Court or Supreme Court rule otherwise or until
such laws are repealed or replaced by the National Assembly. These
Articles of the Namibian Constitution provide that all laws, which were in
force immediately before the date of Independence, shall remain in force
until amended, repealed or declared unconstitutional by a competent
Court.

11. CRITERIA FOR JUSTICE

In order to judge the fairness of a legal process in general, the following

criteria shall serve as a guideline:

♦ Similar cases must be treated in a similar manner. Judgments of

the Courts (also known as case law or judicial precedents) form part of
an existing body of rules, which must be followed in the interest of legal
uniformity and certainty (unless certain exceptions apply 5).

♦ In terms of Article 12 of the Namibian Constitution, all persons shall be

entitled to a fair and public hearing by an independent, impartial
and competent Court or Tribunal established by law;

5
For example, where new legislation needs to be followed or where the Court is convinced that the
previous decision is wrong.

9
Unit 1 The concept of law

♦ All persons charged with an offence shall be presumed innocent until

proven guilty according to law, after having had the opportunity of
calling witnesses and cross-examining those called against them.

♦ All persons shall be afforded adequate time and facilities for the
preparation and presentation of their defence, before the
commencement of and during their trial, and

♦ Shall be entitled to be defended by a legal practitioner of their choice.

♦ Adherence to the rules of natural justice.

These same criteria shall apply when the fairness of a disciplinary process
at the workplace needs to be determined with one slight difference in that
the employee does not have the right to insist on representation by a legal
practitioner. An employee does have a right to representation, but, as a
general rule, an employer has the right to limit such representation by
someone from within the organisation.

12. RULES OF NATURAL JUSTICE

The basic principles in terms of which disputes have to be heard are

known as the common law rules of natural justice and these rules are:

♦ audi alteram partem,

and

♦ nemo iudex in sua causa

These rules are extremely important and we therefore need to examine

them in more detail.

12.1 Audi alteram partem literally means “listen to the other side”. This implies
that the presiding officer has to allow each party to the proceedings an
opportunity to state his or her case before Court. It is therefore required
that each party is afforded an opportunity to present his/her version of the
facts and to comment on all the material and/or evidence to be considered
in arriving at a decision. In order to allow a party to prepare his or her case
adequately, sufficient and reasonable notice of the impending action is
required. This means that a party should be provided with information on
the precise charges s/he has to answer and such notice should be given a
reasonable period in advance of the hearing. What would amount to a
reasonable time would depend on the circumstances of each case.

10
Unit 1 The concept of law

12.2 Nemo iudex in sua causa means that no one may act as a judge in his or
her own cause, i.e. may have no personal interest or derive any benefit
from the outcome of a dispute. The presiding officer should be an impartial
(unbiased or objective) person whose bona fides in the conduct of the
hearing cannot be questioned.

13. BASIC LEGAL TERMS AND CONCEPTS IN A LABOUR CONTEXT

13.1 Act (also known as “Act of Parliament” or “legislation” or “statute”)

Legislation passed by Parliament. When you refer to a particular piece of

legislation, for example the Labour Act, you should always use a capital
letter, since the word “act” also has a different meaning, i.e. something
that is done by a person, either in the context of a noun or verb.

The difference between primary and secondary legislation is discussed in

Unit 3 of this guide.

13.2 Affidavit

A written statement of events made by a person who swears that it is true

in the presence of a person duly authorised to administer an oath.

13.3 Appeal

Appeal is the process during which a higher forum (e.g. the Labour Court
or High Court) reconsiders the decision and the reasons for the decision,
based on the facts presented during the lower forum proceedings (for
instance, arbitration or Lower Courts). An appeal is lodged when the Court
or arbitrator has allegedly erred in its decision. The focus is on the result
of a trial. The party instituting the appeal is called the appellant and the
other party becomes the respondent.

13.4 Arbitration

Arbitration is a process in which an independent third party hears the

evidence being presented by the respective parties and then determines
the dispute between them.

13.5 Arbitrator / Arbitration tribunal

Person(s) designated to determine a dispute between two parties or an

individual appointed as such by the Minister in terms of section 85 of the
Labour Act 11 of 2007.

11
Unit 1 The concept of law

An arbitration tribunal has jurisdiction to hear and determine any dispute

or other matter arising from the interpretation, implementation or
application of the Labour Act.

13.6 Assessor

Person selected to advise the Court or arbitrator on technical questions

pertaining to the facts of a case and to assist in the reaching of a decision.

13.7 Award

Decision of an arbitrator or arbitration tribunal.

13.8 Bona fide

This is a Latin term meaning “good faith” and it is used to indicate

genuineness and honest intention. The opposite would be mala fide,
which in turn means “bad faith” and indicates deceitful and dishonest or
bad intentions.

13.9 Breach of contract

Breach of contract is committed where the one party does not perform at
all, performs late or performs in a wrong manner and such default must be
due to the fault of that party. A contract is breached when there is non-
compliance with a material term of the agreement.

13.10 Case law

Case law is also known as judgments of the Courts or judicial precedents.

As discussed earlier, in the interest of uniformity and certainty, the
decisions of the Supreme Court and High Court of Namibia have binding
force and serves as a significant factor in predicting the decision of the
Court in a new legal dispute. The interpretation and application of
legislation, common law and other sources of our law are to be found in
case law.

13.11 Cause of action

The reason for the claim or the facts that gave rise to a legal action or
complaint.

12
Unit 1 The concept of law

13.12 Collective agreement

A written agreement between one or more registered trade unions on the

one hand and one or more employers or employers’ organisations (or
both) on the other hand, concerning terms and conditions of employment
or any other matter of mutual interest.

13.13 Common law

The common law of Namibia consists of that part of our law that we have
inherited through our common history with South Africa and will remain to
be law, unless it is unconstitutional or changed by legislation.

Most of the implied duties of an employee, for example, the duty to act in
good faith and to promote the employer’s business, originate from
common law.

13.14 Compensation

Where a party suffered financial losses as a result of an unlawful act or

omission of another, such party is entitled to claim these losses from the
guilty party. In law, a claim for compensation for financial losses is also
known as a claim for “damages”. A victim of breach of contract is also
entitled to claim compensation (or damages) for losses suffered as a
result of the breach.

13.15 Compliance order

A labour inspector has the power to issue a compliance order in an

instance where there are reasonable grounds to believe that an employer
has not complied with any provision(s) of the Labour Act 11 of 2007. An
employer must comply with such compliance order, unless an appeal
against such order is lodged in the Labour Court. Such appeal must be
lodged within 30 (thirty) days after receiving it.

13.16 Conciliation

Conciliation is a process whereby an independent third party assists the

parties to a dispute to try to reach a settlement. The conciliation process is
managed by the independent third party, but the outcome is determined
by the parties themselves and no settlement may be imposed on any
party.

13.17 Conciliator

An independent third party responsible for the conciliation process.

13
Unit 1 The concept of law

13.18 Contract

An agreement entered into by two or more persons (a person cannot

contract with himself alone) with the serious intention of bringing about an
obligation, provided that certain requirements must be met in order for this
obligation to be valid.

13.19 Costs

Expenses relating to a lawsuit or arbitration proceedings, more specifically

costs incurred by the litigating parties.

Both the Labour Court and the arbitration tribunal may not make an order
for costs against a party unless that party acted in a frivolous 6 or
vexatious 7 manner by instituting, proceeding with or defending those
proceedings.

13.20 Court(s)

For the purposes of the administration of justice, the judicial power of the
State is vested in the Courts of Namibia, having the authority to enforce
the law and adjudicate disputes between parties. The Namibian Court
system consists of the Supreme Court of Namibia, a High Court of
Namibia and the Lower Courts of Namibia (Magistrates’ Courts, Regional
Courts and Community Courts).

13.21 Crime

A crime can be defined as unlawful conduct for which the wrongdoer is

liable to punishment by the State. Crimes can be divided into two main
classes, i.e. common law crimes and statutory law offences. (Please note
that we explain the difference between common law and statutory law in
Unit 3 of this guide.)

Before it can be said that someone has committed a crime, the following
minimum requirements have to be met: There must be an act or omission,
which is unlawful and the accused can be blamed.

13.22 Damages

Please refer to the discussion in par. 13.14 (Compensation) above.

6
Not sensible or serious; wasteful.
7
Annoying

14
Unit 1 The concept of law

13.23 Declaratory order

In an application for a declaratory order there is no question of the

violation of a right. It is an order in terms whereof the Court gives a
decisive and authoritative answer to the question as to what the legal
position is in regard to a particular person and/or a given state of affairs.
Thus, in a declaratory order the Court states its opinion on a question of
law or declares the rights of the parties.

13.24 Delict

A delict can be defined as an unlawful act or omission that causes harm to

the person, property or personality of another. Other elements of a delict
are fault, causation and damages or impairment of personality. It is
important to take note of this concept in a labour context, because of the
principle of vicarious liability in terms whereof an employer can be held
liable for the delicts of an employee in certain prescribed circumstances.

13.25 Dismissal

Termination of a contract of employment by an employer, either with or

without a notice period, is called dismissal. Any termination by an
employer is called “dismissal”, irrespective of the reason for such
termination. To qualify as a fair dismissal, the requirements of substantive
and procedural fairness must be met. Further detailed discussions on
these requirements shall follow in your studies of Labour Law 1B.

13.26 Domestic work

Work performed in or for a household. 8

13.27 Domestic worker

Any person performing domestic work in an employment relationship,

including a child-minder, cook, driver, gardener or housekeeper. 9

13.28 Employee

The Labour Act 11 of 2007 defines an employee as an individual, other

than an independent contractor 10, who works for another person and who
receives, or is entitled to receive remuneration for that work; or in any
manner assists in carrying on or conducting the business of an employer.

8
As defined in the Regulations relating to domestic workers, GN 257, published on 24 December 2014.
9
Ibid
10
See meaning of “independent contractor” below.

15
Unit 1 The concept of law

The concept “employee” is further defined for the purposes of other

relevant labour legislation, same to be set out in more detail in your
studies of Labour Law 1B.

13.29 Employer

The Labour Act 11 of 2007, as amended 11, defines an employer as any

person, including the State, and a user enterprise 12, which employs or
provides work for an individual and who remunerates or undertakes to
remunerate such individual; or permits an individual to assist that person
in any manner in carrying on or conducting that person’s business.

13.30 Independent contractor

The Labour Act 11 of 2007, as amended 13, defines an independent

contractor as a self-employed individual who works for or renders services
to a user enterprise or customer as part of that individual’s business,
undertaking or professional practice.

13.31 Interdict

A Court order restraining a person from doing something, for example,

interdicting an illegal strike action, or requiring a person to do something,
for example, ordering the employer to ensure a safe and/or healthy
workplace.

13.32 International Labour Organisation (ILO)

Namibia is a member of the International Labour Organisation (ILO), a

United Nations (UN) agency, established in 1919 and seated in Geneva,
Switzerland. The objectives of the ILO are, inter alia, to promote social
justice and internationally recognised human and labour rights by means
of a number of Conventions and Recommendations.

13.33 Judge

Judicial officers (also referred to as presiding officers) in the Supreme

Court and High Court are referred to as Judges. In terms of the Namibian
Constitution, Judges are appointed by the President on the
recommendation of the Judicial Services Commission.

11
Labour Amendment Act 2 of 2012, GN 98, published on 12 April 2012, in operation since 1 August
2012.
12
See meaning of “user enterprise” below.
13
Labour Amendment Act 2 of 2012, GN 98, published on 12 April 2012, in operation since 1 August
2012.

16
Unit 1 The concept of law

13.34 Judgment

Decision or order by a presiding officer in Court.

13.35 Juristic Act

A juristic act can be described as an act that has, or intends to have, legal
consequences. A juristic act may be:

♦ Unilateral (one party), e.g. the making of a will or the cancellation of a

contract; or
♦ Bilateral/multilateral (two or more parties), e.g. the making or varying of
a contract.

13.36 Justice

The person(s) presiding over a Community Court is known as a Justice(s),

appointed by the Minister of Justice.

13.37 Labour Commissioner

The Labour Commissioner, appointed by the Minister, is responsible for

the administration of the Labour Act; mainly to prevent disputes from
arising and to attempt to resolve disputes between employers and
employees, through the processes of conciliation and arbitration.

13.38 Labour inspector

The Minister may appoint labour inspectors to enforce compliance with the
Labour Act or any decision, award or order made in terms thereof.

13.39 Legal subjects

Legal subjects are human beings (natural persons) or juristic (legal)

persons subject to the law and include foreigners operating in the
economic society within the borders of Namibia. As a general rule, every
legal subject has legal capacity, i.e. the capacity to:

♦ Be the bearer of rights and duties

♦ Perform juristic acts and
♦ Sue and be sued as a party in a lawsuit (also referred to the capacity
to litigate)

17
Unit 1 The concept of law

However, although every person has the capacity to be the bearer of

rights and duties, not all persons can perform juristic acts and litigate. 14

The law recognises two categories of persons, that is, natural persons and
legal/juristic persons.

(a) Natural persons

A natural person refers to a human being.

(b) Juristic persons

Juristic persons can be described as entities recognised by law as

the holders of rights and subject to duties. Categories of juristic
persons are as follows:

♦ Companies, Close Corporations; Banks (in terms of general

enactments of Parliament);
♦ Universities, Polytechnics; Namibian Broadcasting Corporation
(under special enactments of Parliament); and
♦ Voluntary associations such as churches, clubs and political
parties.

13.40 Magistrate

The Magistrates’ Courts and Regional Courts are presided over by

magistrates.

13.41 Minister

Minister responsible for labour matters, now known as the Minister of

Labour, Industrial Relations and Employment Creation.

13.42 Obligation

In a legal context, the term obligation (also referred to as a duty or

responsibility) refers to a legal bond between the legal subjects in terms of
which one person is bound to render a performance of some kind to or for
the other. These obligations may come about through contract, delict or
through other various courses such as unjustified enrichment. A legal
obligation may consist in giving something, doing something or in not
doing something. The debtor has a duty to render the performance, while
the creditor has a right to receive it.

14
For example, people who have been declared mentally insane do not have the capacity to perform juristic
acts or to litigate.

18
Unit 1 The concept of law

13.43 Onus of proof / burden of proof

This means the duty or responsibility of a party to prove his/her/its claim.

The general rule in law states that that the one who claims must prove, but
the burden shifts in some instances in labour matters. For example, an
employee who claims that he or she was dismissed unfairly only needs to
prove that there was a dismissal. It is the duty of the employer to prove
that the dismissal was fair.

In a criminal matter, the State must prove beyond reasonable doubt 15 that
the accused is guilty of the crime, while in civil litigation, the party who has
the responsibility or onus of proof, only needs to prove his or her case on
a balance of probabilities 16. In a disciplinary hearing at the workplace, an
employer also needs to prove the employee’s guilt on a balance of
probabilities.

13.44 Presiding officer(s)

The person(s) in Court responsible to make a decision (referred to as a

judgment or verdict), after having listened and evaluated the evidence
presented. Judges, magistrates or Justices, depending on the Court over
which such person presides, are all presiding officers.

13.45 Private employment agency

For the purposes of the Employment Services Act 8 of 2011 17, a private
employment agency means any natural or juristic person, except the
State, that provides any of the following labour market services:

♦ For matching offers of and applications for employment, without the

private employment agency becoming a party to the employment
relationship which may arise;
♦ Engaging individuals with a view to place them for work for an
employer, who assigns their tasks and supervises the execution of
those tasks; or
♦ Other services related to job-seeking, such as providing
information.

In this context, “place” means to place, engage, refer, recruit, procure or

supply an individual to work for an employer or prospective employer.

15
There cannot be any doubt that the claim is in fact true; there is no plausible reason to believe otherwise.
16
The dispute will be decided in favour of the party whose claims are more likely to be true. Therefore, it is
only required to prove that there is a possibility that it could be true. The burden of proof is lower than that
of “beyond reasonable doubt”.
17
S 1, as amended by the Labour Amendment Act 2 of 2012.

19
Unit 1 The concept of law

13.46 Resignation

If an employee terminates a contract of employment, it is called

“resignation”. An employee is allowed to terminate a contract of
employment either with or without the required period of notice. It is not
required from an employee to provide a reason for termination, unless
such employee is bound by a fixed term contract which is to be terminated
prematurely.

13.47 Review

A Court judgment or arbitration award is said to be taken under review

when a Court of higher instance considers the procedural aspects of the
original adjudication process to establish whether there were any
shortcomings, which could invalidate the judgment or award. The question
is therefore whether the proceedings took place in accordance with the
rules of justice and whether the aggrieved party was not perhaps
prejudiced by gross irregularities or illegalities.

In Labour Law, the review process involves consideration of whether the

arbitrator adopted the correct procedures and acted in line with his/her
duties.

13.48 Rule of Law

The doctrine of rule of law deals with governance according to law in order
to ensure the elimination of arbitrariness and dictatorship by government.
Therefore, every act of government or its officials must have a valid
foundation in the law and such powers should not be exceeded without
constitutional or statutory authority. The laws of Namibia are interpreted
and administered by competent Courts duly established under the
provisions of the Namibian Constitution or relevant legislation. For the rule
of law to be upheld in Namibia, the decisions of our Courts must not only
be respected but its independence should be maintained.

13.49 Sale in Execution

The sale of a debtor’s property by public auction following a judgment of

the Court against him or her.

13.50 Sue

Take legal action, i.e. to bring an action to a Court of law for adjudication.
Another term that is often used is “litigate” and the process is called
“litigation”. Litigation means the whole process whereby a dispute is taken
to Court so that the Court can pronounce judgment on a matter.

20
Unit 1 The concept of law

13.51 Tribunal

A person or body with the authority to judge, adjudicate on or determine

claims or disputes. From a labour perspective, arbitration tribunals,
operating under the auspices of the Labour Commissioner, have been
established in terms of the Labour Act 11 of 2007 to resolve labour
disputes.

13.52 User enterprise

A legal or natural person with whom a private employment agency 18

places individuals.

18
See meaning of “private employment agency” above.

21
Unit 2 Classification of the law

Unit 2

Classification of the law

Learning objectives

At the end of this unit, you should be able to:

• Explain how international law is incorporated into national law

• Name and briefly describe the main divisions of Namibian National Law
• Discuss the place of labour law within the divisions of the law
• Explain what is meant by the concept of tripartism
• Select the division of the law which is relevant in a given situation

Additional reading
th
Du Bois, F. (Ed.) (2007). Wille’s Principles of South African Law (9 ed.). Cape: Town: Juta & Co.
nd
Du Plessis, L.M. & Du Plessis, A.G. (1995). An Introduction to Law (2 ed.). Cape Town: Juta &
Co. Ltd.

Hahlo & Kahn (1968). The South African Legal System and its Background. Cape Town: Juta.

nd
Kleyn, D., Viljoen, F. (1998). Beginner’s Guide for Law Students (2 ed.). Cape Town: Juta & Co.

Maisel, P. & Greenbaum, L. (2001). Introduction to Law and Legal Skills. Durban: Butterworths.

1. INTRODUCTION

After starting with the discussion of the concept of law in the previous unit,
it is important for us to understand the various areas in which the law
impacts upon the everyday lives of people. These areas are shown in the
subdivisions of the law in Namibia as highlighted in this unit. Examining
these subdivisions also gives you the opportunity to assess the place of
labour law, the subject matter of this course, within the bigger framework
of the law in general.

22
Unit 2 Classification of the law

2. THE MAIN DIVISIONS OF THE LAW

Namibian Law can be divided into international law and national law.
International Law is that division of the law that regulates relations
between nations and National Law means the law of a nation, i.e. the law
of a specific country such as Namibia.

2.1 INTERNATIONAL LAW

International law is the system of rules and principles that are binding
upon States in their relations with one another. It is usually subdivided into
Public International Law and Private International Law. Public international
law governs the relations between States, while private international law
concerns the relations between individuals whose legal relations are
governed by the laws of different States.

Namibia is a member of the International Labour Organisation (ILO),

established in 1919 and seated in Geneva. The ILO has built up a set of
principles and rules through a number of Conventions and
Recommendations. The provisions of Conventions constitute international
treaties that regulate a large number of labour matters, guiding member
countries in developing appropriate labour policies, laws and practices.
Since these treaties1 are binding and enforceable under international law,
signatory countries are obliged to adapt their policies, laws and practices
accordingly. Recommendations, on the other hand, are only meant as
guidelines.

2.2 NATIONAL LAW

National Law can be subdivided into Substantive Law and Procedural

Law.

Substantive Law is that part of the law that determines the content and
meaning of different legal rules. Procedural Law, on the other hand, is that
part of the law that regulates the enforcement of substantive law, i.e. how
a case must be handled when a legal rule has been violated.

We’ll now go into the subdivisions of National Law.

2.2.1 Substantive Law

The main subdivisions of Substantive Law are Public Law and Private
Law. Public law governs the relationship between the State and the
1
A treaty is a written agreement between States or between States and international organizations.

23
Unit 2 Classification of the law

State’s subjects (the individual) as well as the organisation and functions

of the State. The State and the individual are on unequal footing, since it
comprises a relationship of authority with the State as the bearer of
Government authority.

Private Law, on the other hand, governs the relationship between

individuals on an equal footing. State bodies can also institute actions in
terms of Private Law.

Let’s consider each of these.

(a) Public Law

The main subdivisions of Public Law are Constitutional Law,

Administrative Law, Criminal Law and Labour Law. Let’s say a word
on each of these.

 Constitutional Law

Constitutional Law tells us what the composition and functions of

the State bodies are; the relationship between these bodies; their
powers; the office bearers of the State and so forth. The
Constitution of the country forms the basis of constitutional law and
all statutes must conform to the Constitution. The Namibian
Constitution contains a chapter on Fundamental Human Rights and
Freedoms. The protection of human rights is therefore also closely
connected with constitutional law.

 Administrative Law

Administrative Law primarily regulates the exercise of the executive

authority of the State. It concerns the structure, functions and
powers of the State’s executive authorities, such as State
departments and boards that fulfil special functions, such as Liquor
Boards and Road Transportation Boards.

 Criminal Law

Criminal Law determines which act or conduct constitutes a

punishable offence (common law crimes or statutory law offences)
and prescribes the punishment to be imposed.

24
Unit 2 Classification of the law

 Labour Law

Labour law deals with the rules governing the relationship between
employers and employees. The concept of tripartism (three parties,
i.e. Government, employers, employees and their organisations)
has its origin in the ILO approach to labour relations where most
labour related matters are deliberated in a tripartite forum with a
view to reaching consensus between the parties.

(b) Private Law

The main subdivisions of Private Law are Law of Persons, Family

Law, Customary Law and Law of Property. Let’s say a word on
each of these:

 Law of Persons

This division deals with the legal status of people, for example,
minors and insane persons and the factors influencing the status of
an individual.

 Family Law

This division creates family relationships, for example,

engagements, marriages and divorces and the legal relationship
between parents and children.

 Customary Law

Customary Law involves a study of the traditional systems of

customary law of indigenous groups of Namibia.

 Law of Property

The law of property has four subdivisions of its own.

 Law of Things

The Law of Things is concerned with real rights. It

focuses on the relationship between persons and
“things”, for example, ownership of land. A person can
also own property that was created as a result of a
person’s intellect, for example patent rights, copyright
and trademarks, known as intellectual property.

25
Unit 2 Classification of the law

 Law of Succession

This division deals with how a person’s property is to

be treated after that person’s death. The rules of
intestate succession will apply where the deceased
has left no will, while the estate will be regulated by
the rules of testate succession where a will was left.

 Law of Obligations

This division relates to patrimony that has to do with

personal rights and the three most important personal
rights are contract, delict and unjustified
enrichment. The law of obligations is thus further
subdivided in:

Law of contract

This division contains provisions regarding the

conclusion, enforcement and termination of contracts.
Law of contract can further be subdivided into special
types of contracts, such as

♦ Employment or service
♦ Sale
♦ Lease
♦ Agency
♦ Insurance and
♦ Partnerships

Law of delict

The law of delict governs the situation where person

A suffered harm as a result of the wrongful conduct of
person B. This division sets down the necessary
conditions for a delict to have been committed and
regulates personal rights and obligations arising from
a delict.

Law of unjustified enrichment

This source of obligations means that one person will

have a claim against another if the latter’s estate has
increased in patrimony, to the prejudice of the former
without a valid legal ground.

26
Unit 2 Classification of the law

2.2.2 Procedural Law

Procedural Law governs the court process, i.e. how things are done
before, in and after the court process of any claim or charge. Procedural
Law can be subdivided in Criminal Procedure, Civil Procedure and Law of
Evidence.

(a) Criminal Procedure

Lays down the rules for the investigation of alleged criminal

offences and the processes to be followed in court.

(b) Civil Procedure

Determines the procedure to be followed when an individual wishes

to enforce his/her rights against another.

(c) Law of Evidence

Determines how the facts in either a criminal or civil case must be

proved, e.g. the manner in which witnesses should lay their
evidence before the court and kinds of evidence that are
inadmissible.

The diagram on page 28 gives you a general overview of the classification of the
law.

27
 THE LAW

INTERNATIONAL LAW NATIONAL LAW

SUBSTANTIVE LAW PROCEDURAL LAW

Public Law Private Law Criminal Procedure Civil Procedure Law of Evidence

Constitutional Administrative Criminal Labour Law of Family Customary Law of

Law Law Law Law Persons Law Law Property

Law of Things Law of Succession Law of Obligations

Law of Law of Delict Law of

Contract Unjustified20
Enrichment
Unit 3 Sources of Labour Law

Unit 3

Sources of Labour Law

Learning objectives

At the end of this unit, you should be able to:

• Explain the concept “common law” in the Namibian context

• State the position of laws which were in place in Namibia before
Independence
• Name the sources of Namibian labour law
• Compare custom and customary law as sources of law in Namibia
• Discuss the role of customary law as a source of law in Namibia
• Explain the term “legislation”
• Name the most important source of law in a Namibian labour context
• Define the concept “legislation”
• Explain the role of legislation as a source of law
• Apply the contents of this unit to solve problems

Additional reading

Amoo, S.K. (2008). An Introduction to Namibian Law – Materials and Cases. Windhoek:
Macmillan Education Namibia Publishers (Pty) Ltd.

rd
Basson A. et al. (2002): Essential Labour Law: Individual Labour Law (Vol. 1 3 ed.). Houghton:
Labour Law Publications.

De Beer, P.J. (Ed.) (2015). Labour Act Compilation, Namibian Labour Law Publications (Vol. 9).
Windhoek: De Beer Law Chambers.
th
Du Bois, F. (Ed.) (2007). Wille’s Principles of South African Law (9 ed.). Cape: Town: Juta & Co.
th
Du Plessis, J.V. & Fouché, M.A. (2012). A practical guide to Labour Law (7 ed.). Durban:
Butterworths.

nd
Du Plessis, L.M. & Du Plessis, A.G. (1995). An Introduction to Law (2 ed.). Cape Town: Juta &
Co. Ltd.

th
Finnemore, M. (1997). Introduction to Labour Relations in South Africa (5 ed.). Durban:
Butterworths.

29
Unit 3 Sources of Labour Law

th
Grogan, J. (2009): Workplace Law (10 ed.). Cape Town: Juta Law.

Hahlo & Kahn (1968). The South African Legal System and its Background. Cape Town: Juta.
nd
Kleyn, D. & Viljoen, F. (1998). Beginner’s Guide for Law Students (2 ed.). Cape Town: Juta &
Co.

Maisel, P. & Greenbaum, L. (2001). Introduction to Law and Legal Skills. Durban: Butterworths.

Tunkel, V., Horak, A. de W. (1997): Legal Research, Durban: Butterworths,

Labour Act 11 of 2007

Namibian Constitution

Website: www.namiblii.org

Website: www.lac.org.na

Website: www.saflii.org

1. INTRODUCTION

By “sources of the law” we mean the “places” where the law originates
and where it can be found in order to apply it to a specific case. Most
people are under the impression that our law originates in legislation only
and that one can find it there, but this is not correct. Namibian law, like in
Britain, but unlike most European countries, is not codified, i.e. recorded
in one comprehensive piece of legislation. This means that Namibian legal
practitioners have multiple sources to consult when they search for
answers to legal issues.

2. A BRIEF HISTORY OF NAMIBIAN LAW

In order to understand the source of law known as “common law” better

and also to evaluate and facilitate future development or changes in law, it
is important to include a brief overview of the history of our law. Although
Namibia is fast moving in the direction of having a labour law that is
largely legislative in nature, common law still plays an important role as a
source of labour law at present.

A proper understanding of the roots of one’s own legal system makes it

possible to undertake meaningful law reform. There is a growing tendency
among practitioners and the Courts to observe the methods followed by
other legal systems in order to solve problems that are common to their
own system.

30
Unit 3 Sources of Labour Law

Namibian law is the product of different sources, such as Roman law,

Roman-Dutch law, English law, South-African law and German law. The
Namibian legal history can be illustrated as follows:

ROMAN LAW
(753 BC)

Reception in Western Europe

ROMAN-DUTCH LAW
(1500)

SOUTH AFRICAN LAW

(1652)
Influenced by:
• South African custom and
customary law
• English law
• South African Court
decisions
• South African legislation

NAMIBIAN LAW
(1990)
Influenced by:
• Namibian custom and
customary law
• German law
• Namibian Court
decisions
• Namibian legislation

Currently, the Namibian Government is in the process of developing our

own unique legal system, suitable to cater for the needs of the Namibian
people.

31
Unit 3 Sources of Labour Law

3. THE LAWS OF NAMIBIA


Article 25(1)(b): Namibian Constitution: Enforcement of Fundamental
Rights and Freedoms
Article 66: Namibian Constitution: Customary and Common Law
Article 140: Namibian Constitution: The Law in Force at the Date of
Independence

At independence, Namibia inherited some statutes that were passed by

other legislative bodies before independence. Our common law is Roman-
Dutch law which we have inherited through colonialism from South Africa
and these common law principles were further influenced by the German
legal system, which were made applicable to the then South West Africa
in 1920.

In terms of Article 25(1)(b) and Article 140 of the Constitution of the

Republic of Namibia, all laws which were in force immediately before the
date of Independence (21 March 1990) shall remain in force until repealed
or amended by Act of Parliament or until they are declared
unconstitutional by a competent court.

Article 66 of the said Constitution further provides that:

“(1) Both the customary law and the common law of Namibia in force on
the date of Independence shall remain valid to the extent to which
such customary or common law does not conflict with this
Constitution or any other statutory law.

(2) Subject to the terms of this Constitution, any part of such common
law or customary law may be repealed or modified by Act of
Parliament, and the application thereof may be confined to
particular parts of Namibia or to particular periods.”

Therefore, customary law and common law are treated differently from
legislation in the Namibian Constitution, as legislation will remain valid
until such a time that it has been declared unconstitutional by a competent
Court, whereas customary law and common law will be automatically
invalid if it conflicts with the Constitution or any other statutory law.

32
Unit 3 Sources of Labour Law

4. SOURCES OF LABOUR LAW IN NAMIBIA

As is the case with any other branch of the law, the recognised sources of
labour law include, in descending order of importance: Legislation, case
law, common law, custom, customary law (indigenous law), the
Conventions and Recommendations of the International Labour
Organisation (ILO)1 and other sources such as textbooks and foreign law.
Other important sources from a labour perspective are the individual
contract of employment and collective agreements and, to a lesser extent,
the policies adopted and implemented by an employer.

4.1 Legislation

As discussed in Unit 1 above, legislation is law made by an organ of the

State. It the most important source of law in Namibia. Other words for
legislation are “statutes” or “Acts of Parliament”. It can be defined as the
making of law by a competent authority.

Some of the most important Namibian legislation in the labour field

presently is listed below:

♦ Namibian Constitution (hereafter referred to as the “NC”)

♦ Labour Act 11 of 2007 (hereafter referred to as the “Labour Act”);

regulations (section 135) and guidelines and codes of good practice
(section 137) issued by the Minister in terms of the said Act

♦ Labour Amendment Act 2 of 2012 (hereafter referred to as the

“Labour Amendment Act”)

♦ Social Security Act 34 of 1994

♦ Employees' Compensation Act 30 of 1941, as amended

♦ Affirmative Action (Employment) Act 29 of 1998

♦ Regulations Relating to the Health and Safety of Employees at

Work, 1997

♦ Employment Services Act 8 of 2011

♦ Public Service Act 13 of 1995

1
The Conventions and Recommendations of the International Labour Organisation serve as an important
source of international labour standards.

33
Unit 3 Sources of Labour Law

♦ Vocational Education and Training Act 1 of 2008

4.1.1 Labour Act

The Labour Act, as amended, is the prime law regulating relationships

between the different role players in the labour field. Therefore, it is
important to take note of the primary objectives of the said Act, which can
be summarised as follows:

♦ To give effect to the constitutional commitment to promote and

maintain the welfare of the people of Namibia;
♦ To further a policy of labour relations conducive to economic growth,
stability and productivity by, among others:
o promoting an orderly system of free collective bargaining; improving
wages and conditions of employment;
o regulating the conditions of employment of all employees in
Namibia without discrimination on certain specified prohibited
grounds;
o ensuring the health, safety and welfare of employees at work;
o promoting fair employment practices;
o prohibiting, preventing and eliminating forced labour and child
labour; and
o giving effect, if possible, to the Conventions and Recommendations
of the International Labour Organisation.

4.1.2 Primary and secondary legislation

Legislation may be primary or secondary. Primary legislation takes the

form of statutes passed by Parliament. Secondary legislation, also
referred to as “subordinate legislation”, consists of law that has the full
force of a statute but has been laid down by an Executive organ of
Government, authorized by Parliament, such as local authorities having
the power to make by-laws and Ministers having the power to make
regulations. Regulations issued in terms of the relevant enabling section of
an Act of Parliament have the force of law and are therefore also a form of
secondary legislation. Ordinances and proclamations also fall under
subordinate legislation.

4.2 Case law

Case law is also known as judgments of the courts or judicial

precedents. Courts are institutions that apply the law on a daily basis.
The term “Court” in this context refers to the presiding officer, for example
the magistrate or the judge. The general rule is that it is the function of the

34
Unit 3 Sources of Labour Law

Judges to apply an existing body of rules and not to create new law. The
Courts, however, do have a limited lawmaking function. It may happen
that no authoritative decision exists and the Judge then has to apply the
law of Namibia to settle the dispute by interpreting and declaring the
meaning of the common law and legislation.

As explained before, case law has binding force and serves as a

significant factor in predicting the decision of the Court in a new legal
dispute.

The most important judgments of the High Court and Supreme Court of
Namibia are reported in both the South African Law Reports and the
Namibian Law Reports.

A small percentage of the cases that come before the Courts are
eventually reported. As stated before, only judgments of the High Court
and the Supreme Court are reported. The proceedings in Court are
recorded on cassettes; thereafter they are transcribed (typed) and the
editors of the law reports select a few cases for publication. The most
important law reports generally available in Namibia are the Namibian Law
Reports (NR), Namibian Labour Law Publications (NLLP) and the South
African Law Reports (SALR). The other cases remain recorded (and
authority), but not reported and can be obtained from the Registrar of that
specific court. 2

The most important parts of a judgment reference (also called a case

citation) can be illustrated by way of the following example of a Labour
Court case reported in the Namibian Reports (NR):

Pep Stores (Namibia) (Pty) Ltd. v Iyambo & Others 2001 NR 211 (LC)

It consists of four components:

• Case name: Pep Stores (Namibia) (Pty) Ltd. v Iyambo & Others

In a civil case, the plaintiff’s (or applicant’s) name appears first and
is followed by that of the defendant (or respondent); while in a
criminal case the first party will always be the State (S). The other
party is the accused. The “v” stands for “versus” (against).

The above case is the citation of an appeal case, which was heard
in the (Namibian) Labour Court. In an appeal the name of the
appellant appears first, followed by the name of the respondent.

2
All the latest decisions of the Supreme Court, High Court and Labour Court, are available at
www.saflii.org

35
Unit 3 Sources of Labour Law

• Year in which the case was reported: 2001

• Page where the case report starts in that volume: 211

• Court in which the case was decided: (Namibian) Labour Court

4.3 Common law

This is the originating source of our law in Namibia and consists mainly of
Roman-Dutch law applicable in Southern Africa. Examples of legal
principles that originate from common law are murder, robbery, theft and
the principle that compensation must be paid for damages caused
unlawfully. This source will be applicable where our formal sources (i.e.
legislation, case law) do not address the issue in question, however, only
to the extent that if does not conflict with the Constitution or any other
statutory law.

Many of the Roman-Dutch-principles have been superseded by legislation

or case law (for example, children born out of wedlock may now inherit
intestate from their biological fathers), while others have been abrogated
by disuse (for example, the rule that adultery is a criminal offence).

It is the function of our Courts to interpret both legislation and common law
and the modern interpretation of common law can thus be found in written
form in reported Court cases.

4.4 Customary law (Indigenous law)

Many communities observe and apply unwritten customary laws, which

they have followed and passed on orally from generation to generation.
These customary laws have strong ties with culture, tradition and the tribe.
We in Namibia live in a country of diverse cultures and can therefore not
speak of one universal customary law system. The Courts apply
customary law principles if the parties to a matter so choose by agreement
or by virtue of the circumstances of the matter, provided that the law
concerned can be ascertained readily and with sufficient certainty and that
it is not contrary to the Namibian Constitution, legislation and principles of
public policy. 3

In general, customary law was never recognized as a competitor of the

official law of the State but as a supplementary law, which could be
3
Please refer to Article 66 of the Namibian Constitution quoted above.

36
Unit 3 Sources of Labour Law

applied at the Court’s discretion. The courts of chiefs and headmen and
the Community Courts apply the customary law recognized by the
community concerned.

4.5 Custom

Custom can be described as rules of conduct that have become binding

over the years through uniform observance by the community. Similar to
common law, custom can be found in written form in reported court cases
and in textbooks on law.

Custom is still a formative source of our law, but in a very restricted

fashion. In modern law, custom plays a role in the trade usage. For
example, it is custom in the banking world (and therefore also law) that
interest is payable on an overdrawn bank account.

In the workplace, custom and practice could be regarded as a tacit term of

a contract of employment.

4.6 Conventions and Recommendations of the International Labour

Organisation (ILO)

You will remember from our discussion on the classification of the law that
the Conventions and Recommendations of the International Labour
Organisation serve as an important source of international labour
standards.

There are different ways in which the provisions of a Convention or

Recommendation of the ILO can play a role in labour law. When the ILO
has adopted a Convention, member countries are invited to ratify it.
Ratification means that a country’s legislative authority formally adopts the
instrument. The country is then obliged to incorporate the provisions of a
Convention in its legislation, policy and practice. Since these Conventions
and Recommendations serve as a source of law, the court may decide to
look for guidance to these principles in the absence of any clear guidelines
in the other sources of law in order to solve a labour dispute.

The following ILO Conventions have been ratified by Namibia to date:

♦ Forced Labour Convention, 1930 (C. 29 of 1930)

♦ Freedom of Association and Protection of the Right to Organise
Convention, 1948 (C. 87 of 1948)
♦ Right to Organise and Collective Bargain Convention, 1949 (C. 98
of 1949)

37
Unit 3 Sources of Labour Law

♦ Equal Remuneration Convention, 1951 (C. 100 of 1951)

♦ Abolition of Forced Labour Convention, 1957 (C. 105 of 1957)
♦ Discrimination (Employment and Occupation) Convention, 1958 (C.
111 of 1958)
♦ Minimum Age Convention, 1973 (C. 138 of 1973)
♦ Tripartite Consultation (International Labour Standards)
Convention, 1976 (C. 144 of 1976)
♦ Labour Administration Convention, 1978 (C. 150 of 1978)
♦ Termination of Employment Convention, 1982 (C. 158 of 1982)
♦ Worst Forms of Child Labour Convention, 1999 (C. 182 of 1999)

38
Unit 4 Administration of justice

Unit 4

Administration of justice

Learning objectives

At the end of this unit, you should be able to:

• Distinguish between criminal and civil proceedings.

• Explain the meaning of a ‘declaratory order’
• Briefly set out the hierarchy of the Court system in Namibia
• Summarise the jurisdiction of the Labour Court
• Compare the appeal and review procedures
• Select the Court in which an appeal will be heard
• List the main functions of the Labour Commissioner
• List the main functions of a labour inspector
• Apply the contents of this unit to solve problems

Additional reading
Amoo, S.K. (2008). An Introduction to Namibian Law – Materials and Cases. Windhoek:
Macmillan Education Namibia Publishers (Pty) Ltd.
rd
Basson, A et al. (2002): Essential Labour Law: Individual Labour Law (Vol. 1 3 ed.). Houghton:
Labour Law Publications.

De Beer, P.J. (Ed.) (2015). Labour Act Compilation, Namibian Labour Law Publications (Vol. 9).
Windhoek: De Beer Law Chambers.
th
Du Bois, F. (Ed.) (2007). Wille’s Principles of South African Law (9 ed.). Cape: Town: Juta & Co.
th
Du Plessis, J.V. & Fouché, M.A. (2012). A practical guide to Labour Law (7 ed.). Durban:
Butterworths.
nd
Du Plessis, L.M. & Du Plessis, A.G. (1995). An Introduction to Law (2 ed.). Cape Town: Juta &
Co. Ltd.
th
Finnemore, M. (1997). Introduction to Labour Relations in South Africa (5 ed.). Durban:
Butterworths.

Govindjee, A. et al. (2007): Commercial law 2 – fresh perspectives. Cape Town: Pearson
Education and Prentice Hall.
th
Grogan, J. (2009): Workplace Law (10 ed.). Cape Town: Juta Law.

39
Unit 4 Administration of justice

Hahlo & Kahn (1968). The South African Legal System and its Background. Cape Town: Juta.
nd
Kleyn, D. & Viljoen, F. (1998). Beginner’s Guide for Law Students (2 ed.). Cape Town: Juta &
Co.

Maisel, P. & Greenbaum, L. (2001). Introduction to Law and Legal Skills. Durban: Butterworths.

Labour Act 11 of 2007

Namibian Constitution

Website: www.namiblii.org

Website: www.lac.org.na

Website: www.saflii.org

1. INTRODUCTION

You will remember from what you have studied in Unit 1 of this guide that
the Courts of law as organs of the State’s authority are responsible to
enforce the legal rules. In this unit we examine the structure of the Court
system in Namibia, with specific focus on the Labour Court, and conclude
the discussion by highlighting the roles of the different officers of Court,
other Court officials and officials in the labour sphere. It is necessary to
understand the system of the Courts in order to know in which Court a
particular matter can be heard.

In order to put the discussion on the administration of justice in

perspective, we focus again on criminal and civil wrongs (a claim based
on a delict is one example of a civil case) and the different types of
proceedings (criminal and civil) that take place in our Courts.

2. THE ADMINISTRATION OF JUSTICE

In primitive communities aggrieved persons could not call on the State for
legal aid, but had to resort to self-help. This was an unsatisfactory state of
affairs. In a developed community, with any organised constitutional
dispensation, the State assumes the function of the administration of
justice. This means that the Courts, as organs of the State’s authority,
intervene to adjudicate disputes as one of the established ways in which
conflict situations within the country are dealt with. Other ways are, for
example, arbitration, conciliation, mediation, negotiation and settlement.

As stated previously in Unit 1 of this guide, the authority of the State is

divided into three components, namely, the Legislative, Executive and

40
Unit 4 Administration of justice

Judicial authorities. The administration of justice is the function of the

judicial component.

These three forms of authority should function independently as far as

possible so that they keep each other in a state of balance. They can,
however, not act in complete isolation from one another. There is still
interaction and they do supplement each other to a certain extent. For
example, the Courts (as part of the Judicial component) have to interpret
and apply laws made by the Legislative component and can even declare
a law to be unconstitutional, while, on the other hand, all appointments of
Judges to the Supreme Court and the High Court shall be made by the
President (Executive component) on the recommendation of the Judicial
Service Commission.

3. DISTINCTION BETWEEN CRIMINAL AND CIVIL PROCEEDINGS

Both criminal and civil wrongs constitute anti-social and unlawful conduct. 1
The basic difference between a crime and a delict lies in the legal
remedy attaching to each. The main purpose of a criminal prosecution is
to protect society by punishing the offender, while a delictual remedy aims
to compensate the victim for the harm he or she has suffered as a result of
the wrongful/unlawful act.

The terminology used will also be an indication of the type of case we are
dealing with:

In a criminal case, a person is accused of having committed a crime and

the State conducts the case against the accused in Court in the
subsequent criminal proceedings and does so by means of the Public
Prosecutor. The parties are known as The State versus the Accused.

When an individual’s behaviour violates public order, it is seen as a crime

and the State, acting on behalf of the community, imposes a punishment.
The punishment can take the form of a fine, imprisonment or even
community service. The State will prosecute the accused, irrespective of
whether or not the victim or aggrieved party wants him or her to be
prosecuted.

In the event of a civil dispute, a difference of opinion develops between

two or more individuals concerning a matter that affects only themselves.
The community as such does not have an interest in this dispute. The
aggrieved party has a choice whether or not he or she wants to approach
the Court for assistance. There is also no punishment, but the person who
loses the case usually has to compensate the person in whose favour the
1
Please refer to the definitions of a crime and delict in Unit 1.

41
Unit 4 Administration of justice

judgment was made. In addition, the unsuccessful party can be expected

to pay the legal costs of the successful party.

In civil cases, the aggrieved party who approaches the Court for
assistance is known as the plaintiff (or applicant), whilst the opposing
party is called the defendant (or respondent). In criminal cases, the
prosecuting party is the State wile the defending party is generally
referred to as the accused.
In a criminal case the State has to prove beyond reasonable doubt that
the accused is guilty of the alleged crime, while, in civil litigation (and in
all labour related matters), the party bearing the proof must prove his or
her case on a balance of probabilities. The standard of proof required in
civil cases is therefore lower than in criminal cases.

In labour arbitration proceedings, the parties are referred to as the

applicant and respondent, while, in an appeal in the Labour Court, the
parties will be called appellant and respondent.

The differences between a crime (criminal proceedings) and a delict (civil

proceedings) are illustrated in the table below:
Table 1

Crime (Criminal proceedings) Delict (Civil proceedings)

1. Individual’s behaviour violates Difference of opinion between two or more

public order. individuals, community has no interest in
the matter.
2. State, acting on behalf of the Aggrieved party has a choice whether or
community, will prosecute the not to approach the Court for assistance.
accused irrespective of the wishes
of the aggrieved party.
3. State will impose punishment in Person who loses the case has to
the form of a fine, imprisonment or compensate the person in whose favour
community service. the judgment was made. Person who
loses can also be ordered to pay the legal
costs of the successful party.
4. Purpose of punishment is to Purpose of delictual remedy is to
protect society. compensate the victim for the harm he or
she has suffered as a result of the
wrongful/unlawful act.
5. State v Accused Plaintiff (Applicant) v Defendant
(Respondent)
6. State has to prove beyond Party bearing the onus of proof must
reasonable doubt that accused is prove on a balance of probabilities.
guilty.

42
Unit 4 Administration of justice

In a criminal case the Court has to decide:

♦ Whether a crime has been committed and, if so,

♦ Who committed the crime; and
♦ An appropriate punishment for the convicted person.

A party in a civil case approaches a Court either for:

♦ Remedies (or relief); or

♦ Declaratory order

4. REMEDIES IN A CIVIL CASE

Remedies (or relief) consists of the Court giving an order for someone to
either give something; to pay an amount of money; or to do or not to
do something for the benefit of the party who has instituted the legal
proceedings. It is also possible that the applicant is the only interested
party to the proceedings before Court and the order requested from Court
accordingly does not affect another person, e.g. an application to be
admitted as a legal practitioner. This is an example of an ex parte
application.

As explained in Unit 1 of this guide, a declaratory order is an order in

terms whereof the Court gives a decisive and authoritative answer on a
question of law or the rights of the parties.

Both an arbitration tribunal and the Labour Court are empowered to grant
a declaratory order.

5. THE STRUCTURE OF THE COURTS


Article 78: NC: The Judiciary

The key difference between the Supreme Court, High Court, Labour Court and
Lower Courts lies in the nature of their jurisdiction.

43
Unit 4 Administration of justice

The hierarchy (or structure) of the Courts in Namibia can be illustrated as

follows:

SUPREME COURT
Appeals only
Unlimited jurisdiction

HIGH COURT LABOUR COURT

Trial Court & Court of Appeal & Review (inter
Appeal (from Lower alia) of Arbitration
Courts) awards & decisions of
Unlimited jurisdiction Minister, Permanent
Secretary or Labour
Commissioner

LOWER COURTS

MAGISTRATES’ REGIONAL COURTS

COURTS Limited jurisdiction
Limited jurisdiction Criminal cases only
Civil & criminal

COMMUNITY
COURTS
Limited jurisdiction

6. JURISDICTION OF THE RESPECTIVE COURTS

Jurisdiction can be defined as the authority which a Court has to decide a

case before it and to take cognizance of matters presented for decision.

The Supreme Court and High Court are both created by the Constitution
and therefore derive their jurisdiction from the Constitution, while the
Lower Courts and Labour Court derive their respective jurisdictions from
legislation.

44
Unit 4 Administration of justice

In a criminal case the Court’s jurisdiction is determined by the kind of

offence, the area where the offence was allegedly committed and the
possible sentence, while the nature of the relief sought and the amount
claimed are the decisive factors in a civil case.

6.1 Supreme Court & High Court


Article 79: NC: The Supreme Court
Article 80: NC: The High Court
Article 81: NC: Binding nature of decisions of the Supreme Court

The Supreme Court, with its seat in Windhoek, is the highest Court in the
country. This Court hears and adjudicates upon appeals emanating from
the High Court (as well as the Labour Court, as a division of the High
Court), including appeals which involve the interpretation, implementation
and upholding of the Namibian Constitution and the fundamental rights
and freedoms guaranteed thereunder. The decisions of the Supreme
Court create binding precedent for all other Courts in Namibia.

The Supreme Court is only a Court of appeal; no trials take place before
this Court. Therefore, if a party is unhappy with a decision of the Labour
Court, an appeal can be lodged in the Supreme Court.

The High Court is the highest trial Court in the country and also has the
jurisdiction to hear and adjudicate upon appeals from the Lower Courts. It
has jurisdiction to hear and adjudicate upon all civil disputes and criminal
prosecutions, including cases which involve the interpretation,
implementation and upholding of the Constitution.

6.2 Labour Court


Section 115: Labour Act: Continuation and powers of the Labour
Court
Section 117: Labour Act: Jurisdiction of the Labour Court

45
Unit 4 Administration of justice

The Labour Court, as a division of the High Court, was established in

terms of Section 15 of the Labour Act 6 of 1992 and this establishment is
continued in terms of Section 115 of the Labour Act 11 of 2007.

Most disputes must be referred to conciliation and/or arbitration first,

whichever is applicable in the given circumstances before the Labour
Court is approached. The detail of the dispute resolution process shall be
discussed in the Labour Law 1B guide.

The Labour Court has the exclusive jurisdiction to, among others:

♦ Determine appeals from:

• Decisions of the Labour Commissioner made in terms of the

Labour Act;
• Arbitration tribunals’ awards in terms of section 89 of the Labour
Act; and
• Compliance orders issued by a labour inspector in terms of
section 126 of the Labour Act;

♦ Review:

• Arbitration tribunal’s awards in terms of the Labour Act;

• Decisions of the Minister, the Permanent Secretary, the Labour
Commissioner or any other body or official in terms of the
Labour Act or any other Act relating to labour or employment for
which the Minister is responsible;

♦ Grant a declaratory order in respect of any provision of the Labour

Act, a collective agreement, contract of employment or wage order;

♦ Grant urgent relief, including an urgent interdict, pending the

resolution of a dispute in terms of the Labour Act;

♦ Grant an order to enforce an arbitration agreement;

♦ Determine any other labour matter, either in terms of the Labour

Act, any other law or the common law.

46
Unit 4 Administration of justice

6.3 The Lower Courts


Article 83: NC: Lower Courts

Lower Courts are “creatures of statutes”, as they owe their authority and
jurisdiction to the Magistrate’s Court Act 32 of 1944, as amended. They
may only do those things that the said Act explicitly or by necessary
implication permits. The Lower Courts may be divided into two main
groups, i.e. District Courts, also known as Magistrates’ Courts (limited civil
and criminal jurisdiction), and Regional Courts (limited criminal
jurisdiction).

(a) Magistrates’ Courts

Magistrates’ Courts have limited civil and criminal jurisdiction.

With regards to civil jurisdiction, the Magistrate’s Court can only
hear certain types of disputes 2 and up to a prescribed maximum
claim amount where the dispute involves a claim for the payment of
a monetary value, while its criminal jurisdiction is determined by the
seriousness of the crime, the area where the crime was committed
and the sentence to be imposed.

(b) Regional Courts

Regional Courts were introduced to deal with more serious

criminal matters only.

6.4 Community Courts

The Community Courts Act 10 of 2003 provides for; inter alia, the
recognition and establishment of Community Courts; the appointment of
Justices, clerks and messengers of Court; the application of customary
law by Community Courts and appeals from Community Courts to other
Courts.
A Community Court has jurisdiction to hear and determine any matter
relating to a claim for compensation, restitution or any other claim
recognised by the customary law, but only if the cause of action of such
matter or any element thereof arose within the area of jurisdiction of that
2
Matters that fall outside the jurisdiction of the Magistrate’s Court include a claim for divorce; the
interpretation of a will; an application to be declared insolvent or as being mentally insane, and so on.

47
Unit 4 Administration of justice

Community Court or the person(s) to whom the matter relates are in the
opinion of that Community Court closely connected with the customary
law. A Community Court must apply the customary law of the traditional
community residing in its area of jurisdiction. If the parties are connected
with different systems of customary law, the Community Court has to
apply the system of customary law, which the Court considers just and fair
in the circumstances.

A person who is not satisfied with the decision or order of a Community

Court has the right to appeal to the Magistrate’s Court, but must first make
use of his or her rights of appeal within such Community Court if the latter
has the power to serve as a body of appeal.

7. TRIBUNALS

There are various bodies vested with authority that exercise a discretion,
which affects the existing rights, privileges or freedoms of the individual
concerned. Examples of these bodies are the Liquor Board, the Road
Transportation Board and the Immigration Control Board.

The arbitration tribunal to resolve labour disputes under the auspices of

the Labour Commissioner3, created in terms section 85(1)(a) of the
Labour Act, serves as a tribunal in terms of Article 12(1)(a) of the
Namibian Constitution.

8. APPEAL AND REVIEW

Should a person be dissatisfied with his/her conviction and/or sentence (in

a criminal case) or with the judgment pronounced (in a civil case) or the
decision (or award) of an arbitration tribunal, s/he may appeal to a higher
Court and eventually to the Supreme Court, which will pass the final
judgment. If an irregularity in the procedure is alleged, a higher Court can
review the case. Therefore, it can be said that an appeal focuses on the
result of a trial, while a review focuses on the method of obtaining the
result.

The differences between appeal and review- proceedings are illustrated in

the table below:

3
The arbitration of labour disputes is discussed in more detail in your studies of Labour Law 1B.

48
Unit 4 Administration of justice

Table 2

Appeal Review

Superior Court considers decision of a Superior Court considers the procedural

lower Court or arbitrator. aspects of the original adjudication process
(Court proceedings or arbitration hearing).
Appellant alleges that Court or Aggrieved party alleges that the proceedings
arbitrator erred in its decision on either did not take place in accordance with the rules
a question of fact or in the application of justice.
of the law, or both.
Focus is on the result of the trial or Focus is on the method of obtaining the result.
proceedings.

In a labour matter, a party to a dispute may appeal against, or apply for

the review of, amongst others, an arbitration tribunal’s award to the Labour
Court. The detail of this process will be discussed in the Labour Law 1B
guide.

9. THE LEGAL PROFESSION

9.1 Officers of Court

There are people with legal qualifications in many careers such as legal
advisers in the business world, in local management bodies, in journalism,
in the diplomatic service, and so on. However, professions such as judge,
magistrate, public prosecutor and legal practitioner are traditionally
regarded as branches of the legal profession.

Judicial officers in the Supreme Court and High Court are judges and in
the Lower Courts magistrates. A judge is addressed in Court as “my lord”
or “my lady” and informally as “judge”, while a magistrate is addressed as
“your worship” or “your honour”. Public Prosecutors act on behalf of the
State in criminal prosecutions.

Traditionally, there were two classes of lawyers in Namibia, namely

advocates and attorneys. The Legal Practitioners Act 15 of 1995 has
changed this. In terms of Section 17(a) of the Legal Practitioners Act 15 of
1995, there is no longer a distinction made between advocates and
attorneys in respect of their right of appearance. It provides that a legal
practitioner, who is duly admitted and enrolled as such, shall have the
right of appearance in any Court or Tribunal in which persons are entitled
by law to legal representation. A person shall be entitled to be enrolled as
a legal practitioner if s/he can satisfy the High Court of Namibia that s/he
is a fit and proper person to be admitted; s/he is duly qualified 4 and s/he is

4
To satisfy this requirement a person must be the holder of a law degree from the University of Namibia or
an equivalent from a university or a comparable institution situated outside Namibia which has been

49
Unit 4 Administration of justice

a Namibian citizen or in possession of a permanent residence permit or an

employment permit for the purpose of employment with the State.

Despite the provisions of the Legal Practitioners Act, one still finds legal
practitioners practising as members of the Society of Advocates, called
the “Bar”. In ordinary English Courts the Bar is an imaginary barrier
separating the bench and the front row of counsel’s seat from the rest of
the Court. Members of the Society of Advocates are specialist litigators.

An aspirant member of the Advocate’s Society must do pupilage of at

least three months with a qualified member of the said society and then
successfully complete the Bar Council examination. The Society of
Advocates is an umbrella body, which regulates the profession. Members
of the society do not form part of a firm or a partnership; they work for their
own account. Clients do not approach members of the society directly;
legal practitioners not practicing at the bar refer them to him/her.

9.2 Other Court officials

9.2.1 The Registrar of the High Court and Supreme Court

The Registrar serves as the administrative head of the Supreme Court

and the High Court. It is important to take note of the office of the
Registrar of the High Court, since an arbitration award can become an
order or of the Labour Court, which is a division of the High Court, upon
the filing of such award in the Labour Court by any party affected by the
award or by the Labour Commissioner. The award must be filed at the
office of the Registrar of the High Court.

9.2.2 The Clerk of the Court

The Clerk of the Court serves as the administrative head of the

Magistrate’s Court in a particular district.

9.2.3 The Sheriff (and his/her deputies)

The sheriff (and his/her deputies) is responsible for the serving of all Court
documents relating to civil matters, such as summonses and Court orders
of the High Court and Supreme Court. The sheriff also attaches property
and organises sales in execution. The Police are responsible to serve all
documents and/or orders relating to criminal cases.

prescribed by the Minister of Justice. In addition, the applicant must be issued with certificates from the
Board of Legal Education certifying the successful completion of the Legal Practitioners’ Qualifying
Examination and practical legal training.

50
Unit 4 Administration of justice

In a labour matter, a labour inspector is responsible for the enforcement of

an arbitration award. The labour inspector is empowered to institute
execution proceedings (legal seizure and sale of property of the defaulting
party) on behalf of the party in whose favour the award was given.

9.2.4 The Messenger of Court

The messenger fulfils the same role as the sheriff, only with regard to
Magistrate’s Court matters.

9.3 Officials in the labour sphere

9.3.1 Labour Commissioner


Section 120: Labour Act: Appointment of Labour Commissioner and
Deputy Labour Commissioner
Section 121: Labour Act: Powers and functions of the Labour
Commissioner

Section 120 of the Labour Act deals with the appointment of a Labour
Commissioner and a Deputy Labour Commissioner. The Minister has the
duty to appoint a Labour Commissioner and a Deputy Labour
Commissioner. Both the Labour Commissioner and the Deputy Labour
Commissioner are, by virtue of their office, a conciliator and an arbitrator
for the purposes of the Labour Act and they should accordingly be
competent to perform these functions.

Section 121 again deals with the powers and functions of the Labour
Commissioner. Some of the most important functions and powers are
summarized below:

In general, the Labour Commissioner is responsible for the administration

of the Labour Act.

The functions of the Labour Commissioner are, amongst others:

♦ To register disputes from employees and employers and to take

appropriate action;
♦ To prevent disputes from arising through conciliation or advising the
parties involved;

51
Unit 4 Administration of justice

♦ To attempt, through conciliation, to resolve disputes referred to his

or her office;
♦ To arbitrate a dispute if the dispute remains unresolved after
conciliation and the Labour Act requires arbitration or the parties
agreed to have the dispute resolved through arbitration;

The Labour Commissioner may (i.e. has the power), amongst others:

♦ If asked, advise any party to a dispute about the procedure to

follow;
♦ Offer to resolve a dispute that has not been referred to the Labour
Commissioner through conciliation;
♦ Intervene in any application made to the Labour Court in terms of
section 79 (urgent interdict)
♦ Apply to the Labour Court for a declaratory order in respect of any
question concerning the interpretation or application of any
provision of the Labour Act.

9.3.2 Labour Inspectorate


Section 124: Labour Act: Appointment of inspectors
Section 125: Labour Act: Powers of inspector
Section 126: Labour Act: Power to issue compliance order

The Minister may appoint labour inspectors to enforce the Labour Act or
any decision, award or order made in terms thereof and the Permanent
Secretary must issue each appointed labour inspector with a certificate
confirming the appointment.

The main functions of a labour inspector are to:

♦ Enter any premises at any reasonable time to search and seize

evidence relevant to the administration of the Labour Act;
♦ Order any individual to appear at a specified date, time and place
and to question that individual;
♦ Require an employer to pay an employee any remuneration owed;
♦ Enforce arbitration awards made under the Labour Act;
♦ Assist any person in any application, referral or complaint under the
Labour Act and the settling thereof;

52
Unit 4 Administration of justice

♦ Issue a compliance order if there are reasonable grounds to believe

that an employer has not complied with a provision of the Labour
Act.

9.3.3 Conciliators 5


Section 82(1): Labour Act: Resolution of disputes through
conciliation

9.3.4 Arbitrators 6


Section 85(3) & (4): Labour Act: Arbitration

5
Please refer to the meaning of “conciliator” in Unit 1.
6
Please refer to the meaning of “arbitrator” in Unit 1.

53
Unit 5 Identification and conclusion of a contract of employment

Unit 5

Identification and conclusion of a contract of

employment

Learning objectives

At the end of this unit, you should be able to:

• Explain the importance of identifying the type of contract of service

• Define the concepts “employer” and “employee” in terms of the Labour
Act, as amended
• Briefly discuss the purpose of Section 128 of the Labour Act, as amended
• Compare the main distinguishing features of the locatio conductio
operarum and the locatio conductio operis
• Identify the type of contract of service by applying the different tests
devised by our Courts
• List the requirements for validity of a contract of employment
• Explain the meaning of the concept “essentialia”
• Name the essentialia of a contract of employment
• Name and explain the requirements for a valid employment agreement
• Discuss the difference between fixed term – and indefinite term or
permanent contracts of employment
• Discuss the impact of Section 128C (Presumption of indefinite
employment) of the Labour Act, as amended
• List the different ways in which a contract of employment can be lawfully
terminated
• List the different reasons for which a contract of employment can be
lawfully terminated
• Apply the contents of this unit to solve problems

Additional reading
rd
Basson A. et al. (2002): Essential Labour Law: Individual Labour Law (Vol. 1 3 ed.). Houghton:
Labour Law Publications.

Bendix, S. (2000). The Basics of Labour Relations. Cape Town: Juta.

De Beer, P.J. (Ed.) (1998). Labour Court Reports (1993-mid 1998), Namibian Labour Law
Publication (Vol. 1). Windhoek: SDU Seminars.

54
Unit 5 Identification and conclusion of a contract of employment

De Beer, P.J. (Ed.) (2002). Labour Court Reports (1998-mid 2002), Namibian Labour Law
Publication (Vol. 2). Windhoek: ERC.

De Beer, P.J. (Ed.) (2004). Labour Court Reports (2002-January 2004), Namibian Labour Law
Publication (Vol. 4). Windhoek: Ernest & Young.

De Beer, P.J. (Ed.) (2013). Namibian Labour Law Publication (Vol. 7) NLLP 2013(7). Windhoek:
De Beer Law Chambers.

De Beer, P.J. (Ed.) (2015). Labour Act Compilation, Namibian Labour Law Publication (Vol. 9).
Windhoek: De Beer Law Chambers.
th
Du Bois, F (Ed.) (2007). Wille’s Principles of South African Law (9 ed.). Cape Town: Juta & Co.
th
Du Plessis, J.V. & Fouché, M.A. (2012). A practical guide to Labour Law. (7 ed.). Durban:
Butterworths.
th
Finnemore, M. (1997). Introduction to Labour Relations in South Africa (5 ed.). Durban:
Butterworths.

Govindjee, A. et al. (2007): Commercial law 2 – fresh perspectives. Cape Town: Pearson
Education and Prentice Hall.

Grogan J. (2010). Employment Rights. Cape Town: Juta Law.

th
Grogan, J. (2009): Workplace Law (10 ed.). Cape Town: Juta Law.

Parker, C (2012). Labour Law in Namibia. Windhoek: University of Namibia Press.

Van Rooyen J.W.F. (Ed.). (2011): Namibian Labour Lexicon: The Labour Act, 2007 A to Z Vol. 2
(revised edition). Windhoek: Macmillan Education Namibia Publishers.
th
Venter, R. & Levy, A. (Eds.). (2014): Labour Relations in South Africa (5 ed.). Cape Town:
Oxford University Press Southern Africa (Pty) Ltd.

Labour Act 11 of 2007

Labour Amendment Act 2 of 2012

Namibian Constitution

Website: www.namiblii.org

Website: www.lac.org.na

Website: www.saflii.org

55
Unit 5 Identification and conclusion of a contract of employment

1. INTRODUCTION

A very important fact of our modern lives is that most people must work.
The majority of Namibians are either employees or employers, but few
realise that the employment relationship is based on a contract and that
this type of contract is one of the most important to be concluded in a
person’s life.

The employer and employee are linked to each other by means of an

employment contract. When parties enter into an employment contract,
they each incur certain rights and duties. The most important duty on the
part of an employee is to supply his/her services/labour and the
corresponding right is to receive remuneration in return. The contract of
employment can thus briefly be defined as a reciprocal agreement in
terms whereof one party (the employee) places labour potential at the
disposal and under the control of another (the employer) in exchange for
remuneration.

The parties to the contract should understand the sources of law

regulating the contract of employment; the essentialia; the nature of the
employment relationship and the respective rights and duties of the
parties, as well as the ways in which the contract can be terminated.

2. IDENTIFYING THE EMPLOYMENT CONTRACT


Section 1: Labour Act: Definitions of “employee”, “employer”,
Section 1: Labour Amendment Act
Section 6: Labour Amendment Act
Section 7: Labour Amendment Act

In order to determine the legal principles applicable to any contract, it

should first be categorised as a certain type of contract, such as a contract
of employment.

In terms of both the common law and applicable legislation, a person can
deliver a service in return for payment in two different ways, i.e. either as
employee where the person places his or her services at the disposal and
subject to the authority and control of the employer in exchange for

56
Unit 5 Identification and conclusion of a contract of employment

payment or as an independent contractor who works for or renders a

service to another in exchange for payment.

The most important reasons why it is so important to be able to identify a

contract as being a contract of employment are summarised in Table 1
below:

Table 1

Contract of employment Independent contractor

1. Employer can be held vicariously Employer cannot be held vicariously liable for
liable for the delicts of the employee. the delicts of the independent contractor.
2. Labour legislation is applicable to Labour legislation is not applicable to this type
this type of contract. of contract.

Therefore, when confronted with a labour law problem, the first step is to
establish whether the parties to the contract are in fact “employer” and
“employee” within the meaning of the applicable legislation and/or
common law.

2.1 Identifying the contract in terms of the applicable legislation

2.1.1 Definition of employer

In section 1 of the Labour Act 12, an “employer” is defined as “any person,

including the State and a user enterprise referred to in section 128(1)
who –

(a) employs or provides work for an individual and who remunerates or

expressly or tacitly undertakes to remunerate that individual; or
(b) permits an individual to assist that person in any manner in carrying on
or conducting that person’s business;”

In terms of the new section 128(1) 3 of the Labour Act, a “user enterprise”
means a legal or natural person with whom a private employment agency
places individuals, while a “private employment agency” is defined as
being any natural or juristic person, which provides one or more of the
following labour market services:

♦ for matching offers of and applications for employment without the

private employment agency becoming a party to the employment
relationship which may arise there from; or
1
As amended by S 1 of the Labour Amendment Act.
2
As amended by S 1 of the Labour Amendment Act.
3
S 6 of the Labour Amendment Act substitutes section 128 of the Labour Act 11 of 2007

57
Unit 5 Identification and conclusion of a contract of employment

♦ engaging individuals with a view to placing them to work for an

employer, which assigns their tasks and supervises the execution of
those tasks; or
♦ other services relating to job-seeking that do not set out to match
specific offers of and applications for employment, such as providing of
information. 4

2.1.2 Definition of employee

Section 1 of the Labour Act defines an “employee” as “…an individual,

other than an independent contractor, who works for another person…”

A definition of an “independent contractor” has now been added and

means “a self-employed individual who works for or renders services to a
user enterprise or customer as part of that individual’s business,
undertaking or professional practice;”5

2.1.3 Protection of individuals placed at a user enterprise by a private

employment agency 6

In order to protect persons who are placed by so-called labour hire

companies, the new section 128 of the Labour Act provides, among
others, that an individual (except an independent contractor) who is placed
by a private employment agency at a user enterprise, shall be the
employee of the user enterprise and the user enterprise shall be the
employer of such person. Such person would therefore be entitled to all
the rights afforded to employees in terms of the Labour Act; s/he must be
employed on not less favourable conditions of employment as those who
perform the same or similar work or work of equal value and the same
employment policies and practices of incumbent employees must be
applicable to them. 7

4
S 1 of the Employment Services Act 8 of 2011, as amended
5
S 1 of the Labour Amendment Act. In terms of the common law, this type of service included the
building, manufacturing, repairing or altering of a thing within a specified time. The definition of an
independent contractor in terms of the Labour Act, as amended, now includes services rendered by a
professional person, such as a medical doctor, legal practitioner, engineer or architect. A contract for the
delivery of professional services was previously referred to as a contract of mandate.
6
S 128 of the Labour Act, as amended.
7
S 6 of the Labour Amendment Act. A user enterprise who contravenes this part of the Act commits an
offence and is liable to a fine not exceeding N$ 80 000 or imprisonment of a period not exceeding two
years or both. The Act provides for a possible exemption by the Minister, on application by the user
enterprise, supported by both the private employment agency and the affected employee. If such exemption
is granted, both the private employment agency and the user enterprise are deemed to be the employer of
such individual and they are jointly and severally liable for contraventions of the Labour Act.

58
Unit 5 Identification and conclusion of a contract of employment

2.1.4 Presumption as to who is an employee

Section 128A (Presumption as to who is employee) 8 provides that an

individual who works for or renders a service to any other person, is
presumed, until the contrary is proved, to be the employee of that other
person if any one or more of the following factors is present:

♦ The manner of work is subject to the control of that other person;

♦ The hours of work are subject to the control or direction of that
other person;
♦ The individual’s work forms an integral part of the organisation;
♦ The individual has worked for that other person for an average of at
least 20 hours per month over the past three months;
♦ The individual is economically dependent on that person for whom
s/he works or renders services to;
♦ The individual works or renders services to that other person;
♦ Any other prescribed factor.

2.1.5 Deeming individuals as employees

Section 128B (Deeming individuals as employees) 9 further allows the

Minister, subject to certain conditions, to deem any individual to be an
employee for the purposes of the Labour Act.

2.2 Identifying the contract in terms of the common law

The common law distinguishes between a contract of employment (locatio

conductio operarum); work acceptance contract (or independent
contractor contract, also known as the locatio conductio operis) and the
contract of mandate (services by a professional person) 10.

The main distinguishing characteristics of the contract of employment and

work acceptance contract are set out in Table 2 11 below:

8
S 7 of the Labour Amendment Act amends S 128 of the Labour Act.
9
S 7 of the Labour Amendment Act amends S 128 of the Labour Act.
10
As mentioned before, the definition of an independent contractor in terms of the Labour Act (as
amended) now includes services rendered by a professional person. Therefore, the concept of an
independent contractor will replace the common law contract of mandate.
11
As summarised in SA Broadcasting Corporation v McKenzie (1999) 20 ILJ 585 (LAC)

59
Unit 5 Identification and conclusion of a contract of employment

Table 2

Locatio conductio operarum Locatio conductio operis

1. Contract of employment Work acceptance contract

2. Employer has authority and control Contractor does not work under the
over the employee. authority and control of the employer.
3. Employer will supervise the rendering Contractor works independently, but must
of the service by the employee; will comply with the terms of the contract.
prescribe what work should be done how Contractor decides what work should be
and when. done and how it should be done. Contractor
decides when the work will be done, but
must do it within the time specified or within
a reasonable time if no time was specified.
4. Terminates upon expiration of period Terminates on completion of the specified
of service entered into. work or on production of the specified result.
5. The employer will provide the tools to Contractor uses his/her own tools to
enable the employee to render the complete the work.
service.

EXAMPLE

Nampost hires the services of a driver to transport parcels on route to and from Katima
Mulilo. Most probably, the driver will be engaged in terms of a contract of employment
(locatio conductio operarum). The driver will be obliged to place his/her labour potential at
the disposal of Nampost and will be paid a wage (remuneration) for doing so.

Conversely, suppose one of the Nampost delivery trucks breaks down and the services
of a mechanic are required to do the necessary repairs, the person contracted for this
purpose would be regarded as an independent contractor (locatio conductio operis)
providing a service in return for payment (unless Nampost employs their own mechanics
for this purpose).

2.2.1 Different tests to apply to identify the type of contract of service in

terms of the common law

Though the distinguishing characteristics, as set out in Table 2 above,

may seem easy to apply to a practical setting, the identification of the type
of contract of service has always been one of the most difficult questions
in our law. The reason being that, in our modern society, where large
numbers of employees have special skills and training, the employer may
have little control over the manner in which the employee performs tasks.

The element of control is thus less pertinent and obvious than it had been
in the past and for this reason our Courts have formulated a number of
tests for drawing the distinction.

60
Unit 5 Identification and conclusion of a contract of employment

These tests are known as the control -, organisation - and multiple test
(also referred to as the dominant impression test):

(a) The control test

This test requires a look into the question as to whether the employer has
some form of control and supervision over the employee. Though, in
cases where the employee provides a highly skilled service, where control
(especially the method of work) and supervision would not be feasible, this
test becomes less useful. Nevertheless, even if the employee exercises
an independent, specialised professional discretion it could still be a
contract of employment. The mentioned unique skill may be the exact
reason why the employer employed the particular person in the first place.
The control test therefore did not provide a conclusive answer in all
situations and the Courts then started to experiment with another test,
known as the organisation test.

(b) The organisation test

Applying this test, one should ask the question as to whether the
employee’s services form an integral part of the employer’s business or
organisation, i.e. to what extent is the employee integrated into the
workplace. Some examples of indicating factors of integration are
whether the employee is provided with an office and equipment; whether
the employee belongs to the pension fund, medical aid fund, etc., and/or
whether the employee is entitled to any type of leave in terms of the
contract. This test does not prescribe to what extent the work must be part
of the organisation before an individual is integrated in it. The degree of
integration is thus not specified. As a result, this test also seems to be
inadequate.

(c) The multiple test (also known as the dominant impression test)

Here the relationship is viewed as a whole and a conclusion is drawn from

the entire picture. This test is based on the view that an employment
relationship has certain peculiar characteristics. The dominant impression
gained after applying certain criteria, could result in a finding of the
existence of a contract of employment. Included in these criteria, one finds
the requirements of control and integration (control – and organisation
tests). The multiple test could thus be regarded as an umbrella test, since
it includes the first two tests in addition to other criteria, devised by our
Courts over a period of time.

In terms of the multiple test, the person agrees expressly or impliedly that,
in the performance of that service, s/he will be subject to the other’s
(employer) control in a sufficient degree to make that other, the master.

61
Unit 5 Identification and conclusion of a contract of employment

The right of suspension, discipline and dismissal forms an integral part of

the right of control and supervision.

In order to determine the degree of integration into the business

(organisation test), factors such as the supply of capital assets,
entitlement to benefits (pension, medical aid, housing, transport, etc.) and
other basic conditions of employment such as leave entitlement shall be
considered.

In addition to the indicators of control and integration, factors such as

those listed below could indicate the existence of a contract of
employment, rather than a work acceptance contract (also known as the
contract of an independent contractor):

♦ The worker is not allowed to work for another;

♦ The worker is obliged to perform the work personally;
♦ The worker is required to devote a specific time to his or her work;
♦ The method of payment, i.e. for time worked and not based on a
particular result.

Hence, the multiple or dominant impression test, which is often the

standard test used by our Courts, not only looks at one factor (control or
integration), but rather a number of factors or indicators.
As mentioned in paragraph 2.1.4 above, Section 128A of the Labour Act
creates a presumption that, until the contrary is proved 12, an individual
who works for or provides a service to another, is to be considered an
employee of that other person, if at least one of a list of factors is present.
The aforesaid list includes the questions of control and integration.

For the purposes of common law, the multiple (or dominant impression)
test is the most authoritative test for determining whether a person is an
employee or an independent contractor. Therefore, it is accepted that our
Courts will apply this test where the presumption as to whether a person is
an employee is challenged.

2.2.2 Namibian case law – determine whether person is an employee

The Namibian cases discussed below illustrate that the Courts consider
each case on its own facts and merits in order to determine whether a
person is in fact an employee or independent contractor. A Court must
have regard to the substance of the relationship, rather than the
contractual form or designation used. In some cases, it is not even
possible to decide either way on a balance of probabilities, in which event
the Court ruled such relationship to be sui generis (of its own kind).
12
This means that it is a rebuttable presumption.

62
Unit 5 Identification and conclusion of a contract of employment

13
Paxton v Namib Rand Desert Trails (Pty) Ltd

The Court emphasised the importance of the element of control in an employment

relationship, by observing as follows: “Although the exercise of control has been watered
down to 'being an important yardstick for testing' but not 'decisive', it seems to me that it
remains a very important yardstick and perhaps even an indispensable one when
deciding the issue of who is an 'employee' in the context of the provisions of the
Namibian Labour Act.”

The Court also considered the fact that the person was remunerated by means of
commission and held that, although not necessarily decisive, it could be a very strong
indication that results, rather than the rendering of personal services, were required. The
Court then ruled that the person was an independent contractor, in particular for those
services for which she was remunerated.
14
Hannah v Government of the Republic of Namibia

The Court had to rule as to whether a Judge of the High Court is in fact an employee of
the State. It was held that the Judge is not an employee due to the fact that there is no
supervision and control by the State over the judicial function of Judge. The Court held
that it is not only the absence of supervision and control that should be considered, but
the prohibition of any interference with a Judge in the execution of his or her duties, as
guaranteed in the Namibian Constitution. It was therefore difficult to reconcile an
employer-employee relationship with judicial independence. With regards to the control
the State had as to the times when Judges worked, the place where they worked, their
vacations, as well as factors such as their pension and medical contributions, deductions
for income tax on a PAYE basis, it was held to be peripheral to a Judge’s functions and
do not really assist to determine the relationship between the parties, but only served to
indicate that a Judge’s position is sui generis.

The emphasis was therefore placed on the indicating factor of control, as a very
important yardstick.
15
Engelbrecht and Others v Hennes

The Court had to rule whether deputy messengers were employees, agents or
independent contractors. The Court found that the contracts between the parties contain
elements of both employment agreements and that of agency and was thus not able to
determine with certainty whether they were employees, agents or independent
contractors. It then continued to examine every feature of the relationship between the
parties to determine whether the dominant impression was such that it could be
described as an employer-employee relationship. It was observed that the contracts
between the parties could not be judged in isolation, but must be assessed in the social
context in which they were concluded, having regard to the relevant legislation.

The Court considered factors such the nature of the task, the freedom of action, the
magnitude of the contract amount, the manner of payment, the power of dismissal, the
13
1996 NR 109 (LC)
14
2000 NR 46 (LC)
15
2007 (1) NR 236 (LC)

63
Unit 5 Identification and conclusion of a contract of employment

circumstances under which the payment of the reward may be withheld, control,
supervision, subjection to the order of others. With regards to the factor of control, the
Court observed that it may be a matter of ‘extreme delicacy’ to decide if the extent of
control in a particular case was such, considered in the context of the other factors
mentioned, as to constitute an employment contract.

In the Court’s view, factors that were indicative of an employment relationship, included a
discretionary annual bonus payable; they must regard themselves as on duty 24 hrs per
day; the right to be disciplined or dismissed; cell phone allowance; social security
deductions. Among the factors that are contrary to an employment relationship were the
deduction of costs relating to office expenses; transportation at own costs; no paid leave
(although leave had to be approved by the messenger); work not allocated on a daily
basis. Neutral factors, in the Court’s view, included payment by way of commission; no
membership of medical aid or pension fund; income tax deductions and the fact that they
had to report every weekday 08h00-09h00 to check for documents.
16
Swarts v Tube-O-Flex Namibia (Pty) Ltd

The appellant is a shareholder and director of the respondent. After his retirement he was
asked to stay on and continued with sales in the position of sales director for about six
years. His commission was calculated with reference to a percentage of all the
respondent’s sales in respect of which a certain gross profit percentage had been
achieved and not with reference to his own sales. His remuneration was designated as
director’s fees in the books of the respondent and he was not registered at the Social
Security Commission as an employee. He was subject to the control of the respondent’s
managing director and could be disciplined by the latter. He was provided with a motor
vehicle and cell phone for the purposes of conducting sales. His working hours were not
regulated as was the case with other employees and he was not required to be in
attendance at designated hours, but he did not engage in any sales or employment for
any other entity. He did not take or claim annual leave and took time off and attended to
sales at his own discretion.

The arbitrator relied on the factual circumstances surrounding the arrangement between
the appellant and respondent and ruled that the appellant is not an employee of the
respondent.
17
Meatco Corporation of Namibia v Pragt

The appellant orally engaged the respondent as a marketing consultant during April
2008. He was paid N$ 35 000 per month in consultation fees on presentation of an
invoice. While this agreement was still in force, the appellant’s canning manager was
suspended. The respondent was then transferred into the position of canning manager
with overall responsibility for the canning department. During this time, he assisted with
the day to day running of the canning department and organised the staff. He acted as
supervisor when the suspended manager returned to work and assessed the latter’s work
performance, completed assessment reports and approved the latter’s leave application.
The respondent took daily instructions from the factory manager and fell under the latter’s
supervision and control. The appellant did not at any stage deduct PAYE or social
security contributions from the respondent’s remuneration.

The arbitrator found that the respondent was an employee of the appellant.
3. CONCLUSION OF A CONTRACT OF EMPLOYMENT

16
(LCA 51/2012) [2013] NALCMD 8 (27 March 2013) – unreported
17
(LCA 43-2011) [2014] NALCMD 44 (27 October 2014) – unreported

64
Unit 5 Identification and conclusion of a contract of employment

In general, a contract can be defined as an agreement entered into by two

or more persons (a person cannot conclude a contract with him- or
herself) with the serious intention of bringing about an obligation, provided
that certain requirements must be met in order for this obligation to be
valid.

A contract of employment comes into existence as soon as one person

agrees to work for another (the parties must agree on the type of work to
be performed) in return for payment (called remuneration). Apart from a
few exceptions, the law does not require a formal written contract; it can
even take the form of a simple letter of appointment. The problem,
however, with a verbal agreement is that the terms of the contract may be
disputed by one or both of the parties and it is thus advisable that a written
contract be concluded. Employers often wish to argue that they did not
sign a written contract of employment, thus they can terminate the
employment relationship at will, but this is incorrect.

A contract of employment is thus not a social agreement, but an

agreement which is enforceable in law, i.e. the parties have the serious
intention to create legal obligations. All contracts, including the contract of
employment, must comply with certain requirements in order to be
regarded as valid.

4. REQUIREMENTS FOR A VALID CONTRACT OF EMPLOYMENT

The contract of employment is concluded in terms of common law

principles. The common law therefore also determines whether or not the
contract is valid. The following requirements must be met for a contract of
employment to be regarded as valid.

4.1 Consensus


Article 9: NC: Slavery and forced labour
Section 4: Labour Act: Prohibition of forced labour

The parties must reach consensus. Consensus can only be reached if

the parties have a serious intention to create legal obligations and they are
in agreement about the same subject or thing.

65
Unit 5 Identification and conclusion of a contract of employment

“Agreement” implies that parties enter into employment contracts freely

and voluntarily. No person can be forced to enter into a contract of
employment. This idea finds expression in Article 9 of the Namibian
Constitution as well as in Section 4 of the Labour Act.

It is imperative for the parties to reach consensus on the essentialia of the

contract. The essentialia of a contract are those terms that the law
provides as essential to place the contract in a particular class or
category, for example, contract of purchase and sale, contract of
employment and so forth.

The essentialia of a contract of employment are the nature of service and

remuneration. The parties are free to agree to any type of work to be
performed, provided that it is within the limits of the law and not against
good morals. With regards to remuneration, the parties are likewise free to
agree to any amount; however, it is important to note that there are certain
legally prescribed minimum wages in certain industries 18. The essentialia
of a contract of employment shall be discussed in more detail in the study
units below.

EXAMPLE

If one person believes that he/she is being employed as a mechanic and the other is
under the impression that he/she is taking in a cleaner, there is no consensus and
therefore no contract.

4.2 Contractual capacity

Both parties must have contractual capacity. Contractual capacity

means the ability to enter into contracts, i.e. the ability to be the bearer of
rights and duties, and is usually determined by referring to the age of the
respective contracting parties. Other important factors that diminish
contractual capacity include mental illness and intoxication. In terms of the
common law, a child under the age of 7 (seven) years (known as an
infans), an insane person and an intoxicated person have no capacity to
act. They can perform no juristic acts and cannot enter into contracts
themselves. The guardian or parent of the infans or the curator of the
insane person must do it on their behalf. Whereas, a child between the
ages of 7 (seven) and 21 (twenty-one) years (soon to be changed to 18
years 19) can enter into a valid contract with the assistance of his or her
guardian. See discussion on child labour restrictions in par. 5 below.

18
For more detail, refer to Unit 7 of this guide.
19
S10 of the Child Care and Protection Act 3 of 2015

66
Unit 5 Identification and conclusion of a contract of employment

4.3 Lawfulness

The conclusion of the contract and the obligations in terms of the contract
must be lawful.

EXAMPLE

It would not be valid to employ someone as a prostitute or a person who is an illegal

immigrant or a receiver of stolen goods who employs a number of pickpockets.

4.4 Possibility of performance

The performance of the parties’ obligations in terms of the contract must

be possible.

EXAMPLE

If, at the time of the conclusion of the contract of employment, the factory where the
employee would have been employed had burnt down without the owner being aware of
the event at the time, such a contract would be void due to objective impossibility of
performance.

4.5 Formalities

“Formalities” relate to the outward, visible form that the agreement must
take in order to be a valid, enforceable contract, i.e. the contract must be
in writing and signed by the respective parties. As a general rule, there are
no formalities that have to be complied with in the case of employment
contracts, but there are a few exceptions to this rule, for example, the
contracts of candidate legal practitioners, apprenticeship contracts and the
employment contract of a domestic worker.

The employer of a domestic worker is also required to explain (or arrange

to be explained) the provisions of the contract in a language that the
domestic worker understands. 20

It is important to mention again that it is always better to have a written

contract of employment so that both parties know what their respective
obligations are in terms of the contract.
20
GN 258 (Wage order in terms of section 13 of the Labour Act), published in GG (Government Gazette)
No. 5638 dated 24 December 2014.

67
Unit 5 Identification and conclusion of a contract of employment

5. CHILD LABOUR RESTRICTIONS


Article 15: NC: Children’s rights
Section 3: Labour Act: Protection and restriction of child labour

Since the age of a contracting party has an important influence on the

contractual capacity of such person as well as the lawfulness of a
contract, it is an opportune time to include a discussion on the important
topic of child labour from the perspective of the Namibian Constitution
and Labour Act respectively.

Although a child over the age of 7 (seven) years may conclude a valid
contract with the assistance of his/her guardian, there is a statutory
limitation on the minimum age at which a child may legally start working in
Namibia, which is 14 (fourteen) years. 21

The Namibian Constitution 22 provides that children are entitled to be

protected from economic exploitation. Children under the age of 16
(sixteen) years may not be employed in or required to perform work that is
likely to be hazardous or to interfere with their education, or to be harmful
to their health or physical, mental, spiritual, moral or social development.

The Labour Act further provides that children under the age of 18
(eighteen) years may not perform the following categories of work (unless
permitted by the Minister in terms of regulations):

♦ Night work, i.e. between the hours of 20h00 and 07h00;

On any premises where:

♦ Work is done underground or in a mine;

♦ Construction or demolition takes place;
♦ Goods are manufactured;
♦ Electricity is generated, transformed or distributed;
♦ Machinery is installed or dismantled; or
♦ Any work related activities that may place the child’s health, safety,
or physical, mental, spiritual, moral or social development at risk. 23
21
S 3(2) of the Labour Act.
22
Article 15(2)
23
Note the correspondence with Article 15 (2) of the Namibian Constitution. Domestic work also falls into
this category of work.

68
Unit 5 Identification and conclusion of a contract of employment

♦ A person under the age of 18 (eighteen) years may not be

employed as a domestic worker. 24

It is an offence for any person to employ, or require or permit, a child to

work in any circumstances in contravention of Section 3 of the Labour Act.
A person who is convicted of such offence is liable to a fine not exceeding
N$ 20 000 or to imprisonment for a period not exceeding 4 (four) years, or
to both the fine and imprisonment.

6. THE PARTIES TO A CONTRACT OF EMPLOYMENT


Section 1: Labour Act, as amended: Definitions and interpretation –
definitions of “employee” and “employer”
Section 5 (1)(b)(ii): Labour Act: Prohibition of discrimination and
sexual harassment in employment

The two parties in a contract of employment are the employer and

employee. The employer may be a natural person or juristic person (legal
entity), while only an individual or natural person qualifies as employee.

For the purposes of the prohibition of discrimination in employment,

protection is extended to, among others, the person applying for a
particular occupation or job, even though such person is not an employee
yet or has not concluded an agreement with the employer.

7. CONTENTS OF A CONTRACT OF EMPLOYMENT

When parties enter into a contract they normally give expression to their
common intention by some form of conduct. The conduct usually consists
in expressing the terms of the contract in words, either orally or in writing.
However, there are also tacit or silent terms that are incorporated into a
contract by either the Courts; or by operation of law; or by the conduct of
the parties. A term is also known as a provision or clause in a contract. It
obliges a party to act in a specific manner; or not to do a specific act; or it
qualifies (limits) the contractual obligations. A further discussion on the

24
GN (Government Notice) 257 (Regulations in terms of section 135 of the Labour Act), published in GG
(Government Gazette) No. 5638 dated 24 December 2014.

69
Unit 5 Identification and conclusion of a contract of employment

terms and conditions of a contract of employment follows in Unit 6 of this

guide.

8. COMMENCEMENT AND DURATION OF A CONTRACT OF

EMPLOYMENT

An employment contract starts either from the moment the parties have
reached consensus on its essential terms or a date for commencement
can be stipulated in the contract. The contract can be concluded either for
a fixed term (the parties are free to agree to any specified term, except
for the lifetime of the employee) or for an indefinite period (also referred
to as a permanent contract). The parties may also agree that the
employee should serve a probationary period. Probation is a period during
which a supervisor evaluates the skills and progress of a newly hired
worker. The probation period will depend on the type of business and is
usually stipulated in the employer’s workplace policies. 25

As is the case in other contracts, the employment contract may be made

subject to a condition; for example, the employee should successfully
complete a specified training course within six months after appointment.

8.1 Fixed term contract

A fixed term contract expires at the end of the period due to effluxion of
time and there is no need to give any notice of termination.

Unless expressly stated otherwise 26, a fixed term contract may not be
terminated without good cause before the period agreed to have expired.
Neither the employer, nor the employee is thus allowed to terminate the
contract without a valid reason before the period has expired. Serious
breach of contract, insolvency of the employer or supervening impossibility
of performance serve as examples of valid reasons for premature
termination.

The fixed term contract may be renewed, either expressly or tacitly (by the
conduct of the parties), on the same terms as the original contract. If the
contract was entered into for one year, it automatically expires at the end
of the year; however, if the employee continues to work for the employer
and the employer not only allows the employee to continue working, but
also continues to remunerate the employee, the contract has been
renewed tacitly on the same terms and conditions.

25
See further discussion below.
26
Section 30(1) of the Labour Act specifically provides certain minimum periods of notice in cases where
“… a contract of employment may be terminated on notice,…”

70
Unit 5 Identification and conclusion of a contract of employment

Section 5(2) of the Labour Act prohibits discrimination against any

individual on certain stated grounds in any employment decision. An
employment decision includes “security of tenure” 27, which means that it
may be seen as discrimination on one of the mentioned grounds if a
certain position justifies a permanent appointment, but the employer
decides to offer the employee a fixed term contract. 28 Another
interpretation of “security of tenure” is the legitimate expectation of the
renewal of a fixed term contract. If the employee could have had the
legitimate expectation that his or her contract would be renewed for a
further period, s/he could have a claim based on discrimination. Normally,
the person who has been performing the work could also expect to be
given the new contract. If, under the first contract, the employee did not
perform to the satisfaction of the employer, such employee should be
warned that his or her contract shall not be renewed because of, for
example, poor work performance, otherwise s/he may expect the contract
to be renewed.

8.2 Presumption of indefinite employment

Section 128C (Presumption of indefinite employment) of the Labour Act 29

provides that an employee is presumed to be employed indefinitely,
unless the employer can establish a justification for employment on a fixed
term, or the employee is appointed in a managerial position. The Act,
however, does not clarify on what criteria the “justification” must be
evaluated and it also does not specify the meaning of “managerial”.
However, it would not be justified to place a person on a fixed term
contract merely to make sure that the person is able to perform, i.e. to test
the competency of such employee. It would, however, be justified if a
person is temporarily appointed to replacing an employee who is on leave
(for example, maternity leave, sick leave or study leave).

8.3 Indefinite term or permanent contract

The indefinite term or permanent contract stipulates the date of

commencement, but does not give a date on which the contract will
terminate. The employee can thus expect to remain in the job until s/he
resigns, becomes incapacitated, dies or retires, unless the employer has,
in the interim, sufficient grounds to dismiss him or her.

8.4 Probation period

It is important to note that the Labour Act does not provide a definition for
a probationary employee. This does not mean that it is not allowed to

27
Section 5(1)(b)(iv) of the Labour Act.
28
See discussion on S 128C of the Labour Act in par. 8.2 below.
29
S 7 of the Labour Amendment Act amends S 128 of the Labour Act

71
Unit 5 Identification and conclusion of a contract of employment

subject an employee to a probationary period, as it is an acceptable lawful

practice for an employer to establish the competency of an employee.
Many employers are, however, under a misconception of the concept of
probation. It must be emphasised that employees on probation are
permanent (indefinite term) employees or permanent part-time (fixed term)
employees, even while they are on probation. The only differences are
that they will be assessed more frequently than employees who have
already proved their competence, coupled with the fact that it is normally
easier to terminate the contract of employment of a probationary
employee on the basis of poor work performance, otherwise known as
incompetence.

An employee on probation should consequently receive the same

treatment as any other employee in relation to the termination of services,
i.e. the requirements of substantive and procedural fairness to be
complied with. The latter concepts will be discussed in more detail in the
Labour Law 1B guide.

9. TERMINATION OF A CONTRACT OF EMPLOYMENT

9.1 Lawful ways of termination of a contract of employment

A contract of employment can be lawfully terminated in the following

ways:

♦ expiry of the term of service or on completion of the specified task

(fixed term contract) – no need to give notice of termination

♦ notice of termination (indefinite term contracts)

♦ summary termination (no notice period applicable)

♦ by mutual agreement

9.2 Lawful reasons for termination of a contract of employment

A contract of employment may be terminated lawfully for the following

reasons:

♦ death or insolvency of the employer (only the death of a natural

employer)

72
Unit 5 Identification and conclusion of a contract of employment

♦ death or insolvency of the employee (as a general rule, the

insolvency of an employee will not justify the termination of a
contract of employment, but there are exceptions 30)

♦ dissolution of a partnership

♦ misconduct of employee

♦ incompetence of employee

♦ incapacity of employee

♦ breach of contract by either party

♦ on account of the re-organisation, transfer, reduction or

discontinuance of the business for economic or technological
reasons

♦ supervening impossibility of performance

A detailed discussion on the termination of a contract of employment shall

follow in the Labour Law 1B guide.

30
For example, if it is a stipulated condition in the contract of employment or where an insolvent person is
prevented from occupying or practicing a particular profession.

73
Unit 6 Terms and conditions of employment

Unit 6

Terms and conditions of employment

Learning objectives

At the end of this unit, you should be able to:

• Explain what is meant by the “term” of a contract

• Discuss the different ways in which a term can be made part of a contract
• Name and briefly explain the categories of terms of a contract
• Briefly discuss the limitations on the exclusion and/or alteration of an
implied term in a contract of employment
• Give an example of a conditional term in a contract of employment
• Discuss the purpose, effect and validity of a restraint of trade clause in a
contract of employment
• List the groups of employees that are excluded from the operation of the
major part of the Labour Act
• Set out the process to establish the contractual terms and conditions of
employment of an individual employee
• Briefly explain the circumstances in which the terms and conditions of a
contract of employment may be varied lawfully
• Apply the contents of this unit to solve problems

Additional reading
rd
Basson A. et al. (2002): Essential Labour Law: Individual Labour Law (Vol. 1 3 ed.). Houghton:
Labour Law Publications.

Bendix, S. (2000). The Basics of Labour Relations. Cape Town: Juta.

De Beer, P.J. (Ed.) (1998). Labour Court Reports (1993-mid 1998), Namibian Labour Law
Publication (Vol. 1). Windhoek: SDU Seminars.

De Beer, P.J. (Ed.) (2002). Labour Court Reports (1998-mid 2002), Namibian Labour Law
Publication (Vol. 2). Windhoek: ERC.

De Beer, P.J. (Ed.) (2004). Labour Court Reports (2002-January 2004), Namibian Labour Law
Publication (Vol. 4). Windhoek: Ernest & Young.

De Beer, P.J. (Ed.) (2013). Namibian Labour Law Publication (Vol. 7) NLLP 2013(7). Windhoek:
De Beer Law Chambers.

74
Unit 6 Terms and conditions of employment

De Beer, P.J. (Ed.) (2015). Labour Act Compilation, Namibian Labour Law Publication (Vol. 9).
Windhoek: De Beer Law Chambers.
th
Du Bois, F (Ed.) (2007). Wille’s Principles of South African Law (9 ed.). Cape Town: Juta & Co.

th
Du Plessis, J.V. & Fouché, M.A. (2012). A practical guide to Labour Law. (7 ed.). Durban:
Butterworths.
th
Finnemore, M. (1997). Introduction to Labour Relations in South Africa (5 ed.). Durban:
Butterworths.

Govindjee, A. et al. (2007): Commercial law 2 – fresh perspectives. Cape Town: Pearson
Education and Prentice Hall.
nd
Grogan J. (2007). Dismissal, Discrimination & Unfair Labour Practices, (2 ed.). Cape Town: Juta
Law.

Grogan J. (2010). Employment Rights. Cape Town: Juta Law.

th
Grogan, J. (2009): Workplace Law (10 ed.). Cape Town: Juta Law.

Parker, C (2012). Labour Law in Namibia. Windhoek: University of Namibia Press.

Van Rooyen J.W.F. (Ed.). (2011): Namibian Labour Lexicon: The Labour Act, 2007 A to Z Vol. 2
(revised edition). Windhoek: Macmillan Education Namibia Publishers.
th
Venter, R. & Levy, A. (Eds.). (2014): Labour Relations in South Africa (5 ed.). Cape Town:
Oxford University Press Southern Africa (Pty) Ltd.

Labour Act 11 of 2007

Namibian Constitution

Website: www.namiblii.org

Website: www.lac.org.na

Website: www.saflii.org

1. INTRODUCTION

In terms of the common law the parties were free to agree to whatever
terms and conditions of employment they wished, provided that it is within
the limits of the law and good morals.

Although the origin of the employment relationship lies in the contract of

employment, regulated mainly by the common law principles applying to
contracts in general, statutory law has made major inroads into this
common law relationship and the conduct of the parties is now largely
regulated by legislation and the rules created in terms thereof. Since the

75
Unit 6 Terms and conditions of employment

legal concept of freedom of contract applies in our country, the parties to

an employment relationship are supposed to enjoy great freedom to
decide on their respective rights and obligations in terms of the contract
entered into, subject only to the law. However, it is a known fact that
employers hold power by the very fact that employees need jobs and the
parties thus do not negotiate as equals. The common law lends no or little
protection for the weaker individual seeking a job. This usually allows an
employer to dictate the terms of the employment contract.

Labour laws are therefore enacted to provide some protection to the party
in the weaker bargaining position by creating, inter alia, certain basic
minimum conditions of employment (see Chapter 3 of the Labour Act) in
addition to the fundamental rights and protections provided in terms of
Chapter 2 thereof and also provide for methods of enforcing its provisions.

Even though Namibia is fast moving in the direction of having a labour law
system that is largely legislative in nature, common law still plays an
important role as a source of labour law at present. The common law shall
apply as default option if no other sources of rules apply in a particular
situation. In addition hereto, the common law attaches certain automatic
consequences, also known as naturalia, to the contract of employment 1.

Within limits, the parties may agree to exclude implied terms or naturalia
by express agreement; however, it is not possible to exclude any rights
and/or protection provided in terms of the Namibian Constitution and the
Labour Act, unless expressly provided otherwise in the said legislation.

2. TERMS AND CONDITIONS OF CONTRACTS IN GENERAL

A valid contract of employment is an agreement on the employee’s duties

and the remuneration payable by the employer. Very often, parties to the
contract believe that if a term has not been expressed in words, either
orally or in writing, such a term does not form part of the contract. This is,
however, not correct, as contracts generally also bear a heavy load of
silent terms, i.e. terms that are not expressed in words, but imported into
the contract, either by operation of law or read into the contract by the
Court, as if the parties have agreed to it.

All employment agreements are subject to the basic conditions of

employment, as set out in Chapter 3 of the Labour Act. Each of those
provisions will be a term by operation of law in every employment
agreement unless such agreement contains a more favourable term than
that contained in the said Act.

1
The different naturalia of a contract of employment will be discussed in Units 7 and 8 of this guide.

76
Unit 6 Terms and conditions of employment

2.1 What is meant by a “term” of a contract?

As explained before in unit 5 of this guide, a term of a contract (also

known as a clause or a provision) obliges a party to act in a specific
manner; or not to do a specific act; or it qualifies or limits the contractual
rights and obligations of the respective parties.

2.2 Ways in which a term can be made part of a contract

A term can be made part of a contract in the following possible ways:

♦ Expressly
♦ Implied terms
♦ Tacitly

2.2.1 Expressly

These terms are expressed in words (written or spoken). These words

must express the essential terms (essentialia) that are relevant to and
characterise a particular kind of contract.

2.2.2 Impliedly

Another way in which a term can become part of a contract (even though it
was not expressed in words) is when it is incorporated into the contract by
operation of law, both statutory – and common law. When a contract has
been classified as a particular type of contract, the law imputes certain
consequences to the contract. Implied terms are usually referred to as the
naturalia of that particular type of contract.

2.2.3 Tacitly

Although not expressed in words, a term can tacitly be incorporated into a

contract if it is based on the true intention of the parties, as inferred by the
Court from the express terms of the contract and the surrounding
circumstances. A tacit term is only read into a contract if both parties
overlooked or failed to anticipate the event in question and if it is
reasonable and necessary in a business sense for the proper functioning
of the contract 2, i.e. to render it effective and workable. A long standing
practice may give rise to a tacit term.

2
The Courts are, in general, ‘slow’ to import a tacit term into a contract.

77
Unit 6 Terms and conditions of employment

EXAMPLE: TACIT TERM

Although the contract does not expressly make provision for tea breaks, the fact that
employees have had a fifteen minute break in the morning and afternoon over an
extended period of time will normally result in such a break becoming a tacit term of the
contract of employment.

2.3 Categories of terms of a contract

The types of terms in a contract can be classified as essentialia, naturalia

or incidentialia. Once a particular contract has been identified as
belonging to a certain class or category (as indicated by the essentialia)
then the relevant naturalia for that contract follow automatically (unless
expressly excluded by the parties), since the law imputes certain
consequences to the contract. Naturalia are thus defined as terms that are
automatically incorporated into the contract by operation of law (common
law and legislation) as implied terms, unless the parties to the particular
contract expressly excluded and/or altered them. The parties may,
however, not exclude an implied term in the following circumstances:

♦ If it affects the core rights conferred by the Labour Act and the
Namibian Constitution. Remember that the parties are always allowed
to agree to more favourable terms and conditions of employment, but
never less favourable.
♦ If the result is against good morals, for example, where the employee
agrees to obey all instructions of the employer, including unlawful
instructions;
♦ If the terms are essential to the existence of the contract, for example,
it is not allowed to agree that the employer can decide unilaterally at
will what remuneration would be payable to the employee.

Naturalia help to determine the rights and duties of contracting parties and
the effects and consequences of their contracts. Incidentialia of a contract
are those terms specifically agreed upon expressly by the parties over and
above those required by law, i.e. apart from the essentialia and naturalia.

Both the essentialia and incidentialia of a contract are express terms,

while the naturalia are silent terms that can, within limits, be excluded
expressly.

78
Unit 6 Terms and conditions of employment

EXAMPLES: ADDITIONAL TERMS OR INCIDENTIALIA

Some examples of general incidentialia in employment contracts are clothing allowances,

travel and entertainment allowances, company cars or car and petrol allowances, meal
allowances, cellular phones and cellular phone call allowances and allowances for home
security. Examples of other non-financial benefits which an employee may be entitled to,
include: - Study leave, flexible or varied working hours, work from home provisions and
the taking of annual leave during your children's school holidays.

2.4 Conditions

A condition is a contractual term that renders the operation and

consequences of the contract dependent on the occurrence (or non-
occurrence), of an uncertain future event. A condition is an example of an
incidentialia of a contract.

EXAMPLE: CONDITION

The permanent appointment of an employee can be made subject to the condition that he
has to obtain a driver’s licence within six months of the commencement of the contract.

2.5 Restraint of trade

Another type of incidentialia that sometimes appears in employment

contracts is the restraint of trade clause. An agreement is said to be in
restraint of trade when it restricts the freedom of one or both of the parties
to engage in one or more specified commercial activities. The main
purpose for concluding a contract in restraint of trade would be for the
protection of goodwill and trade secrets. Goodwill is connected with the
capacity of a business to attract customers (the main elements will often
be the name and location of the business). It has a pecuniary value and
can be sold together with the assets of the business. Trade secrets, on the
other hand, will cover all confidential information, whether of a technical
nature or not, and will include secrets relating to business methods,
formulas, price lists, customers, trade connections, and so on.

An employee is often trained in the course of his or her duties and may
acquire experience, insight and knowledge of trade secrets. During the
term of employment, the employee is bound to promote the employer’s
business and to act in good faith (one of the implied terms). This means
that the employee may not place him/herself in a position where his or her
own interest conflicts with that of the employer, i.e. the employee may not
compete with the employer by using the acquired information for his or her

79
Unit 6 Terms and conditions of employment

own benefit. Once the contract of employment has come to an end, the
employee may use this information, even if s/he is in competition with his
or her previous employer, unless the contract contains a restraint of trade
clause. The restraint of trade clause thus provides protection to the
employer after the employee has left the services of the employer.

In terms of this type of restraint, an employee is prevented from starting

his or her own business in competition with the employer or working
for competitors for a specified period in a specified geographical area
after leaving the services of the employer. Such a clause restricts the
freedom of the employee to conduct commercial activities at his or her
own discretion or to work for an employer of his or her own choice, in
order to prevent the employee from unfairly competing with his or her
employer. The purpose of a restraint of trade is therefore not to prevent
competition in general but to prevent unfair competition.

The law regards it in a serious light if the right of a person to freely partake
in trade is restricted, in particular in view of the constitutional right to
practise any profession, or carry on any occupation, trade or business. 3
This type of contract brings two principles of public policy into conflict, i.e.
on the one hand, it is in public interest that everyone should be in a
position to freely partake in trade and business activities, while it is also in
public interest that contracts must be executed. Thus far, the Courts have
ruled that contractual commitment is the stronger of the two interests. A
contract in restraint of trade is therefore valid and enforceable if the
employer has a protectable interest which deserves protection after the
termination of the employment contract and the restraint is reasonable. A
party who would not like to be bound by the restriction, should convince
the Court that such enforcement would be contrary to public interest. The
employee will accordingly bear the onus of proving that the clause is
contrary to public policy and thus unenforceable.

Such a clause will be contrary to public policy and unenforceable if the

Court is of the opinion that it unreasonably restricts a person’s freedom to
trade. The Court will examine each agreement on its own merits to
establish whether the terms are against public policy and whether the
limitations placed on the employee to earn a living are unreasonable. A
restraint would, for example, be regarded as unreasonable if the employee
is prevented from using his or her own skill in order to generate an
income. The inequality of bargaining power of the respective parties,
period of the restriction and area are just some of the many factors that
may be taken into consideration in order to establish the reasonableness
of the restraint.

3
Article 21(1)(j) of the Namibian Constitution.

80
Unit 6 Terms and conditions of employment

NAMIBIAN CASES ON TACIT TERMS IN AN EMPLOYMENT CONTRACT

4
Municipality of Windhoek v Van Wyk & Others

Employees were employed as firemen, engaged in essential services, which requires an

instant response. The question before Court was whether the employees qualify for
overtime payment during the times that they are on non-active standby duty. Does the
non-active standby duty constitute work? The employees claimed that they should get
paid for the entire period of non-active duty and not just those periods that they actually
perform services or actually work and for which they are paid overtime.

The Court decided that the employees have for years accepted the terms of their
employment contract which clearly contemplates that there is a distinct difference
between active and non-active standby duties. These conditions of services contemplate
that non-active standby duty is not regarded as work for the purposes of remuneration
and that overtime payment would be made only in respect of any work performed during
standby. By agreeing to these terms, the employees accepted this basis of their
employment and remuneration for such services. Their conditions of employment would
accordingly be interpreted in this manner.

The Court observed that, in interpreting the contract of employment between the parties,
the conduct of the parties is an important tool to interpret the parties’ intention as
expressed in their agreements.
5
Basson & Others v The Ministry of Fisheries & Marine Resources

In this matter, Fishing Inspectors lodged a complaint in the District Labour Court for
unpaid overtime. The employer claimed that there was no agreement to work overtime,
as this was not embodied in their letters of appointment.

The Court held that it is generally accepted that a term may not be tacitly imported to a
contract unless the implication is a necessary one in the business sense to give efficacy
to the contract. The Court referred to the matter of Standard Bank of South Africa Ltd and
Another v Ocean Commodities Inc and Others 1983(1) SA 276 (A) where it was said as
follows:

‘In order to establish a tacit contract it is necessary to show by a preponderance of

probabilities, unequivocal conduct which is capable of no other reasonable interpretation
than that the parties intended to, and did in fact contract on the terms alleged. It must be
proved that there was in fact consensus ad idem.’

4
NLLP 2002(2) 158 NLC
5
NLLP 2004(4) 58 NLC

81
Unit 6 Terms and conditions of employment

NAMIBIAN CASES ON RESTRAINT OF TRADE IN AN EMPLOYMENT

RELATIONSHIP
6
Labour Supply Chain Namibia (Pty) Ltd v Awaseb &
7
Alexander Forbes Group Namibia (Pty) Ltd v Ahrens

The Court held that the employer has a protectable legal right, i.e. the right to be
protected against unlawful competition. The employee’s conduct of the unlawful use of
confidential information, which he gained while in the employment of the employer,
amounts to unlawful competition. The Court confirmed that customer goodwill and trade
connections have long been regarded as a proprietary interest that requires judicial
protection.

Where an employee, in breach of a restraint of trade agreement, continues to take away

the clients of his former employer, such employer stands to lose substantially and it thus
justifies the granting of an urgent interim interdict.

8
Wiese t/a Support.com v PASTEC Distribution & Training CC

In terms of the restraint of trade agreement, the employee was not allowed to canvass or
solicit orders from any person or firms who have been a customer or client of the
corporation during her term of employment. This restraint would apply ad infinitum (for an
unlimited period). She was also prohibited from being directly or indirectly involved in any
competitive business involving the sale, distribution or support of Sage Pastel Software
within the Khomas or Erongo Region for a period of 12 months after the date of
termination of the employment contract with the corporation. Upon termination, she
signed a contract that resulted in a relaxation of the restraint of trade clause, as she
signed on as an I-Forum Member of the Corporation which limits her client base.
However, on her last day of employment, the Corporation withdrew the I-Forum status,
but she would still be eligible to receive referral commission if she refers clients who have
never used the Pastel package.

The employee claimed that the restraint of trade clause is against public policy and thus
unenforceable. Secondly, it is in conflict with her constitutional right to carry on any trade
or profession, as enacted in Article 21(1)(j) of the Constitution. The Court held that the
fundamental right of freedom to trade is not an unlimited right. This constitutional right
does not per se preclude agreements which have the effect that the freedom to trade is in
some sense or other restricted.

The Court further confirmed that public policy or public interest can vary from time to time
and does not remain static. A restraint invoked purely for the purpose of avoiding
competition and not to protect some proprietary interest would be unreasonable and
against public interest. The restraint must be reasonably necessary for the legitimate
protection of the covenantee’s protectable proprietary interest, being his goodwill in the
form of trade connections, and his trade secrets.

6
LCA 426-2009 (26 January 2010) – unreported
7
LCA 75-2010 (5 April 2011) – unreported
8
2012 (1) NR 344 (HC)

82
Unit 6 Terms and conditions of employment

In this instance, the Court held that the unlimited enforcement of the restraint of trade
clause is against public policy. Existing clients are prohibited from doing business with
the former employee, even if they wanted to. Such a restrictive regime is against public
policy.

3. STATUTORY TERMS AND CONDITIONS OF EMPLOYMENT


Section 3: Labour Act: Prohibition and restriction of child labour
Section 4: Labour Act: Prohibition of forced labour
Section 5: Labour Act: Prohibition of discrimination and sexual
harassment in employment
Section 6: Labour Act: Freedom of association
Section 9: Labour Act: Basic conditions
Articles 8, 9, 10, 15, 19 & 21: NC

In terms of Section 9 of the Labour Act, the basic conditions of

employment, as set out in Sections 10-37, constitutes a term of any
contract of employment, except to the extent that any other law or the
contract provides for more favourable conditions. These sections 9 deal
with aspects such as:

♦ Remuneration
♦ Hours of work
♦ Leave
♦ Accommodation
♦ Termination of employment

Under common law, employers are obliged to provide their employees

with reasonably safe and healthy working conditions. This duty was re-
enforced in the Labour Act 10.

Other important statutory terms and conditions of service are contained in

the Namibian Constitution, as set out in Unit 1 of this guide.

9
Sections 10-28 to be discussed in detail in Unit 7 of this guide.
10
Chapter 4 (Sections 39-46), to be discussed further in Unit 7 of this guide.

83
Unit 6 Terms and conditions of employment

4. APPLICATION OF THE LABOUR ACT


Section 2: Labour Act: Application of the Act

The provisions of Section 5 (Prohibition of discrimination and sexual

harassment in employment) of the Labour Act are applicable to all
employers and employees in Namibia.

The remaining provisions of the said Act apply to all employers and
employees in Namibia, except to members of the:

♦ Namibian Defence Force, unless the Defence Act 1 of 2002 provides

otherwise;
♦ Namibian Police Force and a municipal police service as referred to in
the Police Act 19 of 1990, unless the aforesaid Police Act provides
otherwise;
♦ Namibian Central Intelligence Service, unless the Namibia Central
Intelligence Service Act 10 of 1997 provides otherwise;
♦ Prison Service, unless the Prisons Service Act 17 of 1998 provides
otherwise.

5. HOW TO DETERMINE THE TERMS AND CONDITIONS OF

EMPLOYMENT OF AN INDIVIDUAL EMPLOYEE


Section 1: Labour Act: Definitions and interpretations – definition of
“collective agreement”
Section 9(3): Labour Act: Basic conditions
Section 70: Labour Act: Legal effect of collective agreements
Section 139: Labour Act: Exemptions and variations
Provision 2(5): Schedule 1: Labour Act: Transitional provisions

In order to determine the terms and conditions of employment of an

individual employee, the following should serve as a guideline:

• The starting point is always the contract of service. The terms of the
contract of service may override the common law, however, the basic

84
Unit 6 Terms and conditions of employment

conditions of employment as set out in Chapter 3 [Basic Conditions of

Employment] of the Labour Act shall apply, unless the Labour Act does
not apply to the employee in question 11 or; a more favourable term is
provided for in terms of the contract of employment or collective
agreement 12 or; any legislation regulating the employment of a
particular individual or; the basic condition of employment has been
altered as a result of an exemption or variation granted in terms of
Section 139 of the Labour Act.

• Whether the employee is bound by a collective agreement. 13 Section

70(3) of the Labour Act specifically provides that, subject to certain
provisions, the provisions of a collective agreement relating to the
terms and conditions of employment vary every contract of
employment between an employee and an employer who are both
bound by the agreement and are deemed to have been incorporated
into the individual contract of employment. Please note that a detailed
discussion on collective agreements shall follow in the Labour Law 1B
guide.

• Legislation and collective agreements take precedence over the

individual contract of employment

• If neither the individual contract, collective agreement, nor statute

regulates the issue, custom and practice in the industry or trade
concerned and the common law, interpreted in the light of the
Namibian Constitution, may apply.

In a situation where the terms and conditions of employment of a

particular employee are in dispute, the parties very often tend to focus
their attention only on the written contract of employment, but it is clear
from the guidelines above that legislation and collective agreements are
enjoying preference over the individual contract of employment. If the
contract of employment is silent on particular terms and conditions that are
laid down in the relevant legislation or a collective agreement, those terms
will automatically be part of the contract as if the parties have agreed to it.
Section 9 of the Labour Act provides expressly that, subject to certain
exceptions, a basic condition of employment “constitutes a term of any
contract of employment …” Furthermore, the common law obligations of

11
See Section 2 of the Labour Act.
12
If there is an agreement in place in terms of the Labour Act 6 of 1992 which is more favourable to the
employee, such terms and conditions shall prevail even if it is in conflict with the current legislation, i.e.
the Labour Act 11 of 2007. Thus, if the terms and conditions of the individual contract of employment are
more favourable than those contained in the Labour Act, one must give effect to the contract, if not, the
Labour Act shall apply – section 9 of the Labour Act refers.
13
See definition of “collective agreement” in Unit 1 of this guide.

85
Unit 6 Terms and conditions of employment

the parties (unless expressly excluded in the contract of employment 14)

form part of the implied terms (naturalia) of the contract.

When the amount of payment has not been specified in the contract,
either verbally or in writing, the employee can expect to be paid the rate
normally paid for that kind of work. In the same way, if an employee works
for some time under certain conditions, these terms may implicitly become
part of the terms of his/her contract in the absence of any statement to the
contrary.

6. VARIATION OF THE TERMS AND CONDITIONS OF EMPLOYMENT


Section 50(1)(e): Labour Act: Employer and employers’ organisation
unfair labour practices
Section 51(4): Labour Act: Disputes concerning this Chapter
Section 33(2)(b): Labour Act: Unfair dismissal
Section 6(1)(c): Labour Act: Freedom of association

Once the parties have agreed on the terms and conditions of the contract,
these terms are fixed and neither party may unilaterally change them
unless the original contract expressly provides for variation.

6.1 Unfair labour practice

Section 50(1)(e) of the Labour Act stipulates that it is an unfair labour

practice for an employer to unilaterally alter any term or condition of
employment. Section 51(4) further stipulates that, if a dispute concerning
an alleged alteration of a term or condition of employment in violation of
section 50(1)(e) is referred to the Labour Commissioner within 30 days
following the alteration, the employer must restore such term or condition
of employment as of the date of the alteration or refrain from effecting
such alteration until the dispute is resolved or settled.

6.2 Unfair dismissal and/or prejudicial treatment

It will further be regarded as an unfair dismissal if the employee is

dismissed for failing or refusing to do anything an employer must not
lawfully permit or require an employee to do 15. The employer is thus not
allowed to dismiss an employee if s/he refuses to accept a change in the

14
Such exclusion is only allowed within limits, i.e. it would not be possible if the result would be contra
bonos mores; or the exclusion of rights conferred by the Labour Act and/or the NC.
15
Section 33(2)(b) of the Labour Act.

86
Unit 6 Terms and conditions of employment

terms and conditions of the contract of employment. Section 6(1)(c) of the

Labour Act contains a similar provision by providing that a person must
not prejudice an employee or an individual seeking employment because
of past, present or anticipated failure or refusal to do something that an
employer must not lawfully permit or require an employee to do.

6.3 Circumstances in which a change is allowed

The terms and conditions of a contract of employment may be varied

lawfully in any one or more of the following circumstances:

♦ Mutual agreement between the parties

It is important to note that the consent does not need to be express

consent. A change can also be accepted tacitly by not objecting when it is
introduced and at the same time adhering to it.

♦ Change(s) in basic conditions of employment legislation

Changes in basic conditions of employment legislation will normally

automatically supersede any provision in the contract that is less
favourable to the employee.

EXAMPLE: CHANGE(S) IN BASIC CONDITIONS OF EMPLOYMENT LEGISLATION

In a situation where the employment contract provides that the employee would be
entitled to annual leave as prescribed by the Labour Act 6 of 1992, i.e. 24 consecutive
days (18 working days), irrespective of the number of days such an employee works per
week, the Labour Act 11 of 2007 shall apply automatically, as it provides that a person
who, for example, works 5 days per week is entitled to a minimum of 20 working days in
respect of each annual leave cycle, which is more favourable to the employee.

♦ Change in work practices

During an employee’s term of employment, it may be required from an

employer to change work practices for the purposes of business
efficiency. In order to establish whether a change constitutes a change of
work practices or a variation of contractual provisions, shall depend on the
facts of each case. The contract is varied, for example, if the change
involves work of a nature not initially contemplated by the parties or a
reduction in status or remuneration.

As a general rule, if it is necessary to introduce a change in work

practice(s) for the sake of business efficiency and such change will not
amount to a change to the terms and conditions of employment of an

87
Unit 6 Terms and conditions of employment

employee, the employer is entitled to introduce this change without any

prior consultation and or consent from the employee. However, if such
change will cause a change to the terms and conditions of employment,
an employer must first consult with the employee(s) affected by such
change in order to seek a mutual agreement on the matter. If no
agreement can be reached and the employer is able to justify the change
based on the operational requirements of the business entity, the
employer can proceed to follow the retrenchment procedures prescribed in
the Labour Act. Therefore, although an employee is allowed to refuse to
agree to a change in the terms and conditions of employment, such
employee can be dismissed on the basis of the operational requirements
of the business and thus not for refusing to agree to the proposed
change(s). 16

16
The statutory concept of unfair labour practices shall enjoy further attention in the Labour Law 1B guide.

88
Unit 7 Statutory and common law duties of the employer

Unit 7

Statutory and common law duties of the employer

Learning objectives

At the end of this unit, you should be able to:

• List the statutory and common law duties of the employer

• Define the terms “remuneration”, “basic wage” and “payment in-kind”
• Explain the rules relating to in-kind payments
• Briefly discuss the concept of minimum wages
• Analyse the common law rule of “no work, no pay”
• Calculate the weekly, daily and hourly rate of remuneration and basic
wage respectively
• Briefly discuss the time, method and place of payment of remuneration of
an employee
• List the deductions that an employer is allowed to make from an
employee’s remuneration
• Discuss the duty of an employer to receive and employee into service and
the provision of work
• Set out the maximum weekly and daily hours of work for the different
categories of employees
• Briefly discuss the law regarding the extension of ordinary working hours
and the concept of overtime
• Briefly discuss the minimum conditions pertaining to meal intervals, night
work, daily spread-over, weekly intervals and work on Sundays and public
holidays
• Discuss the minimum conditions pertaining to annual leave, sick leave,
compassionate leave and maternity leave
• Compare the rules that apply to employees living on agricultural land,
domestic workers and other employees in respect of the provision of
accommodation
• Briefly discuss the employer’s duty to provide safe working conditions to
employees
• Give a brief overview of the main miscellaneous duties of an employer
• Apply the contents of this unit to solve problems

89
Unit 7 Statutory and common law duties of the employer

Additional reading
rd
Basson, A. et al. (2002). Essential Labour Law: Individual Labour Law (Vol. 1 3 ed.). Houghton:
Labour Law Publications.

Bendix, S. (2000). The Basics of Labour Relations, Cape Town: Juta Law.

De Beer, P.J. (Ed.) (1998). Labour Court Reports (1993-mid 1998), Namibian Labour Law
Publication (Vol. 1). Windhoek: SDU Seminars.

De Beer, P.J. (Ed.) (2002). Labour Court Reports (1998-mid 2002), Namibian Labour Law
Publication (Vol. 2). Windhoek: ERC.

De Beer, P.J. (Ed.) (2004). Labour Court Reports (2002-January 2004), Namibian Labour Law
Publication (Vol. 4). Windhoek: Ernest & Young.

De Beer, P.J. (Ed.) (2013). Namibian Labour Law Publication (Vol. 7) NLLP 2013(7). Windhoek:
De Beer Law Chambers.

De Beer, P.J. (Ed.) (2015). Labour Act Compilation, Namibian Labour Law Publication (Vol. 9).
Windhoek: De Beer Law Chambers.
th
Du Plessis, J.V. & Fouché, M.A. (2012). A practical guide to Labour Law. (7 ed.), Durban:
Butterworths.

Govindjee, A. et al. (2007): Commercial law 2 – fresh perspectives. Cape Town: Pearson
Education and Prentice Hall
th
Grogan, J. (2009). Workplace Law (10 ed.). Cape Town: Juta Law.

Parker, C (2012). Labour Law in Namibia. Windhoek: University of Namibia Press.

Van Rooyen J.W.F. (Ed.) (2011). Namibian Labour Lexicon: The Labour Act, 2007 A to Z Vol. 2
(revised edition). Windhoek: Macmillan Education Namibia Publishers.
th
Venter, R. & Levy, A. (Eds.) (2014). Labour Relations in South Africa (5 ed.). Cape Town:
Oxford University Press Southern Africa (Pty) Ltd.

Employment Services Act 8 of 2011

Labour Act 11 of 2007

Namibian Constitution

Website: www.namiblii.org

Website: www.saflii.org

Website: www.saflii.org

90
Unit 7 Statutory and common law duties of the employer

1. INTRODUCTION

As discussed in Unit 6 of this guide, a number of implied terms form part

of the contract of employment, imposing duties on the parties, even if they
have not expressly agreed to them. Prior to the conclusion of a contract of
employment, the parties have no rights to enforce against each other;
however, there are certain statutory exceptions to this rule. For both the
purposes of Section 5 (Prohibition of discrimination and sexual
harassment in the workplace) of the Labour Act and the Affirmative Action
(Employment) Act 29 of 1998 the employer’s duty is extended to an
applicant for employment.

Chapter 3 [Basic Conditions of Employment] of the Labour Act is of

considerable importance since it sets minimum standards for the
protection of employees. Employees represented by a trade union may
negotiate additional and/or more favourable terms and conditions of
service which are contained in collective agreements. As mentioned
earlier, disregard for the weaker position of the individual employee gives
rise to a situation where the common law does not provide much
protection regarding, among others, hours of work, meal intervals, leave
and termination of employment. The Labour Act creates minimum
conditions of employment which the parties are not allowed to ignore,
even if both are willing to do so. The minimum (or basic) statutory
conditions protect employees against exploitation, since they are not on
an equal footing with the employer, especially when a new applicant for
employment is negotiating an employment contract. As stated before, the
parties may always agree to better terms and conditions of employment in
either the contract of employment or in a collective agreement.

As explained in Unit 6 of this guide, it is lawful for the parties to change the
common law duties of the respective parties, provided that it is within the
limits of the law and not against good morals.

The statutory duties of the employer, included in the discussion below, are
the absolute minimum obligations imposed upon the employer. It is,
however, important to note that the duties set out below are not the only
statutory duties imposed upon an employer from a labour perspective, as
other relevant legislation such as the Social Security Act, Affirmative
Action (Employment) Act, Employees’ Compensation Act, Employment
Services Act 8 of 2011 and the Vocational Educational and Training Act 1
of 2008 impose additional obligations.

91
Unit 7 Statutory and common law duties of the employer

2. PAYMENT OF REMUNERATION


Section 1: Labour Act: Definitions and interpretations – definitions of
“lockout”, “remuneration” and “strike”
Section 8(1): Labour Act: Definitions relating to basic conditions of
employment – definitions of “basic wage” and “monetary
remuneration”
Section 8(2): Labour Act: Definitions relating to basic conditions of
employment
Section 13: Labour Act: Wage Order
Section 14: Labour Act: Exemptions from a wage order
Regulation 2: Labour General Regulations: Labour Act: Portion of
basic wage that may be paid in-kind and calculation of in-kind
payments

The employer’s most important duty is to pay the employee a salary or

wage strictly and punctually in terms of the agreement. Both in terms of
common law and the Labour Act, remuneration may consist partly in cash
and partly in kind.

The remuneration is determined in the contract by the parties themselves.

If the contract makes no provision for the payment of remuneration and
there is no method to calculate a wage, the Court may either hold that
there is no contract of employment or that the employer is bound to pay a
‘reasonable wage’. A ‘reasonable wage’ will depend on circumstances
such as custom and practice in the workplace and/or industry concerned,
the type of service and the location of the employment.

2.1 Definitions

♦ Remuneration means the “total value of all payments in money or

in kind made or owing to an employee arising from the employment
of that employee;” The remuneration of an employee thus includes
everything the employee receives in return for services rendered.

♦ Monetary remuneration is that part of the remuneration that is

paid in money.

♦ Basic wage means the monetary remuneration part of the

remuneration plus the cash equivalent of payment in-kind, but

92
Unit 7 Statutory and common law duties of the employer

excludes allowances such as travel and subsistence, housing,

motor vehicle, transport, and professional allowances; pay for
overtime, additional pay for work on a Sunday and/or public
holiday; additional pay for night work or payments in respect of
pension, annuity or medical benefits or insurance.

♦ Payment in-kind means payment in the form of goods or services

instead of money, for example, a crate of beer or soft drink every
week. It is important to note that an employer may not pay an
employee an in-kind payment except by agreement or in terms of a
collective agreement 1. Furthermore, the cash equivalent of the in-
kind payment may not exceed one-third of the employee’s basic
wage. The value of the in-kind payment is based on the producer’s
price of the commodities comprising the in-kind payment or, if there
is no producer’s price available, the average price of the commodity
at agricultural cooperatives or wholesalers in the nearest city or
town 2.

The importance of these definitions will become evident in the

discussions that follow.

2.2 Minimum wages

There is a common misconception that the Labour Act lays down

minimum wages; however, neither the common law nor the Labour Act
prescribes any minimum wages.

The Labour Act does, though, provide for the establishment of a Wages
Commission 3, which reports to the Minister for the purposes of making a
wage order in terms of Section 13 of the Labour Act, determining
remuneration and other conditions of employment for employees in any
industry and area. The Minister may, upon application, exempt any person
or category of persons from any provision of a wage order, provided that
the Minister is satisfied that either the terms and conditions of employment
of the employees affected by the exemption are not less favourable than
those contained in the wage order, or special circumstances exist that
justify the exemption in the interest of the affected employees.

Recently, the Minister issued a wage order in terms of Section 13 4for

minimum wages and supplementary minimum conditions of employment 5
for domestic workers.
1
Section 8(2): Definitions relating to basic conditions of employment: Labour Act.
2
See regulation 2 on page 2 of the Labour General Regulations: Labour Act
3
Sections 105-114 of the Labour Act.
4
GN 257 (Regulations in terms of section 135 of the Labour Act) & 258 (Wage order in terms of Section
13 of the Labour Act), published in GG No. 5638 dated 24 December 2014. This wage order does not apply
to domestic workers covered by any collective agreement in the agricultural sector.

93
Unit 7 Statutory and common law duties of the employer

A minimum wage can also be established in terms of a collective

agreement and will supersede a wage order if the terms contained in the
collective agreement are more favourable. Until date, minimum wages
have been determined by means of a collective agreement (which terms
were extended to the whole industry) for the agricultural sector 6, the
construction industry 7 as well as the security industry 8 respectively.

2.3 No work, no pay principle

The employee is only entitled to receive remuneration for work actually

done in terms of the common law rule of ‘no work, no pay’. Thus, in terms
of the common law, if an employee is not able to work because of illness,
the employer does not have to pay the employee any remuneration. This
rule, however, has been changed by the Labour Act by providing for a
variety of leave periods with payment. The “no work, no pay” rule also
does not apply in a situation where the employee exercises his or her right
to leave a dangerous place of work 9. As a general rule, an employee who
had been suspended from work is also entitled to remuneration. 10

The converse also applies, i.e. ‘no pay, no work’. Employees may refuse
to work if their employer fails to pay them and will thus not be in breach of
contract or be deemed to be on strike. A strike and lockout are regarded
as non-performance as far as remuneration is concerned 11.

Although the remuneration of employees is usually based on hours of

work, employees are entitled to remuneration when they have made their
services available to the employer, whether or not the employer utilised
such work/skills. There is no prohibition against the inclusion of a “no
work, no pay rule” clause in a particular agreement; it is practice to include
it where the business operations necessitate such a term as an exception
to the rule.

5
Such as the payment of a transport allowance to a live-out worker; the provision of food to an employee
who qualifies for a meal interval in terms of the Labour Act; the provision of free accommodation
(complying with prescribed requirements) to a live-in worker; the provision of a uniform and personal
protective clothing, without charge and the requirement of concluding a written contract (as prescribed).
6
The collective agreement applicable to the agricultural sector also regulates the conditions of
accommodation and provisions concerning the food requirements of live-in employees and their
dependants.
7
The collective agreement applicable to the construction industry also regulates aspects such as the
provision of minimum protective clothing and equipment; minimum productivity levels; performance
standards; living away allowances; payment of a service allowance (similar to a bonus); training of
workplace union representatives; matters regulating the re-employment of retrenched employees and
provision of pension fund benefits.
8
The collective agreement applicable to the security industry also regulates the provision of a uniform to
employees.
9
See discussion below on safe working conditions.
10
The exceptions to this rule are discussed in Unit 9 of this guide.
11
See section 76(1) of the Labour Act.

94
Unit 7 Statutory and common law duties of the employer

Reasonable remuneration for services rendered is based on the principle

of unjust enrichment 12, as the employer benefited by the work done and
should accordingly remunerate the employee in return. This rule, strangely
enough, does not apply in a situation where the employee absconded or
abandoned the job before completion. In the latter situation, the employee
is not entitled to claim remuneration for the partial performance already
rendered.

2.4 Calculation of hourly, daily, weekly or monthly rate of remuneration

and basic wages


Section 10: Labour Act: Calculation of remuneration and basic
wages

It may become necessary to calculate an employee’s hourly, daily, weekly

or monthly rate of remuneration, primarily for the purposes of the
calculation of payment due for overtime, night work, work performed on
Sundays and public holidays and leave credit upon termination of
employment. Most employees receive their remuneration at the end of a
specified interval, which means that they are remunerated on the basis of
time worked. There are, however, employees who are remunerated on a
different basis, which is not directly related to actual hours of work. The
method of calculation of the weekly, daily and hourly rate of payment of
these two groups of employees is explained below. (You will note that the
method of calculation is the same for both the purposes of remuneration
and basic wage.)

2.4.1 Employees who are remunerated on the basis of time worked

Please refer to Table 1 on page 22 of the Labour Act and the example
below for the method of calculation of the weekly, daily and hourly
remuneration and basic wages of employees who are remunerated on this
basis.

12
A claim for a quantum meruit is reasonable remuneration for services rendered.

95
Unit 7 Statutory and common law duties of the employer

CALCULATION OF DAILY, WEEKLY AND HOURLY REMUNERATION/BASIC WAGE

Johnny works for ABC Co. 5 days a week, 8 hrs a day and earns a basic salary of N$
5000 per month. In addition hereto he receives the following allowances: Transport
allowance of N$ 500; Housing allowance of N$ 1000; Contributions by the employer to a
pension fund of N$ 500.

Remuneration:

Weekly remuneration: Monthly remuneration divided by 4.333, i.e. N$ 7000 ÷ 4.333 =

N$ 1615-51

Daily remuneration: Weekly remuneration divided by number of days per week e/e
works, i.e. N$ 1615.51 ÷ 5 = N$ 323-10

Hourly remuneration: Daily remuneration divided by number of hrs e/e works per day,
i.e. N$ 323-10 ÷ 8 = N$ 40-39

Basic wage:

Weekly basic wage: Monthly basic wage divided by 4.333, i.e. N$ 5000 ÷ 4.333 = N$
1153-93

Daily basic wage: Weekly basic wage divided by number of days per week e/e
works, i.e. N$ 1153-93 ÷ 5 = N$ 230-79

Hourly basic wage: Daily basic wage divided by number of hrs e/e works per day, i.e.
N$ 230-79 ÷ 8 = N$ 28-85

2.4.2 Employees who are remunerated on a basis other than time worked

In these instances, the remuneration must be converted to a weekly

remuneration in order to calculate the daily and/or hourly rate of
remuneration or basic wage.

In order to calculate the average weekly remuneration or basic wage of

such an employee, the total amount of remuneration earned over a period
of the immediately preceding 13 (thirteen) weeks of work or the shorter
period of work, if applicable, must be divided by the total number of weeks
the employee worked. Once the weekly amount is available, the method of
calculation of the daily and hourly rate will be the same as above.

96
Unit 7 Statutory and common law duties of the employer

2.5 Time, method and place of payment of remuneration


Section 11: Labour Act: Payment of remuneration
Regulation 3: Labour General Regulations: Labour Act: Written
statement of particulars of monetary remuneration
Annexure 1: Annexure to Labour General Regulations: Labour Act
Particulars of monetary compensation

If the time, method and/or place of payment have not been stipulated in
the contract or in a collective agreement or if the provisions are less
favourable than what are provided in the minimum conditions laid down,
section 11 of the Labour Act shall apply.

In terms of section 11, the employer is obliged to pay any remuneration

(both in money and in kind 13) not later than one hour after completion of
the ordinary hours of work on a normal pay day. The monetary part of the
remuneration must be paid in cash or, at the employee’s option, by
cheque to the employee personally or by direct deposit into an account
designated in writing by the employee. Payment of remuneration must
always be accompanied by a written statement, which must contain
certain prescribed particulars 14, given to the employee in a sealed
envelope.

The employee may not be paid in a shop, bottle store or other place where
intoxicating liquor is sold or stored or in any place of amusement, unless
the employee is employed in that shop, bottle store or place.

13
The employee may request the employer to make the payment in kind portion at a different time than
stipulated. See section 11(4) of the Labour Act.
14
Please refer to Annexure 1: Annexure to Labour General Regulations on p. 9-10.

97
Unit 7 Statutory and common law duties of the employer

2.6 Restrictions on deductions from remuneration


Section 12: Labour Act: Deductions and other acts concerning
remuneration

The provisions of section 12 restrict an employer to make deductions from

an employee’s remuneration, as follows:

2.6.1 Automatically allowed deductions

Any amount required or permitted in terms of a court order15, or any law 16.

2.6.2 Total of deductions listed below may not exceed one-third of the
remuneration

♦ Required or permitted in terms of a collective agreement or an

arbitration award;

♦ If the employee agreed thereto in writing and it concerns a

payment in respect of any one or more of the following:

o Rent in respect of accommodation supplied by the employer;

o Goods sold by the employer;
o A loan advanced by the employer;
o Contributions to employee benefit funds;
o Subscriptions or levies payable to a registered trade union

2.6.3 Deductions of value of in-kind payments or contributions due to

domestic workers

An employer may not deduct the value of in-kind payments or

contributions such as food, clothing or housing from the basic wage
of a domestic worker. 17

15
For example, an Emoluments Attachment – or Garnishee Order, i.e. a court order obliging the employer
to deduct a stipulated amount and pay it over to a specified third party. This situation may arise where an
employee did not settle his or her debt and the creditor opted to collect the outstanding debt in this way.
16
Examples are Income Tax payable to the Receiver of Revenue or Social Security Fund contributions.
17
Item 6 of the Wage Order for Domestic Workers, published in GG No. 5638 (GN 258), dated 24
December 2014.

98
Unit 7 Statutory and common law duties of the employer

2.7 Other prohibitions

2.7.1 Levying of a fine

An employer is not allowed to levy a fine on an employee unless it is

authorised by statute or a collective agreement.

2.7.2 Purchasing goods from the employer

An employer is not allowed to require an employee to buy goods from a

shop owned by the employer or run on his/her/its behalf or use the
services rendered by the employer for reward. In case an employee is
allowed to buy goods supplied by the employer, the employer may not
charge more than the price paid by the employer for the goods plus any
reasonable costs incurred in acquiring the goods.

2.7.3 Reduction of working hours and remuneration

An employer is allowed, by written notice to the employee, to reduce an

employee’s agreed number of hours of work for a maximum period of
three months for operational reasons or other reasons recognised by law
and at the same time reduce the employee’s remuneration. The
remuneration may not be reduced by more than one-half of that
employee’s basic wage, unless allowed in terms of the contract of
employment or a collective agreement.

Such reduction of working hours may be extended for additional periods of

not longer than three months, by written agreement between the employer
and employee or the employee’s registered trade union, in the case of an
exclusive bargaining agent.

3. DUTY TO RECEIVE EMPLOYEE INTO SERVICE AND THE PROVISION

OF WORK


Section 1: Labour Act: Definitions and interpretations – definition of
“lock-out”

The employer is obliged to receive the employee into service, i.e.

allowing the employee to enter the workplace and to work. If not, it is
regarded as a serious breach of the employment contract. There are,

99
Unit 7 Statutory and common law duties of the employer

however, some lawful exceptions to this rule, for example, suspension and
the lawful lockout of employees. The suspension of an employee
suspected of some form of serious misconduct while the matter is being
investigated means that the employer is preventing the employee to work
and thus, the employer must still pay the employee the agreed
remuneration, unless certain exceptions apply 18. A situation where the
employer wants to deny its employees access to the workplace or
otherwise prevent them from working to induce them to accept an offer or
proposal in the process of collective bargaining, is known as a “lockout”;
the employer’s corresponding right of the employees’ right to strike.

Under common law, the general rule is that the employer has no duty to
provide the employee with tasks to perform, provided that the
employer pays the employee the agreed remuneration.

There are a few exceptions to this rule, namely where:

♦ The employee’s wage depends on the work provided by the

employer, for example where the employee is remunerated on a
commission basis or a share in the profits; or

♦ A person’s earning capacity is influenced by the publicity s/he gets

from working, for example an actor or actress; or

♦ The failure to provide work degrades his or her status; or

♦ The employee requires the work in order to maintain or develop

skills, for instance where the employer undertook to instruct and
train the employee in the course of his/her employment

4. OBSERVE PRESCRIBED HOURS OF WORK

The common law allows the parties to freely regulate the working hours. If
their agreement makes no specific provision for the hours of work, the
practice and custom of the specific industry, alternatively, the Labour Act
shall apply.

18
See further discussion on suspension in Unit 9 below.

100
Unit 7 Statutory and common law duties of the employer

4.1 Maximum daily and weekly hours of work


Section 8(1): Labour Act: Definitions relating to basic conditions of
employment – definitions of “security officer” & “week”
Section 16: Labour Act: Ordinary hours of work

An employer must not require an employee, except security officers;

employees working in emergency healthcare services or employees in a
class designated by the Minister, to work more than 45 (forty-five) hours
in any week. If an employee works five days or less per week, the
maximum number of hours of work allowed per day is 9 (nine). If an
employee works for more than five days in a week, the maximum hours
per day is 8 (eight). For the purposes of the calculation of time worked by
these employees, any meal interval shall be excluded.

In the case of security officers, employees working in emergency

healthcare services and those employees in a class designated by the
Minister, the maximum weekly hours is 60 (sixty). If such an employee
works five days or less per week, the maximum prescribed hours per day
is 12 (twelve), while the employee who works for more than five days per
week, can be expected to work a maximum of 10 (ten) hours per day. In
the case of these employees, any meal interval shall be regarded as time
worked for the purposes of determining the time worked.

4.2 Extension of working hours

The mentioned ordinary hours of work may be extended if the employee’s

duties include serving members of the public. In the latter instance, the
employee may be expected to work a maximum of 15 minutes extra per
day, subject to a maximum of 60 minutes in a week, after the completion
of the ordinary hours of work to enable the employee to continue serving
members of the public.

101
Unit 7 Statutory and common law duties of the employer

4.3 Continuous shifts


Section 8(1): Labour Act: Definitions relating to basic conditions of
employment – definition of “continuous shift”
Section 15: Labour Act: Declaration of continuous shifts
Section 16: Labour Act: Ordinary hours of work

The Minister may declare any operation to be a continuous operation and

permit the working of continuous shifts in respect of those operations. The
Minister may further prescribe any condition in respect of the shift,
including the working hours; however, it may never exceed eight hours per
shift.

4.4 Overtime


Section 8(1): Labour Act: Definitions relating to basic conditions of
employment – definition of “overtime” & “urgent work”
Section 17: Labour Act: Overtime

“Overtime” means time worked in excess of the hours an employee

ordinarily works on any ordinary day, but excludes any work done on a:
• Sunday, if it is not an ordinary working day for that employee; or
• Public holiday.

Overtime work is only done by agreement between the parties, unless the
employee is performing urgent work. Thus, if the employee agreed in the
contract of employment to work overtime if and when required, the
employee is not entitled to refuse if the need for overtime work arises at a
later stage.

The maximum allowable overtime is 3 (three) hours per day and 10 (ten)
hours per week. If the employee agrees, the employer may apply in
writing to the Permanent Secretary to increase these limits on overtime
work. Overtime worked on any day except on a Sunday or public holiday
must be paid at a rate of one and a half times the employee’s hourly

102
Unit 7 Statutory and common law duties of the employer

basic wage for every hour worked, while an employee who ordinarily
works on a Sunday or public holiday and works overtime on such a day,
must be remunerated at a rate of double the employee’s hourly basic
wage for every hour worked.

These provisions, except where it relates to payment of overtime, do not

apply to an employee who is performing “urgent work”. Urgent work is
defined as:

♦ Emergency work which, if not attended to immediately, could cause

harm to or endanger the life, personal safety or health of any
person or could cause serious damage to or destruction of
property; or
♦ Work connected with the arrival, departure, loading, unloading,
provisioning, fuelling or maintenance of a ship, aircraft, truck or
other heavy vehicle used to transport passengers, livestock or
perishable goods.

4.5 Meal intervals


Section 18: Labour Act: Meal intervals

An employee is entitled to a meal interval of at least one hour after

continuous work of five hours, unless shortened by agreement with the
employee (may not be shortened to less than 30 (thirty) minutes) and
written notice to the Permanent Secretary of such an agreement. The
employer may not require an employee to work during a meal interval. The
law specifically provides that a driver of a motor vehicle who is just
remaining in charge of the vehicle or its load during a meal interval is not
regarded as to be working during the interval. These rules do not apply to
a security officer; an employee who is engaged in urgent work or an
employee who works in a continuous shift.

103
Unit 7 Statutory and common law duties of the employer

4.6 Night work


Section 19: Labour Act: Night work

Special provision is made for “night work”, i.e. any work performed
between the hours of 20h00 and 07h00. An employee is entitled to an
additional payment of 6 (six) percent of that employee’s hourly basic
wage for any work performed between the hours of 20h00 and 07h00.

A pregnant woman is not allowed to perform any night work during the
period of eight weeks before her expected date of confinement or eight
weeks after her confinement. These periods may be extended if a medical
practitioner certifies that it is necessary for the health of the employee or
her child.

Unless regulated otherwise, a child under the age of 18 (eighteen) years

may also not perform night work.

4.7 Daily spread-over and weekly rest periods


Section 8(1): Labour Act: Definitions relating to basic conditions of
employment – definitions of “spread-over” & “weekly interval”
Section 20: Labour Act: Daily spread-over and weekly rest periods

An employer may not require or permit an employee to work a spread-

over of more than 12 (twelve) hours. A spread-over is defined as the
period from the time an employee first starts work in any 24 hour-cycle to
the time the employee finally stops working in that cycle.

An employee is entitled to a weekly interval of at least 36 (thirty-six)

consecutive hours. A weekly interval is defined as the interval between
the end of one ordinary working week and the start of the next.

The provisions regarding the daily spread-over and weekly intervals do not
apply to an employee who is performing urgent work.

104
Unit 7 Statutory and common law duties of the employer

SPREAD-OVER

An employee starts work in the morning at 08h00 and works until 13h00 when he is
allowed to go home until 19h00, when another work period commences and ends at
22h00 that evening. The spread-over in this instance amounts to 14 hrs, which is in
conflict with maximum period allowed in terms of the Labour Act, i.e.12 hrs. Note that a
spread-over does not mean the employee is actually working during that period.

4.8 Work on Sundays and public holidays


Section 21: Labour Act: Work on Sundays
Section 22: Labour Act: Public holidays

4.8.1 Employees who may be expected to work on Sundays and public

holidays

An employer may not require or permit an employee to perform work on a

Sunday or public holiday, unless:

♦ The employee agreed thereto and the employer applied in writing

to the Permanent Secretary to approve such work on a Sunday
and/or public holiday and such activity was subsequently approved
by the Permanent Secretary; or

♦ The employee is employed for the purposes of:

o Urgent work;
o Carrying on the business of a shop, hotel, boarding house or
hostel that lawfully operates on a Sunday or public holiday;
o Performing domestic service in a private household
(domestic worker);
o Health and social welfare care and residential facilities,
including hospitals, hospices, orphanages and old age
homes;
o Work on a farm required to be done on that day;
o Work in which continuous shifts are worked.

105
Unit 7 Statutory and common law duties of the employer

4.8.2 Payment for work performed on Sundays

An employee who does not normally work on a Sunday may agree

to receive payment at a rate of one and a half of the hourly basic
wages for each hour worked plus an equal period of time away
from work during the next working week. If not agreed otherwise,
such an employee must receive double the hourly basic wage for
each hour worked.

An employee who normally works on a Sunday must receive his or

her daily remuneration plus the hourly basic wage for each hour
worked.

4.8.3 Payment for work performed on public holidays

♦ If a public holiday falls on a day on which an employee would

ordinarily have worked (for example, a Wednesday, which is an
ordinary working day for most people), but such employee does not
work on the said day (due to the fact that it is a public holiday), the
employee must still receive his or her remuneration for that day.
However, if such employee failed to work, without a valid reason,
on either the day immediately before or the day after the public
holiday, the employer is entitled to deduct the remuneration
payable for both the public holiday and the day(s) of absence
without a valid reason.
♦ In the case of an employee who ordinarily works on a public
holiday, the employee must receive his or her daily remuneration
plus the hourly basic wage for each hour worked, unless the
employer agrees (upon request of the employee) to pay the
employee his or her daily remuneration plus one half of the hourly
basic wage for each hour worked and an equal period of time away
from work during the next working week.
♦ In the case of an employee who works on a public holiday that falls
on a day which is not an ordinary work day for that employee, the
employee must receive double his or her hourly basic wage for
each hour worked on the said public holiday.

The table below summarises the (minimum) stipulations for

payment for work performed on Sundays and public holidays
respectively.

106
Unit 7 Statutory and common law duties of the employer

Table 1

Type of employee Sunday Public holiday

Not normal work Double hourly basic wage or 1 Double hourly basic wage for
day ½ hourly basic wage plus each hour worked.
equal period of time away from
work during next working
week, if agreed.

Normal work day Daily remuneration plus hourly Daily remuneration plus hourly
basic wage for every hr basic wage for every hr
worked. worked; or daily remuneration
plus ½ of hourly basic wage
plus equal period of time away
from work during next working
week, if agreed.

4.8.4 Work done partly on a Sunday or public holiday

For the purposes of the calculation of payment for work performed partly
on a Sunday or public holiday and partly on any other day, the law
provides that all the hours of the shift are deemed to have been worked on
the day on which the majority of hours of the shift fall. This means that if
the majority of the hours worked on a shift extends into or begin on a
Sunday or public holiday, all the hours of that shift are deemed to have
been worked on that Sunday or public holiday and the rules of payment on
that specific day shall apply, and vice versa.

5. PROVIDE LEAVE

5.1 Annual leave


Section 8(1): Labour Act: Definitions relating to basic conditions of
employment – definitions of “annual leave cycle”
Section 23: Labour Act: Annual leave

Every employee is entitled to at least four consecutive weeks’ annual

leave, i.e. after a period of 12 (twelve) consecutive months’ employment,
with full remuneration. The leave period depends on the number of days

107
Unit 7 Statutory and common law duties of the employer

an employee works in an ordinary work week. The table below shows the
method of calculation 19. You will note that the number of days worked per
week is multiplied by 4 in each instance.

Table 2

Number of days in ordinary work week Annual leave entitlement in working

days
6 24
5 20
4 16
3 12
2 8
1 4

An ordinary work week is defined as the number of days an employee

ordinarily works per week. In a situation where an employee does not
ordinarily work a fixed number of days per week, the annual leave is
calculated on the average number of days worked per week over a period
of 12 (twelve) months prior to the commencement of a new annual leave
cycle, multiplied by four.

CALCULATION: NO FIXED NUMBER OF WORKING DAYS PER WEEK

If an employee worked 4 days and 2 days respectively every alternative week for the past
12 (twelve) months, s/he does not work a fixed number of days per week. Therefore, on
average, this employee worked 3 days per week. The employee will thus be entitled to 12
working days of annual leave.

The number of days of annual leave may be reduced by the number of

days during the annual leave cycle which, on request of the employee, the
employer granted to the employee occasional leave on full remuneration.
If a public holiday falls on an ordinary working day during an employee’s
annual leave period, the employer must grant the employee an additional
day of paid leave for that day.

The employer may determine when annual is to be taken, provided that it

must be granted not later than four months after the end of the annual
leave cycle, or, if the employee agrees in writing, this four months period
may be extended to a maximum of six months. An employer is further not
allowed to require or permit an employee to take annual leave during sick
leave, compassionate leave or maternity leave periods.

Remuneration for the annual leave period is payable according to the

employee’s regular pay schedule if paid by direct deposit. In any other

19
Section 23(2) of the Labour Act.

108
Unit 7 Statutory and common law duties of the employer

case it is payable not later than the last working day before the
commencement of the annual leave or, if the employee requests such
extension in writing, not later than the first pay day after the end of the
leave period.

Irrespective of whether or not an employee requests or agrees thereto in

writing, an employer is not allowed to pay an employee an amount of
money in substitution of annual leave to which an employee is entitled,
except for payment of leave due upon termination of employment, subject
to certain provisions. The detail of these provisions will be discussed in the
Labour Law 1B guide as part of the discussion on termination of
employment.

If a domestic worker accompanies his or her employer on vacation for the

purposes of rendering services to the household, the time spent rendering
those services must be treated as working time during which the
provisions of the Labour Act and the Wage Order shall still apply. 20

5.2 Sick leave


Section 1: Labour Act: Definitions and interpretations – definition of
“medical practitioner”
Section 8(1): Labour Act: Definitions relating to basic conditions of
employment – definitions of “incapacity”, “sick leave” & “sick leave
cycle”
Section 24: Labour Act: Sick leave

“Sick leave” is defined as any period during which an employee is unable

to work due to incapacity, while “incapacity” is again defined as an inability
to work owing to any sickness or injury.

An employee who ordinarily works 5 (five) days during a week, is entitled

to a minimum of 30 (thirty) working days of sick leave in a period of 36
(thirty-six) months of employment (also referred to as the sick leave
cycle), while an employee who ordinarily works 6 (six) days per week is
entitled to 36 (thirty-six) working days during the same cycle. The sick
leave entitlement of an employee who works less than 5 (five) days per

20
Item 8 of the Wage Order for Domestic Workers, published in GG No. 5638 (GN 258), dated 24
December 2014.

109
Unit 7 Statutory and common law duties of the employer

week, will be calculated on a pro rata basis. During the first year of
employment an employee is entitled to one day’s sick leave for every 26
days worked. As in the case of annual leave, if an employee does not
work a fixed number of days per week, the average number of days
worked per week must be calculated over the previous 12 (twelve)
months.

Any sick leave period is fully remunerated, unless one or more of the
following exceptions apply:

♦ If the employee has been absent from work for more than two
consecutive days and failed to produce a medical certificate by a
medical practitioner or any other evidence of proof of illness as
may be prescribed;

♦ The balance, if any, if the employee receives (or is entitled to

receive) sick leave payment from one or more of the following
sources:

o In terms of the Employees’ Compensation Act 30 of 1941 21;

o From a fund or organisation designated by the employee
and to which the employer makes contributions of at least
equal of that of the employee;
o In terms of any other legislation.

Sick leave not used during the sick leave cycle lapses at the end of the
sick leave cycle and does not entitle the employee to any additional
remuneration upon termination of employment.

5.3 Compassionate leave


Section 1: Labour Act: Definitions and interpretation – definition of
“spouse”
Section 25: Labour Act: Compassionate leave

21
The objective of the Employees’ Compensation Act is to compensate employees for disablement caused
by work related accidents or diseases contracted out of, and in the course of their employment or for death
resulting from such accidents and diseases. Only certain employees are covered by the Accident Fund
established in terms of the said legislation. The provisions of the aforesaid Act will be discussed in more
detail in the Labour Law 1B guide.

110
Unit 7 Statutory and common law duties of the employer

An employee is entitled to 5 (five) working days compassionate leave

during each period of 12 (twelve) months of continuous employment with
full remuneration. In order to qualify for compassionate leave there must
be a death or serious illness in the family. The concept “serious illness” is
not defined in the Labour Act, but please note of the definition of “family”
in terms of the Labour Act 22, as augmented by the definition of a
“spouse” 23.

Family means a:

♦ Child (including a child adopted in terms of any law, custom or

tradition);
♦ Spouse (defined as a partner in a civil marriage or a customary law
union or other union recognised as a marriage in terms of any
religion or custom) ; or
♦ Parent, grandparent, brother or sister of the employee; or
♦ Father-in-law or mother-in-law of the employee

Similar to sick leave, if not used, customary law lapses at the end of the
period and the employee will also not be entitled to any additional
remuneration on termination of employment.

5.4 Maternity leave


Section 26: Labour Act: Maternity leave
Section 27: Labour Act: Extended maternity leave

In order to qualify for maternity leave, a female employee must have

completed 6 (six) months of continuous service in the employment of an
employer. She is entitled to at least 12 (twelve) weeks of maternity leave,
i.e. 4 (four) weeks before her expected date of confinement, as certified by
a medical practitioner24, until her actual date of confinement and a further
period of 8 (eight) weeks after her actual date of confinement. In the event
that the confinement occurred less than four weeks after the

22
Section 25(5)
23
Section 1
24
“Medical practitioner” (Section 1: Definitions and interpretations: Labour Act) includes not only a person
registered as such in terms of the Medical and Dental Professions Act 10 of 2004, but also a person who is
registered as a nurse or midwife in terms of the Nursing Act 8 of 2004.

111
Unit 7 Statutory and common law duties of the employer

commencement of her maternity leave, the law provides that she is

entitled to additional time after the actual date of confinement in order to
bring her total maternity leave period up to 12 weeks.

If a medical practitioner certifies that, due to complications arising from

pregnancy, birth or congenital conditions, it is necessary for the health of
the employee or the employee’s child, the employer must grant the
employee extended maternity leave of up to a maximum equal to the
greater of one month or the amount of accrued sick leave that the
employee has available at that time. In essence, if it is necessary for the
employee’s health, an extended maternity leave period of at least one
month is available, to be taken either before or after the ordinary maternity
leave period. The period of extended maternity leave must run
immediately before or after the ordinary maternity leave period.

During the period of maternity leave, the provisions of the contract of

employment shall remain in force and the employee is entitled to the
remuneration payable except the basic wage. In essence, this means that
the employer will continue to pay all allowances such as housing, motor
vehicle, transport, professional allowances and payments in respect of
pension, annuity and medical benefits or insurance. The employee will be
entitled to claim such portion of the basic wage, as may be prescribed in
terms of the Social Security Act 34 of 1994, from the Social Security
Commission.

Section 26 of the Labour Act also provides job security to an employee

during the period that she is on maternity leave. An employer is not
allowed to dismiss such an employee either during her maternity leave or
at the expiry of such leave for reasons of collective termination or
redundancy or on any grounds arising from her pregnancy, delivery, or her
resulting family status or responsibility, unless the employer has offered
the employee comparable alternative employment and she has
unreasonably refused to accept that offer

112
Unit 7 Statutory and common law duties of the employer

6. PROVIDE ACCOMMODATION


Section 28: Labour Act: Provision of accommodation

6.1 General

If it is required from an employee to live at the place of employment or to

reside on any premises owned or leased by the employer, the employer is
obliged to provide the employee with adequate housing, sanitary and
water facilities.

6.2 Employees living on agricultural land

If such an employee lives on agricultural land, the duty (as set out in 6.1
above) is extended to the employee’s dependants. If available, electricity
must also be supplied. 25 A “dependant” is defined as the spouse and
dependant children of the employee or of the spouse.

6.3 Live-in domestic workers 26

When a domestic worker is required to live at the place of employment,

the employer must provide living quarters, without charge, to the worker
with minimum conditions such as a lockable room with a key, good
ventilation, electricity (if available to the household), a bed and mattress,
heat (if available in the household) and access to clean drinking water,
toilet and bathing facilities.

The employee is entitled to receive visitors upon reasonable notice and at

reasonable intervals or hours, in consultation with the employer.

6.4 Notice to vacate the premises

If the employer terminates the contract of employment of an employee

who is required to live at the place of employment, the employer is obliged

25
In terms of a collective agreement applicable to the agricultural sector.
26
Item 10 of the Wage Order for Domestic Workers, published in GG No. 5638 (GN 258), dated 24
December 2014.

113
Unit 7 Statutory and common law duties of the employer

to give the employee 3 (three) months’ written notice to vacate if it is

agricultural land and at least 1 (one) month’s notice in the case of all other
employees.

In a situation where the employee referred a dispute alleging unfair

dismissal to the Labour Commissioner within 30 (thirty) days following the
termination of employment, the employer is not allowed to require the
employee to vacate the premises until the dispute is resolved or disposed
of.

7. PROVIDE SAFE WORKING CONDITIONS


Section 1: Labour Act: Definitions and interpretations – definition of
“premises”
Section 39: Labour Act: Employer duties to employees
Section 40: Labour Act: Employer’s duties to persons other than
employees
Section 43: Labour Act: Election of health and safety representatives
Section 44: Labour Act: Rights and powers of a health and safety
representative
Section 45: Labour Act: Duties to provide information
GN No. 156 Labour Act 6 of 1992: Regulations relating to the health
and safety of employees at work (published in GG 1617, dated 1
August 1997

7.1 General

In terms of the common law, employers are obliged to provide their

employees with reasonably safe and healthy working conditions. This duty
is now regulated in terms of Chapter 4 [Health, safety and welfare of
employees] of the Labour Act, imposing certain specified duties upon both
employers and employees. The duties of the employer, or person in
charge of premises where employees are employed, include the duty
(without any charge to the employees) to:

♦ Provide a working environment that is safe; without risk to the

health of the employees and has adequate facilities and
arrangements for the welfare of the employees;

114
Unit 7 Statutory and common law duties of the employer

♦ Ensure that the organisation of work does not adversely affect the
safety or health of employees;
♦ Take any prescribed steps to ensure the safety, health and welfare
of employees at work;
♦ Provide and maintain plant, machinery, systems and processes of
work that are safe and without risk to the health of employees;
♦ Provide employees with adequate personal protective clothing and
equipment if reasonably necessary;
♦ Provide employees with the necessary information, instructions,
training and supervision to work safely and without a risk to their
health;
♦ Provide and maintain safe entry to and exit from places of work;
♦ Ensure that the use, handling, storage or transport of articles or
substances is safe and without any risk to the health of employees;

The employer has to report to a labour inspector whenever there is an

accident or prescribed disease contracted at any place where the
employer’s employees work.

If an accident occurred at the workplace and an employee is injured, the

necessary forms should also be completed in line with the requirements of
the Social Security Commission by the employer and the medical
practitioner treating the employee.

7.2 When will an employee be entitled to claim compensation from the

employer?

Should failure to ensure the safety and health of the employee lead to
injury, the contracting of a disease or death, the employer may be held
delictually liable. Before the employee (or his or her family) will be able to
claim compensation from the employer, the following will have to be
proved:

♦ The employer or somebody else for whose conduct the employer is

liable (vicarious liability) must have committed an act or failed to act
(an omission); and

♦ The act or omission must be unlawful; and

♦ The act or omission must be the cause of the personal injury or

damage; and

♦ Damage or personal injury must in fact have resulted.

115
Unit 7 Statutory and common law duties of the employer

At present, the Employees’ Compensation Act 30 of 1941 (as amended)

provides compensation payable to certain employees (or their families), as
prescribed, who get injured, contract a disease or die in the course of their
duties. If this Act is applicable to a particular employee, claims are not
instituted against the employer personally. The Employees’ Compensation
Act will be discussed in more detail in the Labour Law 1B guide.

7.3 The employee’s right to leave an unsafe and/or unhealthy workplace

If an employee has reasonable cause to believe that it is neither safe nor

healthy to continue working, the employee may leave that place until
effective measures have been taken. However, the employee must
immediately inform the employer of such belief and the basis thereof. In
such circumstances, the employee is still entitled to the same conditions of
service and to receive the same remuneration during the period of
absence.

The doctrine of volenti non fit iniuria 27 shall apply in a situation where the
employee has knowledge of a hazardous state of affairs and realises the
nature thereof, but still subjects him- or herself voluntarily to this hazard. It
is regarded as if the employee consented to any harm that might befall
him or her and the employer could thus not be held liable in these
circumstances.

7.4 Duty to provide information to health and safety representatives

If there are more than 10 (ten) employees in a workplace, they have the
right to elect a health and safety representative from among themselves.
The main functions of the health and safety representative are to collect
information on safety, health and welfare of employees; to inspect the
workplaces and to investigate and report on the causes of accidents and
diseases at work.

The employer has the duty, inter alia, to provide the health and safety
representative with sufficient information in order to perform these
functions and to consult with him or her on any policy on health, safety
and welfare that may apply to the employees represented.

27
This means “to a willing person, injury is not done”.

116
Unit 7 Statutory and common law duties of the employer

7.5 Health and safety requirements for domestic workers 28

The employer must provide the domestic worker with a uniform and
personal protective clothing, without charge. The uniform and protective
clothing must be replaced at reasonable intervals.
Upon hiring of a domestic worker, it is required to provide a health and
safety induction to the worker, without charge. The induction must at least
include training on possible hazards, such as potentially dangerous
equipment and toxic substances; proper use and maintenance of personal
protective equipment; and safe work techniques relating to domestic work.

7.6 Employer’s duties to persons other than employees

Every employer also has a duty to conduct its business operations in such
a manner that persons who are not employees of that employer are not
exposed to the risk of their safety or health. The Minister may, by
regulation, require the employer to inform persons who are not employees
of that employer of any risk to their safety or health that might arise from
the conduct of that employer’s business.

8. MISCELLANEOUS DUTIES

8.1 Provide transportation to employee on termination of employment


Section 28: Labour Act: Provision of accommodation
Section 36: Labour Act: Transportation on termination of
employment

If an employee is dismissed during the first 12 (twelve) months of

employment at any place other than where the employee was recruited,
the employer must either transport the employee to the place of
recruitment or pay the employee an amount equal to the costs of that
transport, unless the employee unreasonably refuses to be reinstated.

28
Item 11 of the Wage Order for Domestic Workers, published in GG No. 5638 (GN 258), dated 24
December 2014.

117
Unit 7 Statutory and common law duties of the employer

8.2 Provide a transport allowance to a live-out domestic worker 29

A live-out domestic worker is entitled to receive a transport allowance for

travel to and from work for each day of work, where public transport is
available, unless the employer provides transport. The transport allowance
must be equal to the costs of a round-trip public transport.

8.3 Provide food

An employer must provide suitable food in reasonable quantities to meet

the reasonable needs of an employee who is a live-in -, or a live-out
domestic worker who qualifies for a meal interval (in terms of section 18 of
the Labour Act). 30

Employees in the agricultural sector should be allowed to keep livestock

and to cultivate land to meet the reasonable needs of the employee and
his or her dependants; or the employer must provide the employee with
food or rations to meet such needs; or pay the employee an additional
allowance. 31

8.4 Provide employee with a certificate of employment on termination of

employment


Section 37(5) & (6): Labour Act: Payment on termination and
certificates of employment

An employer must provide an employee who leaves its service with a

certificate of employment, irrespective of the reason for termination. The
certificate of employment must contain the following particulars:

♦ Employee’s full name;

♦ Name and address of employer;
♦ Description of industry in which the employer is engaged;

29
Item 7 of the Wage Order for Domestic Workers, published in GG No. 5638 (GN 258), dated 24
December 2014.
30
Item 7 of the Wage Order for Domestic Workers, published in GG No. 5638 (GN 258), dated 24
December 2014.
31
The minimum additional allowance is currently determined in terms of a collective agreement applicable
to the agricultural sector.

118
Unit 7 Statutory and common law duties of the employer

♦ Date of commencement and date of termination of employment;

♦ Employee’s job description;
♦ Remuneration at date of termination;
♦ If employee requests, the reason for termination.

It is important to note that the reason for termination may not be stated,
unless the employee specifically requested the employer to mention it on
the certificate of employment.

An employer is entitled, but not obliged, to provide an employee with a

testimonial or other certificate of good character.

8.5 Duty to keep records


Section 130: Labour Act: Records and returns

Every employer has the duty to keep a record of every current employee
for the most recent 5 (five) years and retain the record of every employee
who left the services of the employer for a period of 5 (five) years after the
termination of the employment contract. This record must contain certain
particulars, as prescribed in terms of section 130(1) of the Labour Act.

8.6 Allow time off to health and safety representatives and workplace
union representatives


Section 43 (4): Labour Act: Election of health and safety
representatives
Section 67(5): Labour Act: Workplace union representatives

The employer is obliged to grant each health and safety representative

and each workplace union representative 32 respectively time off during
working hours without loss of pay in order to perform the functions of the

32
The functions of workplace union representatives shall be discussed in more detail in the Labour Law 1B
guide.

119
Unit 7 Statutory and common law duties of the employer

said offices and further grant such representative reasonable leave of

absence to attend meetings or training courses.

8.7 Duties in terms of the Vocational Education and Training Act 1 of

2008


Section 3: Vocational Education and Training Act: Objects of Act
PART VI: VOCATIONAL EDUCATION AND TRAINING LEVY:
Vocational Education and Training Act

The aforementioned Act introduces the vocational education and training

levy, payable by employers. The purpose of the levy is to facilitate and
encourage vocational education and training, in line with the objects of the
Act, which include, among others, the development of skills and
competencies aligned with the labour market, aimed at productive work
and increased standards of living.

The levy will be imposed on the payroll of every employer with an annual
payroll of N$ 1 million or more. The levy rate is 1% of the employer’s total
annual payroll. Payroll means the total remuneration paid or payable by an
employer to its employees during any financial year. Remuneration bears
the same definition as that contained in the Labour Act, while a financial
year means the period 1 April to 31 March, commencing on 1 April 2014.

The following employers are exempted from payment of the levy:

♦ The State
♦ Regional Councils
♦ Charitable organizations
♦ Public and not for gain educational institutions
♦ Faith based organizations (whether or not supported wholly or partially
by grants from Government)

120
Unit 7 Statutory and common law duties of the employer

8.8 Duties in terms of the Employment Services Act 8 of 2011


Section 2: Employment Services Act: Establishment of Service
Section 13: Employment Services Act: Employment Services Bureau

Section 16: Employment Services Act: Designated employers to

report vacancies and new positions
Section 17: Employment Services Act: Designated employers to
provide information to the bureau

The abovementioned Act provides, among others, for the establishment of

the National Employment Service and impose reporting and other
obligations on employers and other institutions. The National Employment
Service consists of the Employment Services Board and the Employment
Services Bureau (hereinafter referred to as the ESB).

Since the functions of the ESB include the registering of job-seekers and
vacancies in the public and private sector, designated employers 33 are
required to report job vacancies or new positions, before they are filled, to
the ESB in the Ministry of Labour, Industrial Relations and Employment
Creation. 34

For advertised positions, the employer must report each vacancy at least
14 (fourteen) calendar days before the closing date of the applications,
while non-advertised positions must be reported at least 14 (fourteen)
calendar days before the intended filling of the vacancy. In the event that
the bureau referred job seekers to a designated employer, such employer
may not fill the vacancy, unless it has considered in good faith the job-
seekers referred. The employer is further obliged to report to the ESB on
whether or not it appointed any of the referred job seekers and, if not, to
provide reasons therefore, including other information.

A designated employer must keep a record of vacancies and related items

and must submit a full profile of its establishment to the ESB on an annual
basis.

33
The Minister identified each employer employing 25 or more employees as a designated employer (GN
202 of 2015, published in Government Gazette No. 5829 of 15 September 2015)
34
The relevant part of the Act (Part 3) came into operation on 24 August 2015 ( GN 201 of 2015, published
in Government Gazette No. 5829 of 15 September 2015)

121
Unit 8 Statutory and common law duties of the employee

Unit 8

Statutory and common law duties of the employee

Learning objectives

At the end of this unit, you should be able to:

• List the various statutory and common law duties of the employee
• Discuss the duty of the employee to provide his or her services to the
employer
• Evaluate the role of testimonials submitted by an applicant for employment
• Analyse the duty of the employee to devote his or her energy and skills to
further the employer’s business interests
• Discuss whether an employee is allowed to earn an extra income during
his/her free time
• Explain the duty of the employee to act in good faith by means of practical
examples
• Give some examples of misconduct at the workplace
• Apply the contents of this unit to solve problems

Additional reading
rd
Basson, A. et al. (2002). Essential Labour Law: Individual Labour Law (Vol. 1 3 ed.). Houghton:
Labour Law Publications.

Bendix, S. (2000). The Basics of Labour Relations. Cape Town: Juta Law.

De Beer, P.J. (Ed.) (1998). Labour Court Reports (1993-mid 1998), Namibian Labour Law
Publication (Vol. 1). Windhoek: SDU Seminars.

De Beer, P.J. (Ed.) (2002). Labour Court Reports (1998-mid 2002), Namibian Labour Law
Publication (Vol. 2). Windhoek: ERC.

De Beer, P.J. (Ed.) (2004). Labour Court Reports (2002-January 2004), Namibian Labour Law
Publication (Vol. 4). Windhoek: Ernest & Young.

De Beer, P.J. (Ed.) (2013). Namibian Labour Law Publication (Vol. 7) NLLP 2013(7). Windhoek:
De Beer Law Chambers.

De Beer, P.J. (Ed.) (2015). Labour Act Compilation, Namibian Labour Law Publication (Vol. 9).
Windhoek: De Beer Law Chambers.

122
Unit 8 Statutory and common law duties of the employee

th
Du Bois, F (Ed.) (2007). Wille’s Principles of South African Law (9 ed.). Cape Town: Juta & Co.
th
Du Plessis, J.V. & Fouché, M.A. (2012). A practical guide to Labour Law (7 ed.). Durban:
Butterworths.
th
Finnemore, M. (1997). Introduction to Labour Relations in South Africa (5 ed.). Durban:
Butterworths.

Govindjee, A. et al. (2007). Commercial law 2 – fresh perspectives. Cape Town: Pearson
Education and Prentice Hall.

Grogan, J. (2002). Dismissal. Cape Town: Juta Law.

nd
Grogan J. (2007). Dismissal, Discrimination & Unfair Labour Practices (2 ed). Cape Town: Juta
Law.
Grogan J. (2010): Employment Rights. Cape Town: Juta Law.
th
Grogan, J. (2009): Workplace Law (10 ed.). Cape Town: Juta Law.

Landis, H. & Grossett, L. (2005): Employment and the Law – A Practical Guide for the Workplace
nd
(2 ed.) Cape Town: Juta & Co Ltd.

Le Roux, P.A.K. & Van Niekerk, A. (1994): The South African Law of Unfair Dismissal. Cape
Town: Juta Law.

Parker, C (2012). Labour Law in Namibia. Windhoek: University of Namibia Press.

th
Venter, R & Levy, A (Eds.) (2014): Labour Relations in South Africa (5 ed.). Cape Town: Oxford
University Press Southern Africa (Pty) Ltd.

Labour Act 11 of 2007

Website: www.namiblii.org

Website: www.lac.org.na

Website: www.saflii.org

1. INTRODUCTION

Since the employment relationship is reciprocal, both the employer and

employee have certain duties in terms of this relationship. As discussed
before, the agreement between the parties no longer forms the exclusive
source to determine the rights and duties of the respective parties, as the
employment relationship is to a considerable extent regulated by statute.

In this study unit we focus on the various duties of the employee, derived
from both the statutory and common law applicable in Namibia. When it
comes to the duties of the employee, the provisions of the contract of
employment and the common law play a much more important role, since
statutory regulation is limited in this respect.

123
Unit 8 Statutory and common law duties of the employee

2. PROVIDE SERVICES


Section 1: Labour Act: Definitions and interpretations – definition of
“strike”
Article 21(1)(f): NC: Fundamental Freedoms
Section 42: Labour Act: Employee’s right to leave dangerous place
of work
Section 74: Labour Act: Right to strike or lock-out

The main obligation of an employee is to place his or her personal service

at the disposal of the employer in the manner and at the times agreed to
by the parties as from the agreed date. The issues of maximum hours of
work; overtime; meal intervals; night work; daily spread-over and weekly
rest periods; work on Sundays and public holidays and leave entitlement
are regulated by the Labour Act (as discussed in Unit 7 of this guide).

As discussed before, the employer cannot force the employee to perform

work other than that agreed upon, i.e. as contained in the terms of the
contract of employment. Although the employer may not unilaterally
change the job description of the employee, the type of work may be
changed, among others, by agreement between the parties. In practice,
this is often the case in the event of promotion or transfer of the employee.

Failure to render service can come in many forms such as desertion,

absenteeism and unpunctuality. In such instances, the employer has the
right to deduct an amount proportional to the absence and/or take
disciplinary action.

As you know, an employee has the right to leave a place of work until
effective measures have been taken if s/he has reasonable cause to
believe that it is neither safe nor healthy to continue work, without any
change in remuneration or conditions of service.

In addition hereto, employees have the right to strike, i.e. withhold labour
in order to compel their employer, any other employer or an employers’
organisation to which the employer belongs, to accept, modify or abandon
any demand that may form the subject matter of a dispute of interest. 1 The
right to withhold labour is also guaranteed in Article 21(1)(f) of the
Namibian Constitution.

1
Further detail on the right to strike will follow in the Labour Law 1B guide.

124
Unit 8 Statutory and common law duties of the employee

An employer is not obliged to remunerate an employee for services that

the employee does not render during a strike. We further wish to remind
you of the common law rule of “no pay, no work”, as discussed in Unit 7 of
this guide.

The Court case discussed below aptly illustrates the duty of an employee
to provide his or her services to the employer.

DUTY TO PROVIDE SERVICES

2
Rosh Pinah Zinc Corporation (Pty) Ltd v Naukushu

Employee was employed for nine years as an operator in the mining division. During the
period late August to early September 2012, he went on leave without permission or
authority, as his application for vacation leave to attend a wedding of his niece was not
granted. The employee knew that his leave has not been approved, but nevertheless
went home without permission. On his return, he was charged with misconduct of being
absent from work for 5 days consecutively, found guilty and dismissed from employment.
His internal appeal against the conviction and dismissal was unsuccessful. The employee
then referred the matter to the Labour Commissioner for arbitration. The arbitrator set
aside the finding of the disciplinary hearing and issued an award in favour of the
employee.

On appeal, the Court confirmed that the dismissal of the employee at the disciplinary
hearing was substantively fair and the appeal was upheld. The Court also observed that
an employee has a duty, not only to render personal services to his employer while the
contract of employment is in force, but also obliged by the contract not to be absent from
work without a lawful excuse.

3. PERFORM SERVICES DILIGENTLY AND COMPETENTLY

Employees are deemed by law to guarantee implicitly that they are

capable of performing the tasks they agreed to perform. The competency
of an employee is usually investigated before appointment. The employer
can either submit the applicant to tests or rely on testimonials. If the
employer relies on testimonials and the employee proves to be far less
competent, there is doubt about the accuracy of the testimonials and the
employee may be dismissed for incompetency. The employer cannot be
challenged for the fact that he had not used due diligence in confirming
the testimonials or subjecting the applicant to competency tests.

2
(LCA 30/2013) [2014] NALCMD 12 (7 March 2014) - unreported

125
Unit 8 Statutory and common law duties of the employee

Nevertheless, a single act of incompetence is normally not sufficient to

justify a dismissal. The employer has to give such an employee an
opportunity to correct the deficiency and the employer must give him or
her proper orders and possibly also training, unless circumstances
indicate that it would be unreasonable to the employer to do so. A further
discussion on dismissals based on poor performance (or incompetence)
shall follow in the Labour Law 1B guide.

DISMISSAL FOR POOR WORK PERFORMANCE / INCOMPETENCE

3
In Goagoseb v Arechenab Fishing & Development Co. (Pty) Ltd. the employee was
employed as an administration manager. His work was of a poor quality and he could not
cope with his responsibilities. Although a clerk was given to him to assist, he could still
not meet the deadlines and the standard of his work did not improve. He was thus given
an opportunity to improve the quality of his work. Despite the assistance he received, he
could still not cope and was offered another position with a reduced salary, which he
rejected, subsequent whereto his employment was terminated. The Court found that the
offer to retain the employee at a reduced salary was a genuine attempt to accommodate
him.

4. BE RESPECTFUL AND OBEY ALL LAWFUL AND REASONABLE

INSTRUCTIONS OF THE EMPLOYER

By entering into a contract of employment, an employee is agreeing to

place his or her labour under the authority, control and supervision of the
employer. The employee’s duty to obey therefore lies at the heart of any
employment relationship. Insubordination is behaviour that challenges the
authority of the employer and includes various types and forms of
disobedient behaviour. Insolence, on the other hand incorporates
rudeness and disrespect.

The employee’s duty of obedience only applies to work-related orders

during working hours which are lawful and reasonable, does not infringe
on the employee’s dignity and does not subject him or her to personal
dangers not normally connected with the performance of his or her duties.

Serious insubordination or insolence amounts to breach of contract and

the employer is entitled to terminate the contract of employment even
when it is the first offence of this nature.

3
NLLP 1998(1) 142 NLC

126
Unit 8 Statutory and common law duties of the employee

The Court cases discussed below illustrated how serious the Namibian
Courts view the transgressions of insubordination and insolence.

DISMISSAL FOR INSUBORDINATION

4
In Links v Cross Country Carriers at 297 the Court associated itself with the following
passages:

“Subordination is described in The South African Law of Unfair Dismissal by Le Roux &
Van Niekerk at p. 139 as follows:

‘Subordination is the hallmark of the contract of employment. The subordinate

relationship in which the employee stands to the employer gives rise to the obligations to
obey the lawful and reasonable orders of the employer, superior employees, and the
employer’s customers.’

In the same work the authors continued by stating that:

‘Dismissal is generally justified only in cases of gross insubordination. In other instances,

prior warnings should be issued, the purpose of which is to attempt to correct the
behaviour of the employee.’”
5
Namibia Tourism Board v Kauapirura-Angula

The Court held that the employer was entitled to dismiss the employee for
insubordination, assault and use of abusive language.

5. PROMOTE THE EMPLOYER’S BUSINESS AND ACT IN GOOD FAITH

The relationship between the employer and employee is in essence one of

trust and confidence and conduct not consistent therewith entitles the
innocent party to terminate the contract. The employee’s duty to act in
good faith is fiduciary in nature, i.e. an employee may not place
him/herself in a position where his or her own interests conflict with those
of his or her employers and may not acquire interests or benefits without
the knowledge of his or her employer.

For an easier understanding of this duty of the employee, we provide you

with a number of specific examples:

4
NLLP 2002(2) 291 NLC
5
2009 (1) NR 185 (LC)

127
Unit 8 Statutory and common law duties of the employee

5.1 Promoting the employer’s business

Employees have to devote their energies and skills to further their

employer’s business interests and must devote all their ordinary working
hours to the employer’s business. Employees may not, without the
employer’s permission, simultaneously work for another employer during
the hours that they are contractually obliged to devote to the employer’s
business.

The employee is also not allowed to work for another employer at the
same time if it is in conflict with the employer’s interests, for example,
selling the products of a competing employer. Employees who secretly
compete with their employer’s business for their own account act in
breach of their fiduciary duty. This does not mean that the employee may
not do part time work of the same nature after hours, provided that it is not
in direct competition with the employer’s business and it is not expressly
prohibited in terms of the contract of employment.

An employee is often trained in the course of his/her duties and may

acquire knowledge, experience and insight. According to public policy, the
employee may use this knowledge, experience and insight for his or her
own benefit or even the benefit of a new employer, after the contract of
service has expired. This may happen even if s/he is in competition with
his or her previous employer. However, for the protection of the trade
secrets of the employer, the right of an employee to compete with his or
her employer after the termination of the contract of employment can be
restricted by a “restraint of trade” clause in the contract, provided that it
could be considered as unfair competition and such limitation is
reasonable (see discussion in Unit 6 of this guide).

EMPLOYEE DOING PRIVATE WORK IN HIS/HER FREE TIME

If a motor mechanic repairs cars in his free time and does not take business away from
his employer, he acts within the scope of his rights (if not expressly prohibited to do so in
terms of the contract of employment).

5.2 Confidential information

Most employees acquire confidential information regarding the nature of

the undertaking of the employer during the course of employment. If an
employee abuses such information for his/her personal benefit, the
employee would breach the duty of good faith owing to the employer.

128
Unit 8 Statutory and common law duties of the employee

In a situation where the employee stands to gain financially from dealings

between the employer and a company in which the employee has an
interest, the employee must reveal such interest, failing which, it will be
considered as a breach of the employee’s duty to act in good faith. It may
also constitute a breach of fiduciary duties if the employee were to engage
in undisclosed dealings on behalf of his or her employer with a business
owned by his/her wife or her husband.

5.3 Dishonesty

Dishonesty with regards to the employer’s affairs will also be a breach of

the duty of good faith. Some examples are fraudulent misrepresentation,
falsification of documentation, presenting false evidence, the use of the
employer’s property without permission for private purposes (fair use
excluded) such as the computer, telephone, copy machine, vehicle, etc.

Dishonesty outside the course of duties will only become relevant if it

renders the employee unfit for his or her position. There is no obligation on
an employee to disclose prejudicial information relating to his or her past
before entering into a contract of service unless s/he is specifically asked
to do so or where the past misconduct could render such employee unfit
for the position offered.

PAST MISCONDUCT

A school teacher who has been convicted of child molestation (for example, rape or
indecent assault) must certainly reveal this fact if he is applying for a job as teacher,
however, it would not be necessary (unless he was specifically asked about a possible
criminal record) if the same teacher applies for a job as accountant at a bank.

5.4 Theft and unauthorised possession of the employer’s property

Theft or misappropriation of property belonging to the employer can be

defined as the unauthorised possession of or removal of the employer’s
property with the intention of permanently depriving the employer of it. The
primary consideration is the effect on the employment relationship, rather
than the value of the goods misappropriated. Theft is regarded as one of
the most serious forms of misconduct, usually justifying dismissal at first
instance.

129
Unit 8 Statutory and common law duties of the employee

EMPLOYEE’S DUTY TO ACT IN GOOD FAITH

6
The Court observed in Foodcon (Pty) Ltd v Schwartz at 184 as follows:

“The maintenance of confidence in an employer/employee relationship is so vital that it

must enjoy an abiding nurturing. A violation of such relationship will normally be visited
with severe sanctions at the hands of an employer, not to mention dismissal.”

And further at 185:

“Any form of dishonesty tends to undermine the trust in an employer/employee

relationship.”
7
In Model Pick ‘n Pay Family Supermarket v Mwaala at 206 the Court observed –

“Theft (or dishonesty) is not to be taken lightly when it happens in the workplace, for it
tends to destroy the relationship of trust between employer and employee.

The raft of decided cases dealing with theft or dishonesty in the workplace places a
premium on the need for trust between the employer and his employees and emphasise
that theft or dishonesty tend to make the continuation of that relationship intolerable.”
8
The Motor Vehicle Accident Fund v Sheehama

Employee was employed as an investigating officer with the main duty to determine the
merits of a claim lodged with the Fund. The employee’s supervisor investigated a
fraudulent claim that was paid during the time when the employee was still employed as
a police officer. It was found that the employee fabricated some evidence during that time
on the basis of which the Fund paid out a claim. It was found that there was no criminal
case opened, while an investigating officer is obliged to open a case in an instance where
someone was seriously injured. It could, however, not be established whether the
employee benefited from the claim lodged. If the Fund had known what was discovered
during the said investigation, it would not have employed the employee. The employee
was suspended and subsequently appeared in a disciplinary hearing and was dismissed.

The Court found that the employee’s testimony contained a number of discrepancies,
especially in view of the fact that he was a highly qualified and experienced police officer
and in particular an experienced police officer in motor vehicle accidents. The Court held
the opinion that it was not necessary for the Fund to prove that the employee had
benefited financially from any payments made to the claimant.

Court held that the employee committed a serious misrepresentation when he applied for
the position advertised by presenting to the Fund that he was honest, impartial, and
trustworthy and a man of integrity who could be trusted to investigate fraudulent claims.
The employee was therefore dismissed for a valid and fair reason.

6
NLLP 2002(2) 181 NLC
7
NLLP 2004(4) 199 NLC
8
NLLP 2013 (7) 217 LCN

130
Unit 8 Statutory and common law duties of the employee

9
Ganes and Another v Telecom Namibia Ltd

The Court confirmed that an employee owes an employer the duty of good faith. This
duty entails that the employee is obliged not to work against the employer’s interests, not
to place himself in a position where his interests conflict with that of the employer, not to
make secret profits at the expense of the employer and not to receive any bribe, secret
profit or commission in the course of or by means of his employment.

In the absence of an agreement to the contrary, an employee owes the employer a duty
of good faith. This duty entails that the employee is obliged not to work against the
employer's interests; not to place himself in a position where his interests conflict with
that of the employer; not to make a secret profit at the expense of the employer; and not
to receive from a third party a bribe, secret profit or commission in the course of or by
means of his position as employee of the employer. The employer may claim from an
employee any bribe, secret profit or commission received by him from a third party
without the consent of the employer in the course of his employment or by means of his
position as employee. Bribes or secret commissions received by an employee, in the
course of his employment or by means of his employment, in breach of his fiduciary duty
to the employer are deemed to have been received for his employer.

In the present case, the employee breached his duty of good faith to the employer. He
took money from Dresselhaus, Global Telecom and EPS in return for looking after their
interests in their dealings with the employer, whereas, in terms of his employment
contract, he was obliged to look after the employer's interests. These payments clearly
constituted bribes.

6. REFRAIN FROM MISCONDUCT GENERALLY

It is important that the employee conducts him/herself in accordance with

accepted practice and policy of the employer.

Any misconduct that renders the continuation of the contract intolerable or

unworkable or which undermines the trust and confidence between
employer and employee is regarded as sufficient to justify dismissal.

What follows is a brief explanation of some of the more general types of

misconduct employees make themselves guilty of.

6.1 Assault

Assault may take a verbal or physical form and may be either direct or
indirect or a threat of assault. Elements of insolence, insubordination,
harassment and intimidation may be present in an instance of assault.

9
2004 (3) SA 615 (SCA)

131
Unit 8 Statutory and common law duties of the employee

Assault should be viewed as a serious offence, as it impacts on

performance, professionalism, the working environment and the
employment relationship.

6.2 Loss and/or abuse of or damage to company property

Intentional or malicious damage to the property, product or assets of the

employer represents a breach of trust and could result in dismissal in the
first instance. Sabotage, disregard for regulations, poor maintenance and
wastage are examples of this misconduct.

6.3 Harassment


Section 5(7): Prohibition of discrimination and sexual harassment in
employment: Labour Act

Harassment may be subtle, overt, verbal, physical or a combination of

these. The use of abusive and racist language may amount to
harassment, but not necessarily so. Sexual harassment 10 is a common
and serious form of harassment that can have the effect of creating a
demeaning work environment. The Labour Act defines sexual harassment
as any unwarranted conduct of a sexual nature towards an employee
which constitutes a barrier to employment. It is, however, required that the
victim must have made it known to the perpetrator that s/he finds the
conduct offensive or the perpetrator should have reasonably realised that
the conduct is unacceptable in view of the respective positions of the
parties in the place of employment, the nature of their employment
relationships and the nature of the place of employment.

6.4 Substance abuse

Substance abuse can take the form of being under the influence of and/or
the unauthorised possession of alcohol and/or hallucinatory drugs at the
workplace or during working hours or the misuse of prescribed medication.
This is a serious form of misconduct because of the effect it may have on
the employee’s performance and attendance, the company’s reputation,
health and safety considerations and compliance with legal requirements.
10
Sexual harassment can be described as unsolicited and unwanted sexual advances or suggestions by one
person to another.

132
Unit 8 Statutory and common law duties of the employee

6.5 Negligence

Negligence can be defined as the failure to comply with reasonable

standards of care in performance of duties. Gross negligence would
include negligence with serious consequences.

SUBSTANCE ABUSE
11
Etosha Transport (Pty) Ltd v Namiseb & Others

Employee was employed as a forklift operator. On the assumption of his duty shift, he
was tested positive for alcohol by means of a breathalyser test. The instrument measured
0,4. A form was also completed and formed part of the documentation of the disciplinary
hearing. The completed form refers to other aspects of the employee’s conduct and
appearance which tended to show that he was under the influence of alcohol. He was
then charged for being under the influence of alcohol at his workplace and appeared
before disciplinary hearing, subsequent whereto he was dismissed.

The Court held that, even in the absence of evidence of a policy prohibiting employees
from working under the influence of alcohol, it would clearly be an implied term in any
employment contract that driving or operating hazardous machinery, like a forklift, under
the influence of alcohol, would be a material breach of the employment contract, which
could give rise to termination if a fair process was followed. Being under the influence of
alcohol would constitute a significant safety hazard not only to the employee himself but
also his fellow employees and anyone in the vicinity. The Court specifically observed that
it is a criminal offence to drive a vehicle under the influence of alcohol.

Therefore, for an employee to do so in the course of his employment would constitute a

very serious disciplinary offence which could, and invariably should, attract serious
consequences, including a dismissal. An employer is therefore entitled to take strict
disciplinary action against such employees.

11
NLLP 2013 (7) 177 LCN

133
Unit 8 Statutory and common law duties of the employee

7. ASSIST THE EMPLOYER TO KEEP THE WORKPLACE SAFE AND

HEALTHY


Section 41: Employee duties: Labour Act

There is a duty on both parties to the employment relationship to promote

a healthy and safe working environment. More specifically, an employee
has a duty in terms of the Labour Act to take reasonable care to ensure
his or her own safety and health in the workplace as well as the safety and
health of any individual who may be affected by the employee’s activities
at work and to cooperate with the employer to perform any duty imposed
in terms of the Labour Act or the regulations.

DISMISSAL FOR DISREGARD OF SAFETY STANDARDS

12
Namib Mills (Pty) Ltd v Shigwedha

The Court found that the flagrant disregard for safety standards is a very serious offence,
meriting a dismissal. Especially so if one considers that the Labour Act devotes a whole
chapter on health, safety and welfare of employees and the said Act assigns duties to
employees in this respect as well. To hold that the offence should not merit a dismissal is
to disregard a very important statutory provision which is there to protect the health,
safety and welfare of employees and persons who may be affected by the activities of
employees at work.

12
NLLP 2013 (7) 460 LCN

134
Unit 9 Remedies for breach of any term or condition of employment

Unit 9

Remedies for breach of any term or condition of

employment

Learning objectives

At the end of this unit, you should be able to:

• Discuss the different common law remedies available to the

victim/innocent party in the event of breach of contract
• Explain the concept “summary termination”
• List any three grounds recognised by the Courts that justify the remedy of
cancellation of the contract of employment by an employee
• List any three grounds recognised by the Courts that justify the remedy of
cancellation of the contract of employment by an employer
• Set out the requirements to be met in order to claim damages
• Explain how damages are calculated
• Summarise the statutory remedies available to an aggrieved party in an
employment context
• Illustrate the principle of progressive discipline at the workplace
• State the legal rules applicable to the suspension of an employee
• Outline the purpose and role of a disciplinary code at the workplace
• Evaluate the circumstances in which the employer is entitled to deviate
from the principles laid down in the disciplinary code
• Name and discuss the two criteria for a fair disciplinary action
• List the criteria to assess the validity of a workplace rule
• Analyse the standards of a fair disciplinary hearing
• Apply the contents of this unit to solve problems

Additional reading
rd
Basson, A. et al. (2002). Essential Labour Law: Individual Labour Law (Vol. 1 3 ed.). Houghton:
Labour Law Publications.

Bendix, S. (2000). The Basics of Labour Relations, Cape Town: Juta.

De Beer, P.J. (Ed.) (1998). Labour Court Reports (1993-mid 1998), Namibian Labour Law
Publication (Vol. 1). Windhoek: SDU Seminars.

135
Unit 9 Remedies for breach of any term or condition of employment

De Beer, P.J. (Ed.) (2002). Labour Court Reports (1998-mid 2002), Namibian Labour Law
Publication (Vol. 2). Windhoek: ERC.

De Beer, P.J. (Ed.) (2004). Labour Court Reports (2002-January 2004), Namibian Labour Law
Publication (Vol. 4). Windhoek: Ernest & Young.

De Beer, P.J. (Ed.) (2013). Namibian Labour Law Publication (Vol. 7) NLLP 2013(7). Windhoek:
De Beer Law Chambers.

De Beer, P.J. (Ed.) (2015). Labour Act Compilation, Namibian Labour Law Publication (Vol. 9).
Windhoek: De Beer Law Chambers.
th
Du Bois, F. (Ed.) (2007). Wille’s Principles of South African Law (9 ed.). Cape Town: Juta & Co.
th
Du Plessis, J.V. & Fouché, M.A., Van Wyk, M.W. (2001). A practical guide to Labour Law (4
ed.). Durban: Butterworths.
th
Finnemore, M. (1997). Introduction to Labour Relations in South Africa. (5 ed.). Durban:
Butterworths.

Grogan J. (2010). Dismissal. Cape Town: Juta Law.

nd
Grogan J. (2007): Dismissal, Discrimination & Unfair Labour Practices, (2 ed.). Cape Town: Juta
Law.

Grogan, J. (2010). Employment Rights. Cape Town: Juta Law.

th
Grogan, J. (2009). Workplace Law (10 ed.). Cape Town: Juta Law.

Landis, H. & Grossett, L. (2005). Employment and the Law – A Practical Guide for the Workplace
nd
(2 ed.). Cape Town: Juta & Co Ltd.

Le Roux, P.A.K. & Van Niekerk, A. (1994). The South African Law of Unfair Dismissal. Cape
Town: Juta Law.

Opperman, M (2011). A practical guide to disciplinary hearings. Cape Town: Juta & Co.

Parker, C (2012). Labour Law in Namibia. Windhoek: University of Namibia Press.

Labour Act 11 of 2007

Namibian Constitution

Website: www.namiblii.org

Website: www.lac.org.na

Website: www.saflii.org

136
Unit 9 Remedies for breach of any term or condition of employment

1. INTRODUCTION

The normal expectation of the contracting parties and the law is that the
contract will indeed be performed as it was agreed upon. One party’s
breach of contract entitles the other party (the victim/innocent party) to a
contractual remedy or remedies. These remedies are the legal means
provided for protecting the innocent party’s contractual rights.

In this unit we discuss the various remedies available to the employer and
employee respectively in the event of breach of contract committed by the
other party.

2. COMMON LAW REMEDIES

The common law remedies include a claim for specific performance or the
payment of a sum of money which serves as a substitute for performance.
Alternatively, the remedy of cancellation is available in certain instances of
breach. Since the law accepts that, as a general rule, contracting parties
intend to carry out their contract, the parties may expect that their contract
will be carried out according to the terms and conditions agreed upon.
Specific performance is therefore regarded as the natural remedy for
breach of contract. In principle, a party is entitled to an order for specific
performance in the case of breach by the other contracting party.
Cancellation can be regarded as an extraordinary remedy because the
victim/innocent party can use it only if the breach of the defaulting party is
a material breach which destroys the nature or purpose of the agreement.

Both remedies can be accompanied by a claim for damages as will be set

out in detail below. The victim/innocent party therefore can choose one or
more of the following remedies:

• Specific performance
• Cancellation (termination)
• Damages

2.1 Specific performance

An order for specific performance is a Court order in terms of which the

party committing the breach is ordered by the Court to fulfil the contractual
obligation(s).

The order may take the form of:

• An order to do something; or
• To restore something; or

137
Unit 9 Remedies for breach of any term or condition of employment

• An interdict to refrain from doing something contrary to the

victim/innocent party’s rights

In the past the Courts were reluctant to give an order for specific
performance in the form of reinstatement, due to the following reasons:

• The obligations arising from the contract of employment are of such a

personal nature and interference by forcing people to work together,
where the relationship has deteriorated, would harm the working
relationship even more;
• It would be difficult for a Court to enforce such an order; and
• An award of damages would be sufficient in most cases.

The Courts may refuse to grant an order for specific performance and
award damages instead if it is deemed to be in public interest that specific
performance should not be granted. The fact that the relationship between
the employer and employee has broken down irretrievably is one of the
factors that may influence the Court not to award an order of specific
performance.

In other circumstances, an order for specific performance would be the

appropriate order to make, for example, in a situation where the
employees embarked on an illegal strike, the employer may obtain an
interdict to halt the strike or where a former employee is subject to a
restraint of trade, the employer may obtain an interdict to stop such person
from breaching the terms of the restraint.

In addition to an order for specific performance, the victim/innocent party

can also sue the breaching party for losses occasioned by the breach,
known as a claim for damages. 1

2.2 Cancellation (termination)


Section 30 (6)(b): Termination of employment on notice: Labour Act
Section 33 (1): Unfair dismissal: Labour Act

The remedy of cancellation (termination) of a contract of employment is

only available to either party if the other party’s actions amount to

1
See discussion in par. 2.3 below.

138
Unit 9 Remedies for breach of any term or condition of employment

repudiation of the contract, or where the breach is so serious that it

renders the continuation of the employment relationship impossible.

Whether conduct in a particular case is a material breach is a question of

fact. Cancellation (termination) can take place either with or without
notice. If no notice is given, it is known as summary termination, which
means that the termination takes immediate effect, irrespective of the fact
that the contract of employment might provide for a notice period. The
right to terminate summarily is affirmed in section 30 of the Labour Act
where it is stated in subsection 6 (b) that both an employer and an
employee have the right to terminate the contract of employment without
notice, “for any cause recognised by law”.

Cancellation is optional, as either party has a choice to either cancel

(terminate) the contract or continue with it, despite the breach. However, if
the breach is not serious enough to justify termination (cancellation), the
innocent party has the right to claim specific performance and damages.
As stated before, in addition to the remedy of cancellation, the
victim/innocent party can also sue the breaching party for losses
occasioned by the breach (known as a claim for damages).

2.2.1 Cancellation (termination) by an employee

Some examples of serious breach of contract by the employer, that will

justify the cancellation of the contract by the employee, include a failure to
provide work to the employee in a situation where there was a legal duty
on the employer to do so (as discussed in Unit 7 of this guide); a
demotion; or non-payment of the agreed remuneration.

An employee in an indefinite term (or permanent) contract is permitted to

cancel (terminate) the agreement for no reason at all, in which case no
damages or losses may be claimed. A reason is, however, required for
summary termination (no notice period applicable).

2.2.2 Cancellation (termination) by an employer

The Courts recognise a number of grounds that justify the cancellation

(termination) of the contract by the employer, including, inter alia:

• Incompetence to do a particular work;

• Gross negligence;
• Deliberate absenteeism or failure to work;
• Disobedience of reasonable commands;
• Rude behaviour to the employer;
• Secret profits made at the expense of the employer or competing
with the employer and thereby violating the relationship of trust;

139
Unit 9 Remedies for breach of any term or condition of employment

• Disclosure of trade secrets or the misuse of information obtained

through his or her employment;
• Dishonesty in the scope of duties;
• Use of employer’s property for private purposes;
• Misconduct such as drunkenness or assaulting co-workers or
customers and
• Conduct to the detriment of discipline.

It is important to remind you that cancellation (termination) of an

employment contract by an employer is also known as dismissal. In terms
of the common law, no reason need to be given in the case of termination
on notice, however, in terms of the Labour Act, certain requirements have
to be met for the dismissal to qualify as a lawful dismissal. According to
section 33 of the Labour Act, every employee who is dismissed must be
dismissed for a fair and valid reason (the requirement of substantive
fairness) and according to a fair procedure (the requirement of procedural
fairness). It is the duty of the employer to prove that a dismissal had been
fair. A general discussion on the lawful termination of a contract of
employment shall follow in the Labour Law 1B guide.

2.3 Damages

The loss suffered by a victim of a breach of contract is known as

damages. Damages may be claimed whether the contract is upheld or
cancelled.

Breach of contract does not necessarily cause the innocent party to suffer
loss. The plaintiff is not entitled to claim damages merely because of
breach of contract; s/he must prove that damages were actually suffered,
as well as the extent of the damages.

Only patrimonial damages / pecuniary compensation can be claimed as a

result of breach of contract. Damages cannot be awarded as a result of
pain and suffering, humiliation or injured feelings, physical inconvenience
or mental discomfort. Compensation on grounds of a delict may possibly
be claimed in such an instance.

The purpose when damages are awarded is to put the victim/innocent

party in the position s/he would have been in if the debtor performed
according to the contract, i.e. if no breach of contract occurred.

When damages are calculated, the present value of the plaintiff/innocent

party’s estate must be compared with the hypothetical value of his/her
estate, had the contract been fulfilled, i.e. if no breach of contract
occurred. Where defective performance took place, one will take note of

140
Unit 9 Remedies for breach of any term or condition of employment

the value of the performance rendered and compare that with the value of
proper performance.

In order to be able to claim damages on the basis of breach of contract, a

plaintiff should prove the following:

• Breach of contract by the other contracting party

• Damages (amount of loss suffered)
• A factual causation between the breach and the damages
• That the damage was reasonably foreseeable or agreed to by the
parties.
• That s/he has taken all reasonable steps to mitigate the damages.

2.4 Refusal to pay / work

As discussed in Unit 7 of this guide, an employee is only entitled to

receive remuneration for work actually done in terms of the common law
rule of ‘no work, no pay’ and, in the same way, an employee may refuse to
work on the basis of the “no pay, no work” principle. The employer is
accordingly allowed to deduct an amount proportional to the absence from
the employee’s remuneration and will not be deemed to be in breach of
contract.

Similarly, the refusal to work in the event of non-payment of remuneration

will not constitute a strike or breach of contract, but rather a legitimate
exercise of contractual rights. As discussed before, an employee also has
the legitimate right to refuse work until a dangerous situation at the
workplace is corrected, i.e. if the employer failed to comply with the duty to
keep the workplace safe and healthy.

3. STATUTORY REMEDIES

In addition to the common law remedies, the parties may utilise the
statutory remedies provided for in the Labour Act. The said Act provides
dispute resolution measures in a variety of matters, for example, disputes
concerning fundamental rights and protections (child labour, forced labour,
discrimination, sexual harassment and freedom of association); disputes
concerning basic conditions of employment (remuneration, hours of work,
leave, accommodation and termination of employment); health, safety and
welfare of employees; unfair labour practices.

Generally, a dispute can be referred to the Labour Commissioner who

shall, in turn, refer the said dispute to either conciliation or arbitration, or,

141
Unit 9 Remedies for breach of any term or condition of employment

in most instances, a dispute will be subjected to both conciliation and

arbitration.

An arbitrator’s award may include, among others, an interdict; a

declaratory order; an order of reinstatement of an employee; an order
directing the performance of any act that will remedy a wrong and an
award of compensation. The dispute resolution process in terms of the
Labour Act shall be discussed in detail in the Labour Law 1B guide.

REINSTATEMENT AS A FORM OF SPECIFIC PERFORMANCE

In the landmark case of National Union of Textile Workers v Stag Packing (Pty) Ltd
2
and Another the Court gave an order for specific performance in the form of
reinstatement and held that the Court has a discretion whether or not to order specific
performance of duties imposed by a contract of employment and that there was no fixed
rule prohibiting such order.
3
Pinks Family Outfitters (Pty) Ltd t/a Woolworths v Hendricks

The Court confirmed that fairness and reasonableness form an integral part of an
employment relationship and the interests of both parties should therefore be considered.
In this matter, the Court could not find any reference in the reasons given by the learned
chairperson that he had considered the position of the employer.

It was further held that the burden of proof is on the employee to prove her losses or the
amount that she would have received had she not been unfairly dismissed. She also had
a duty to mitigate her damages. The employee claimed that she had applied for four
positions, but did not provide any proof of such applications. She also did not submit any
evidence in support of her claim that it would take her two years to find employment.
4
Paulo v Shoprite Namibia (Pty) Ltd & Others

Court held that the Namibian legislation does not give power to the arbitrator to order
retrospective reinstatement to the date of dismissal on terms applicable at the time of
dismissal. The Labour Act 11 of 2007 has abandoned re-employment as a possible
remedy.

It was further said that mere reinstatement does not necessarily imply that backpay
and/or compensation automatically follows. Reinstatement means to put a person back
into his previous job.

S 89(9)(b)(ii) provides that a condition of the suspension of an award pending an appeal,

is that the employer must continue to pay the employee’s remuneration pending the
determination of an appeal or review, even if the employee is not working during that
time. It is the employee’s duty to invoke the remedy provided for in the said section, if not,

2
1982 (4) SA 151 (T)
3
2010(2) NR 616 (LC)
4
2013 (1) NR 78 (LC)

142
Unit 9 Remedies for breach of any term or condition of employment

the common law shall apply in that the employer had no duty to remunerate an employee
for services not actually rendered.
5
Rosh Pinah Corporation (Pty) Ltd v Dirkse

Compensation should, as a general rule, place a dismissed employee in monetary terms

in the position such employee would have been had the unfair dismissal not occurred, but
a judge or arbitrator should be guided by what is reasonable and fair in the circumstances
and not with a desire to punish the employer.
6
Edgars Stores (Namibia) Limited v Laurika Olivier & Others

The Court confirmed the principle that an award of back pay from the date of dismissal to
the date of reinstatement should not automatically follow an award of reinstatement. The
facts and circumstances of the case should be taken into account in order to award a
reasonable amount as compensatory award for the period between the date of dismissal
and date of reinstatement. The degree to which the employee’s own conduct contributed
to the dismissal should also be taken into account.

4. DISCIPLINE IN THE WORKPLACE


Section 33: Labour Act: Unfair dismissal
Section 48: Labour Act: Unfair disciplinary action

One of the implied terms in a contract of employment is the employer’s

right to maintain and enforce discipline in the workplace. Discipline is
regarded as a means for employees to know and understand the standard
of conduct required of them. It is generally accepted that an employer is
entitled to set the standards of conduct for its employees and to decide
how these standards should be enforced, within the confines of
reasonableness and fairness.

The right to discipline is directly linked to the employee’s duty to obey all
lawful and reasonable instructions. Discipline implies rules and rules, to be
effective, imply the power to impose sanctions on those who break them.
All disciplinary systems must enjoy legitimacy among those bound by
them and this, in turn, presupposes that employers lay down reasonable
rules that they apply fairly and consistently.

5
(LC 13/2012) [2015] NALCMD 4 (13 March 2015) - unreported
6
LCA 67/2009 – 18 June 2010 - unreported

143
Unit 9 Remedies for breach of any term or condition of employment

As indicated in our discussions above, an employer is entitled to dismiss

the employee who fails to comply with his or her various duties at the
workplace. Occasionally, employees make themselves guilty of minor
instances of misconduct and the employer accordingly needs to consider
alternative sanctions / penalties, as dismissal was the ultimate penalty to
be imposed only in cases of serious misconduct or repeated offences. In
fact, the dismissal of an employee will be considered unfair if a warning or
some other sanction short of dismissal would have been sufficient in the
circumstances. Only those employees who are unwilling to comply with, or
incapable to adhere to, the employer’s rules and standards can be
dismissed fairly. The less serious the offence the more stages of discipline
intervene between the first occurrence and dismissal, commonly referred
to as progressive discipline.

4.1 The principle of progressive discipline

Discipline must be focused on correcting an employee’s behaviour by

means of a graduated system of sanctions / penalties so that the
employee could be given an opportunity to absorb the rules of the
workplace. Therefore, the sanction must be appropriate for the
contravention of the rule or standard or stated differently, the penalty must
fit the offence. The modern concept of discipline is that of corrective or
progressive, not punitive.

A more serious sanction can only be imposed in cases where the

employee committed an offence similar in character to the one for which
s/he received a written or final written warning.

MORE SERIOUS PENALTY MUST BE FOR SIMILAR MISCONDUCT

An employee may not be dismissed for sleeping on duty because s/he is on a final written
warning for not being dressed in the prescribed way.

Examples of various forms of sanctions that may be imposed against

individual employees, in order of severity, can be illustrated as follows:

♦ Oral warning (informal warning)

♦ Written warning
♦ Final written warning
♦ Dismissal

144
Unit 9 Remedies for breach of any term or condition of employment

4.1.1 General warnings

General warnings are used to inform employees of the rules which were
created by the employer in executing its right to regulate the workplace.
This type of warning is also often used to signal to the employees that the
employer intends to take action against specified forms of misconduct that
might have been condoned in the past. A general warning does not form
part of the so-called disciplinary ladder and could thus not be considered
as a sanction already imposed on an individual employee, but it can help
to determine whether an employee was aware of a rule.

4.1.2 Oral / informal warning

The purpose of a specific oral warning to an individual employee is to

advise the employee of defective standards, performance or behaviour. It
serves as a reminder of the rules and the object is plainly corrective of
nature. Since oral warnings are informal in nature, there is no need for a
specific procedure to be followed before issuing the warning, unless a
formal procedure is required in terms of the contract of employment or a
collective agreement. It is advisable to keep a proper record of all
warnings on the personal file of the employee.

4.1.3 Written warning

A written warning is more formal and enables the employer to keep a

record of the employee’s misconduct in the event of a re-occurrence. The
issuing of a written warning should be preceded by a proper hearing /
enquiry during which the employee should be allowed to state his or her
case and produce evidence. An employee may be required to sign the
warning, but a refusal to sign does not affect its validity.

4.1.4 Final written warning

The purpose of a final written warning is to give an employee a final

chance to correct his or her behaviour before dismissal. The value of this
type of warning would be watered down if the employer uses it
prematurely or if more than one final written warning is issued. If used
more than once, the employee may get the impression that the employer
is not serious with the threat of dismissal and the warning would thus
become ineffective. Many disciplinary codes provide that written and final
written warnings remain in force for a specific period, usually six months.
The Courts have endorsed this practice, the rationale being that
employees’ misconduct should not be held against them in perpetuity.

145
Unit 9 Remedies for breach of any term or condition of employment

4.1.5 Dismissal

Dismissal is the absolute last resort and may only be utilised where the
employment relationship is no longer viable because of the employee’s
conduct. As explained before, dismissals can be done with or without
notice.

Dismissal will be the appropriate sanction if:

• There is no alternative sanction which will be effective or practical;

or
• Corrective measures, such as warnings and demotion are not
appropriate in the given circumstances; or
• The misconduct / transgression results in a material breach of the
employment agreement; or
• The misconduct (or the repetition thereof) is of sufficient serious
nature that it renders the continuation of the employment
agreement impossible, i.e. the employer-employee relationship had
broken down irretrievably.

4.1.6 Suspension

Suspension is an interim step and is different from dismissal, as it does

not relieve the employer of its duty to remunerate the employee, unless
suspension without remuneration is authorised in terms of the contract of
employment or by legislation 7.

There are two kinds of suspension, i.e. suspension pending disciplinary

action or as a form of sanction. The former kind of suspension is usually
resorted to only in exceptional circumstances, for instance, where the
employee made him-/herself guilty of serious misconduct and/or there is a
fear that the employee may interfere with the investigation. Suspension
may also be imposed if the circumstances dictate that the employee
should not be at the workplace for a short period of time, for example, a
cooling off period after an employee was involved in an assault.

Suspension without pay is permissible as a sanction if it is provided for in

a disciplinary code, or a collective agreement or if the employee agrees to
it as an alternative when faced with dismissal.

7
For example, the Public Service Act 13 of 1995

146
Unit 9 Remedies for breach of any term or condition of employment

4.1.7 Other possible sanctions


Section 12 (1)(b), (2), and (5): Labour Act: Deductions and other acts
concerning remuneration

If stipulated in the disciplinary code or a collective agreement, other

sanctions short of dismissal may be imposed, for example, deprivation of
a discretionary bonus or special leave, etc. The employer, is, however, not
allowed to levy a fine on an employee or make any deductions from their
salaries, unless it is authorised by statute or a collective agreement.

Although it amounts to a unilateral change in the terms and conditions of

an employee, demotion is considered as an acceptable alternative to
dismissal, especially if it is provided for in the disciplinary code.

4.2 Disciplinary code

4.2.1 Purpose of a disciplinary code

The disciplinary code sets out the most important rules that apply in the
workplace. As it is impossible to draft a document setting out all possible
rules and covering all possible types of misconduct, it is important that the
code includes a reference to the fact that it is not a comprehensive list of
all possible forms of misconduct.

The purpose of the code is further to provide the employees with

information on how serious the employer views certain forms of
misconduct by giving guidelines as to the consequences of the different
types of misconduct. It thus creates certainty among employees as to how
misconduct will be managed in the workplace and ensures that
disciplinary action is applied consistently by various managers.

Not all transgressions / violations are regarded in the same light of

seriousness and, therefore, do not deserve the same disciplinary sanction.
However, the repetition of less serious transgressions / violations may
change their categorisation to being serious, if warnings by the employer
are ignored and the corrective action thus failed.

147
Unit 9 Remedies for breach of any term or condition of employment

4.2.2 Example of a disciplinary code

Here follows an example of the categorisation of transgressions /

violations and proposed disciplinary sanctions to be imposed, as
contained in a disciplinary code.

Major offences First Second Third

occurrence occurrence occurrence
Abscondment or desertion for 5 or Summary
more consecutive working days dismissal
without authorisation or notification
Abuse of any leave or benefits Final written Dismissal
granted (e.g. deliberately completing warning or
application forms incorrectly or by dismissal
providing incorrect information
Assault or threats Final written Dismissal
warning or
dismissal
Driving a company vehicle under the Dismissal
influence of alcohol or stupefying
drugs
Failure to obey a lawful and Written or final Final written Dismissal
reasonable instruction written warning warning or
dismissal
Fraud, forgery or falsification Final written Dismissal
warning or
dismissal
Giving unlawful instructions or Written warning Final written Dismissal
assignments warning or
dismissal
Gross negligence resulting in very Final written Dismissal
serious damages, losses or warning or
consequences dismissal
Theft or attempted theft of any Dismissal
nature
Use of company property without Written or final Final written Dismissal
authorisation written warning warning or
dismissal

Serious offences First Second Third

occurrence occurrence occurrence
Absent from work without Written or final Final written Dismissal
permission and notification for not written warning warning or
more than 4 consecutive working dismissal
days
Doing private business or work Written warning Final written Dismissal
during office hours warning
Ineffective or poor performance of Written warning Final written Dismissal
duties warning
Insolence Written warning Final written Dismissal
warning

148
Unit 9 Remedies for breach of any term or condition of employment

Reckless driving of company Written warning Final written Dismissal

vehicle warning
Sleeping on duty Written warning Final written Dismissal
warning

Less serious First Second Third Fourth

offences occurrence occurrence occurrence occurrence
Using abusive/vulgar Oral warning Written Final written Dismissal
language to clients warning warning or
and/or colleagues dismissal
Gambling during office Oral warning Written Final written Dismissal
hours warning warning or
dismissal
Not dressed in the Oral warning Written Final written Dismissal
prescribed way warning warning or
dismissal
Extended breaks, late Oral warning Written Final written Dismissal
arrivals or early warning warning or
departures without dismissal
permission

4.2.3 Employer’s duty to abide by the disciplinary code

It is important to note that it is not a legal requirement for an employer to

introduce a disciplinary code at the workplace. However, if such a code
exists, the employer is obliged to strictly abide by the rules laid down in
the code. The Courts ruled on a number of occasions that employers
should follow their own rules. Therefore, where a code includes guidelines
for sanctions or penalties for specified types of misconduct, these
guidelines should be followed. More specifically, where the disciplinary
code provides for warnings before dismissal, the employer may not
dismiss without issuing the required number of warnings.

Deviation from the code may be warranted in a situation where the

conduct of the employee has led to a breakdown in the relationship and
the employer cannot reasonably be expected to continue employing the
employee.

Although the chairperson of a disciplinary enquiry / hearing should take

the guidelines into consideration, s/he must first consider the
circumstances of the case before deciding on a suitable penalty. The
sanctions imposed may depend on factors such as, inter alia, the job level,
nature of the offence in relation to the employee’s job description, length
of service, disciplinary record and aggravating or mitigating
circumstances. Generally, a less severe penalty than the one prescribed
in the code can be imposed, for example, where there are mitigating
circumstances. However, it will normally be unfair to impose a more
severe penalty, since the purpose of the code is partly to warn the

149
Unit 9 Remedies for breach of any term or condition of employment

employee in advance of the possible consequences of his or her

behaviour.

MITIGATING OR AGGRAVATING CIRCUMSTANCES/FACTORS

APPLICATION OF A DISCIPLINARY CODE
8
Kamanya & Others v Kuiseb Fish Products Ltd

The Court found that the employees were guilty of gross misconduct and that the charges
against them of violence, intimidation and threats on board of the employer’s fishing
vessel were proved and regarded as valid reasons for summary dismissal of an
employee. There was, however, serious provocation from the side of the second mate
which should have been considered as an important mitigating circumstance.
9
City Council of Windhoek v Pieterse

The Court (at 266) fully associated itself with the passages below:

“It is important to note that once an employer adopts a particular disciplinary code,
whether unilaterally or after negotiation with a trade union, he is obliged to stick to its
provisions meticulously. While he may depart from it to favour an employee (which is in
itself unwise), he may not depart from it to the detriment of an employee (Changula v Bell
Equipment (1992) 13 ILJ 101 (LAC)). If the disciplinary code provides, for example, for a
warning for the first commission of a certain offence, it would constitute an unfair labour
practice to dismiss a first-time offender for that particular offence. In other words, the
scale of sanctions cannot be accelerated in a particular case (Rapaport v Caltex Oil (SA)
(Pty) Ltd (1992) 13 ILJ 233 (IC); Durban Integrated Municipal Employees’ Society &
others v Durban City Council (1988) 9 ILJ 1085 (IC)).” (Quoted from Riekert’s Basic
nd
Employment Law, 2 ed., pp. 92-93.)
10
Central Technical Supplies v Kazondunge

The Court found that the procedural unfairness arises from the application of the
company’s code and the way in which the sanction was ultimately imposed. In the
absence of a motivation as to why the chairperson recommended a sanction in excess of
that contained in the code, seems to be conduct in conflict with the code. If the employer
wants to impose a sanction more severe than that contained in its own disciplinary code,
then an employee should be entitled to be heard in respect of that issue and be entitled
to address the employer as to whether the more severe sanction than that contained in
the code should apply to her (or not). That did not occur and the failure to do so
constitutes an unfair disciplinary action. The procedural unfairness of the dismissal arises
from the application of the employer’s disciplinary code and the way in which the sanction
was ultimately imposed on the employee.

8
NLLP 1998 (1) 125 NLC
9
NLLP 2002(2) 260 NLC
10
NLLP 2013 (7) 52 LCN

150
Unit 9 Remedies for breach of any term or condition of employment

11
Namib Mills (Pty) Ltd v Shigwedha

The Court held that the sanction prescribed by an employer’s disciplinary code for a
specific form of misconduct is generally regarded as the primary determinant of the
appropriateness of the sanction. The test is whether the decision to dismiss can be
regarded as so excessive that no reasonable person (or employer) would have taken it.
12
Namibia Wildlife Resorts Limited v Iilonga

The employee had been charged with and convicted of theft of strong liquor (value of N$
58) and dismissed. The matter was referred to the Labour Commissioner, but the referral
had prescribed in terms of s 86(2) of the Labour Act.

The question on appeal was whether the employer had been inconsistent in the
application of its disciplinary code in that it treated the employee differently from another
of its employees, Limo Engelbrecht, and thus acted inconsistent with Art 10(1) of the
Namibian Constitution and section 33(1) of the Labour Act (dismissal without a fair and
valid reason and without a fair procedure). The arbitrator ordered the reinstatement of the
employee solely on the basis of a perceived inconsistent application of disciplinary
sanctions in respect of the same transgression.

The Court held that an employee seeking to rely on the inconsistent application of
discipline by the employer must mount a proper challenge. This in turn requires evidence
of other similar cases which attracted different and less severe disciplinary sanctions to
warrant the inference that the employer had been inconsistent. Comparison between
cases for this purpose also requires consideration not only to the respective employees’
conduct, but also of such factors as the employees’ remorse and disciplinary record,
whether the workforce has been warned that such offences will be treated more severely
in future, and the circumstances surrounding the respective cases.

The employee never raised a claim of inconsistency when the dispute was referred to the
Labour Commissioner and also not in the opening statement made by her on her behalf
by her representative. The claim of inconsistency was also not raised during the cross-
examination of the witnesses for the employer. The claim was therefore never raised
timeously to enable the employer to meaningfully respond thereto. The employee was
also not present at the alleged hearing of Limbo Engelbrecht and the allegation of
Engelbrecht receiving a less severe disciplinary sanction for a similar offence (theft) is
therefore hearsay and inadmissible. The arbitrator therefore erred in law by concluding
that there was an inconsistency in the application of disciplinary sanctions for a similar
transgression.
13
National Housing Enterprise v Hinda-Mbazira

The Court held that the employer should have considered the fact that the employee was
nine years in the employment of NHE; that she was a first offender; that none of the
offences caused NHE any financial or potential financial loss for that matter and,
therefore, no reasonable employer would have charged, let alone dismissed the
employee, in the given circumstances.

11
NLLP 2013 (7) 460 LCN
12
NLLP 2013 (7) 251 LCN
13
2014 (4) NR 1046 (SC)

151
Unit 9 Remedies for breach of any term or condition of employment

It was further found that the charges levelled against the employee are not embodied in
the disciplinary code. It thus followed that they were created, multiplied and labelled
‘serious’ to have the employee out of the NHE.

4.3 Fairness of a disciplinary action


Article 18: NC: Administrative Justice
Section 33(1)(b)(ii): Labour Act: Unfair dismissal

Article 18 of the Namibian Constitution provides that an administrative

Tribunal should act fairly and reasonably and comply with the
requirements imposed upon such bodies and officials by common law and
any relevant legislation.

A disciplinary action shall only be regarded as fair if done for a fair and
valid reason (substantive fairness) and after having followed a fair
procedure (procedural fairness). It needs to be stressed that substantive
fairness and procedural fairness are independent criteria. A disciplinary
action taken against an employee in contravention of the aforementioned
rules shall constitute an unfair labour practice.

The Labour Act does not provide specific guidelines as to when would a
reason be regarded as fair and valid and/or when would there be
compliance with a fair procedure. At the time of preparation of this study
guide, there is also no Code of Good Practice issued that could serve as a
guideline for a fair disciplinary procedure, as required in terms of section
33(1)(b)(ii) of the Labour Act. For this reason, the common law principles
still serve as guidance in this respect.

4.3.1 General test for fairness

Here is a quick reminder of the criteria to judge the fairness of a legal

process (as set out in Unit 1 of this guide):

♦ Similar cases must be treated in a similar manner.

♦ All persons shall be entitled to a fair and public hearing by an

independent, impartial and competent Court or Tribunal established
by law;

152
Unit 9 Remedies for breach of any term or condition of employment

♦ All persons charged with an offence shall be presumed innocent

until proven guilty according to law, after having had the opportunity
of calling witnesses and cross-examining those called against
them.

♦ All persons shall be afforded adequate time and facilities for the
preparation and presentation of their defence, before the
commencement of and during their trial, and

♦ Shall be entitled to be defended by a legal practitioner of their

choice.

♦ The rules of natural justice must be followed. (The rules of natural

justice basically require employers to act in a semi-judicial way
before imposing a disciplinary sanction on their employees.)

Other broad standards against which the suitability of disciplinary actions

can be assessed are contained in international law, more importantly, the
Conventions and Recommendations of the International Labour
Organisation (ILO) Convention 158 of 1982 and Recommendation 166 of
the same year that contain minimum standards for the termination of
contracts of service, including justification for termination of employment,
proper procedures, provision for appeals against termination and payment
of severance benefits in particular cases.
In any proceedings concerning an unfair disciplinary action, the employer
bears the onus to prove that the action was fair; the employee only needs
to establish the existence of a disciplinary action.

4.3.2 Substantive fairness (fair and valid reason)

The following criteria may be used to assess the validity of a work rule
and the legality of sanctions for infringement of such rule, i.e. the
requirement of substantive fairness:

♦ Did the employer have the authority to make the rule in terms of the
contract of employment?
♦ Is the rule in line with the applicable statutes and regulations?
♦ Is the rule reasonably required for the efficient, orderly and safe
conduct of the employer’s business?
♦ Has the rule been consistently applied in similar cases in the
past 14?

14
The so-called parity principle requires equal treatment of employees. Also, if an employer has habitually
or frequently condoned a rule in the past (historical inconsistency), it may be argued that it had fallen in
disuse.

153
Unit 9 Remedies for breach of any term or condition of employment

4.3.3 Procedural fairness

A disciplinary action is unfair if the employer failed to follow a fair

procedure, no matter how compelling the reason for the action might have
been. Even in the case of serious transgressions, the employer may not
dispense with a disciplinary enquiry / hearing. Employees are entitled to a
hearing, no matter how guilty they might be. The right to summarily
dismiss an employee also does not mean that the employer may dispense
with a disciplinary process prior to dismissal. Failure to hold a hearing
could probably be justified in a crisis situation such as violent labour
unrest (although a formal hearing might be expected at a later stage to
reconsider dismissals made in such circumstances) or where the
employee has absconded or unreasonably refused to attend a hearing.

Even if criminal charges have been laid against an employee where the
conduct may justify dismissal, the employer should still hold a disciplinary
enquiry. The standard of proof for dismissal is not the same as for a
criminal conviction and the two proceedings do not have to reach the
same outcome. An employee who is acquitted of a criminal charge of
theft, for example, could still be dismissed for the same behaviour and
vice versa.

The disciplinary procedure outlines the formal process that the employer
will follow whenever an employee breaks a rule of the workplace or any
act that may amount to breach of contract. Discipline should be applied as
soon as possible after the transgression / violation.

Although a fair hearing does not necessarily entail disciplinary procedures

according the stringent and complex technicalities of a Court of law, it is
advisable for the employer to take the following steps:

(a) Preliminary investigation

Especially in cases of serious violations / transgressions it is almost

always necessary to conduct a proper investigation into the matter before
a decision is taken to commence with a disciplinary process. During the
investigation process, it is advisable to obtain sworn statements from all
the vital witnesses. Witnesses often leave the employ of the employer and
cannot later be traced to testify in a disciplinary hearing/enquiry and/or an
arbitration hearing. Although the statement will not carry the same weight
as personal testimony, it will provide the employer with some prospects of
success, especially if such person had been a crucial witness.

In order to decide whether the violation / transgression constitute

misconduct, ask the following questions:

154
Unit 9 Remedies for breach of any term or condition of employment

♦ Was a rule of the workplace broken?

♦ Is the rule valid?
♦ Was the employee aware of the rule or could the employee
reasonably be expected to be aware of the rule as well as the
consequences of non-compliance?
♦ Did the employee contravene the rule?

(b) Notice to attend the disciplinary hearing / enquiry

After all the information had been gathered, the employer must inform the
accused employee of the allegations and provide the employee with an
opportunity to state his or her case in a disciplinary hearing / enquiry. It is
not fair if the decision is taken first and then the hearing follows just to
prove fairness.

The employee must be notified of the charges or allegations s/he will be

required to answer in advance of the hearing. The charges or allegations
must be specified in sufficient detail to enable the accused employee to
prepare a defence. This is done by means of a written notice to the
employee to attend the hearing, given timeously to allow the employee a
reasonable opportunity to prepare. In the said notice the employee must
be informed of his or her right to representation as well as his or her rights
to call witnesses and to question any witnesses called by the employer.
Preferably, provision should be made for acknowledgement of receipt of
the notice by the employee. If the employee refuses to acknowledge
receipt of the notice, it should be handed to him or her in the presence of
two witnesses who can testify to that effect at the disciplinary
hearing/enquiry and/or arbitration proceedings.

The notice as well as the subsequent hearing should be in a language that

is understood by the employee. Where necessary, the notice and the
subsequent proceedings at the hearing should be translated for the
employee.

4.4 The disciplinary hearing / enquiry

The formal disciplinary hearing should follow as soon as possible after the
incident so that the facts are still fresh in the minds of the parties and
witnesses. Further, a long wait between the discovery of the offence and
the decision to take disciplinary action may give the impression that the
employer has condoned the conduct. The requirement of a hearing within
a reasonable time should be balanced with the requirement that the
employee should have adequate time to prepare for the hearing. The
fairness of the hearing shall further be determined by the following
standards:

155
Unit 9 Remedies for breach of any term or condition of employment

4.4.1 The employee should be present at the hearing

A hearing held in the absence of the employee would, in most

circumstances, be regarded as unfair. The employer, however, may
proceed with the hearing in the absence of the employee if the employee
refuses to be present, provided that notice of the hearing was given in
advance to the employee or in a situation where the employee has
absconded and his or her whereabouts is unknown.

Furthermore, the employee must be able to understand the proceedings.

If need be, the employer should provide an interpreter to enable the
employee to defend him/herself on the charges. If the employee cannot
understand the proceedings, then his/her right to challenge his accusers is
infringed upon and the hearing would be considered as unfair. The
chairperson should particularly make sure that the accused employee fully
understands the charge against him or her.

4.4.2 The employee should be permitted representation

An employee is entitled to be represented or assisted by a co-employee or

a workplace union representative (shop steward). This does not
necessarily include external representation by a union representative or a
legal practitioner, unless the contract of employment and/or a collective
agreement provides otherwise. However, in complicated or highly
technical matters, the chairperson should entertain a request for legal
representation by an accused employee. The purpose of representation is
threefold, i.e.:

♦ It gives the accused employee moral support and helps to balance the
scales;
♦ To a limited extent, it ensures that justice is seen to be done;
♦ It helps levelling the playing field, especially where one of the parties is
less experienced or knowledgeable than the other.

If an employee fails to appoint a representative, the employer is under no

obligation to provide one.

4.4.3 The employee must be allowed to call and question witnesses

An accused employee should be allowed to call witnesses in his or her

defence or in mitigation and to cross-examine witnesses called by the
employer. The employer also has the right to cross-examine the witness of
the employee. Since it is on occasion difficult to persuade people to give
evidence at disciplinary hearings because they are afraid to do so, the
evidence can be presented in camera or by means of a written statement,

156
Unit 9 Remedies for breach of any term or condition of employment

provided that sufficient arrangements are made for the accused employee
to challenge the evidence.

The purpose of cross-examination is to afford a party the opportunity to

test the evidence of the other party, i.e. to see if the witness remembers
correctly or if the witness is reliable.

4.4.4 Keep minutes of the proceedings

The chairperson should keep notes of the proceedings or must ensure

that somebody is present to do so. If at all possible, it is recommended
that a video or audio recording be made of the proceedings. Adequate
notes become particularly important where the disciplinary procedure
allows for an internal right of appeal.

4.4.5 The chairperson should be impartial

The person or body taking the decision in the matter should not be biased
and there should also be no grounds for even suspecting that his or her
decision might be shaped by extraneous factors, even if this is in fact not
the case. It is essential that the chairperson is someone who was not
involved in the incident or investigation and who has no personal interest
in the outcome of the hearing. The bigger the organisation, the larger the
burden to appoint an impartial chairperson. Although preferred, this does
not mean that an outside party should be used in all hearings. At least it
should be somebody that was not involved in the incident in question or
who has no direct interest in the outcome of the matter. If an employee
has reason to doubt the impartiality of the chairperson, s/he may request
the chairperson to recuse him-/herself.

The chairperson must base the decision on facts presented during that
specific hearing.

4.4.6 Requirements relating to the decision

Two stages must be used in the hearing, i.e. judgment and sentence.
Firstly the guilt of the employee should be determined on the evidence
produced, without reference to his/her disciplinary record. An employer
does not need to be satisfied beyond reasonable doubt that the employee
was actually guilty of misconduct; the civil law test of proof on a balance of
probabilities suffices. The same test is applied by the Courts and
arbitrators.

Secondly, a penalty, appropriate to the offence and the particular

employee, should be determined. Only at this stage the previous conduct
of the employee can be taken into consideration.

157
Unit 9 Remedies for breach of any term or condition of employment

It is not a requirement that reasons for a decision should be given, but in

the absence of any reasons a negative inference may be drawn. Should
reasons not be given, the employee may argue that the dismissal or
decision is the result of unfair treatment.

4.4.7 ‘Double jeopardy’

If an employee has been acquitted at a disciplinary hearing or if the

chairperson imposed a less severe penalty, the employee can generally
not be subjected to a second enquiry in respect of the same offence. The
Courts may, however, condone breach of the ‘double jeopardy’ rule if
fairness requires same, as fairness to both parties is paramount in an
employment context. Management is also not allowed to ignore the
decision of the chairperson of a properly constituted disciplinary and
substitute it with its own decision.

4.4.8 Right to an internal appeal

Where an internal appeal - to a more senior official or body within the

structure of the employer - is provided for in a disciplinary code, it must be
afforded, unless the employee waives the right to appeal. In a small
business an internal appeal process would not be possible, as there could
be no higher official or it could have been that everyone in the business
was directly involved in either the incident or the hearing, as the
chairperson of the appeal hearing should not have been involved in any
way in the initial hearing.

Even if there is no right to an internal appeal, persons who are aggrieved

by the acts and/or decisions of administrative bodies and/or officials shall
have the right to seek redress before a competent Court or Tribunal in
terms of Article 18 of the Namibian Constitution. The available recourse in
the Labour Act should, however, be followed to the fullest before the Court
is approached.

DRAFTING AND SERVING NOTICE OF DISCIPLINARY HEARING

15
Oa-Eib v Swakopmund Hotel

The employee, who was employed in the surveillance department of the Hotel and
Entertainment Centre, was dismissed on an allegation of theft of money.

15
NLLP 2002(2) 88 NLC

158
Unit 9 Remedies for breach of any term or condition of employment

While the employee was held in custody by the Police, a notice of a disciplinary hearing
arising from the missing money was served at the employee’s home. The employee was
found guilty in his absence and dismissed. He was notified in writing of his right to appeal
personally after his release. In terms of the employer’s code of conduct there is provision
for appeal and the appeal takes the form of a rehearing. The employee never lodged an
appeal. The Court held that there is no requirement that a notice of a disciplinary hearing
must be served personally.
16
House and Home (Shoprite (Pty) Ltd) v Majiedt & Another

Court held that, although it does not need to be drawn up with the precision of an
indictment in a criminal charge, a charge must be clearly specified in order for an
employee facing a disciplinary enquiry to answer to such charge and if an employee is
unaware of a specific charge, such employee would be unable to prepare a defence
thereto. The employee must be given sufficient information to ascertain the alleged
misconduct. The notice to attend a disciplinary hearing received by the first respondent
referred to the charges as “per appendix”, but there was no such appendix as part of the
record of the proceedings before the arbitrator.

CHAIRPERSON MUST BE IMPARTIAL

17
Hailemo v Security Force Services

The learned judge O’Linn stated (at 92-93) as follows:

“Where the employer is a firm with several persons in its management and with a
considerable number of employees, as appears to be the position in the instant case, one
would expect a written record to be kept of the disciplinary hearings and the function of
judge, prosecutor, investigator and witness separated as far as practically possible. In the
instant case, Mr Katjito should have been a witness, and/or person presenting the
evidence at the enquiry with a relatively impartial person in a senior managerial position,
as the person who had to exercise the quasi – judicial function of deciding the important
issues contained in the Labour Act.
18
Mazian v Transnamib Transport (Pty) Ltd

The chairperson of the disciplinary hearing participated in the formulation of the

disciplinary charges against the employee. This obviously impinges upon procedural
fairness.

The Court observed at 357:

“The main purpose of a disciplinary hearing is to enable the presiding officer to weigh the
evidence for and against the employee and to make an informed and considered
decision. Obviously, this presupposes that he should have, and keep, an open mind.

16
NLLP 2013 (7) 308 LCN
17
NLLP 1998 (1) 85 NLC
18
NLLP 2002(2) 352 NLC

159
Unit 9 Remedies for breach of any term or condition of employment

Hence, he should not, as a general rule, have been involved, for instance, as a
complainant, a witness, an investigator or in the preparation or formulation of charges or
have an interest in the outcome of the dispute. … Further, he should not have a history of
animosity or friction with the employee concerned. In other words, he should be an
impartial person whose bona fides in the conduct of the hearing cannot reasonably be
questioned.

Quasi-judicial decisions of tribunals have been set aside merely on the ground that the
person charged might reasonably suspect that the presiding officer was biased.”

PRESUMPTION OF INNOCENCE – MUST PROVE INDIVIDUAL GUILT

19
Pep Stores (Namibia) (Pty) Ltd. v Iyambo & Others

Employees were dismissed for poor work performance, following disciplinary hearings as
a result of stock losses over a period of time, without the employer establishing the cause
of stock losses or whether an individual worker was responsible for poor work
performance. The District Labour Court concluded, which decision was upheld on appeal
to the Labour Court, that the dismissal was unfair. On appeal, the employer contented
that the failure of members of staff to spy and report on co-workers is a sufficient ground
for misconduct to warrant dismissal. According to the appellant the entire staff is
responsible to guard against stock losses. The Labour Court concluded that the employer
confused the issue of poor work performance, a form of incapacity, with that of
misconduct and by adopting the procedure of collective guilt, the employer acted against
the Constitution’s guarantee (as well as the ancient principle of the common law to the
same effect) of the right to be presumed innocent until proven guilty. The dismissal is
accordingly unfair because the employer failed to prove the individual guilt of a worker.

The presiding officer, in an obiter dictum, mentioned that it would have made a difference
if an employee were paid to and responsible for the supervision of others. In such
circumstances, it can be expected from them to “spy” and report on colleagues.

PARITY PRINCIPLE
20
Rosh Pinah Corporation (Pty) Ltd v Dirkse

As a general rule, it would be unfair to treat employees who have committed similar
misconduct differently. Consistency is an element of disciplinary fairness and every
employee must be measured by the same standards. This is often referred to as the
‘parity principle’. In order to avoid a consistency challenge, the employer must be able to
show that there was a valid reason for differentiating between groups of employees guilty
of the same offence.

During the arbitration hearing a witness for the company admitted that other employees
were not charged and disciplined for failing to adhere to internal regulations. There was
also an inconsistent application of company rules. The employer was also unable to

19
NLLP 2002 (2) 336 NLC
20
(LC 13/2012) [2015] NALCMD 4 (13 March 2015) - unreported

160
Unit 9 Remedies for breach of any term or condition of employment

provide any valid reason(s) for disciplining only some employees for the same
transgression. As a result, the Court ruled that such conduct amounted to an unfair
disciplinary action and thus an unfair labour practice.
21
Edgars Stores (Namibia) Limited v Laurika Olivier & Others

Employees both engaged in a fight at the workplace. The employer’s disciplinary

committee dismissed one employee and gave a final written warning to the other. The
Court found the dismissal to be substantively unfair because of the application of different
punishments for the same or similar misconduct.

The Court confirmed that in Labour Law, fairness lies at the root of its rules and
procedures.

SANCTION / PENALTY
22
Engelbrecht v Transnamib Holdings Ltd.

The employee was employed as a receptionist. She was charged with theft of N$ 300
and subsequently dismissed. As part of her duties she was asked to make out receipts
for payments made on that morning. The claim was that she made out a receipt for N$
300, handed the original to the client, but cancelled the carbon copy, since the client,
according to her, refused to pay the said amount. It was clear from the evidence that
overlooking the cancelling of a receipt happened more than once before and no
disciplinary action was taken against other employees. The said conduct, i.e. the failure
or negligence to cancel the original receipt, was thus condoned in the past.

The Court was of the opinion that the sanction of dismissal was too excessive for the
offence committed.
23
House and Home (Shoprite (Pty) Ltd) v Majiedt & Another

The Court held that the risk of continuing the employment relationship was a risk
unacceptably great to take especially in view of the seriousness of the offence of stock
loss, the previous conviction of a similar offence, the failure of the employee to take
remedial action after the previous substantial stock loss, and the irredeemable trust
relationship between the employer and employee. Therefore, on a proper evaluation of
the evidence, a reasonable arbitrator would not have reached the decision of ordering the
reinstatement of the first respondent.
24
Rossing Uranium Limited v Shivolo & Another

Employee faced a charge of being absent from work without leave, in circumstances
amounting to desertion. At the disciplinary hearing, the employee pleaded guilty to the

21
LCA 67/2009 – 18 June 2010 - unreported
22
NLLP 2004 (4) 88 NLC
23
NLLP 2013 (7) 308 LCN
24
NLLP 2013 (7) 200 LCN

161
Unit 9 Remedies for breach of any term or condition of employment

charge and was duly convicted and dismissed. The employee appealed internally but
without success.

The main issue was whether the sanction of dismissal should be replaced by a different
sanction. The arbitrator considered the fact that the employee acknowledged his
misconduct and had shown remorse, as mitigating to the extent that he should not have
been dismissed. The employer argued that the absence from work by the employee had
an effect on the whole team in which he worked. It caused inconvenience to both the
employer and others who had to stand in for him.

Although the respondent argued that the arbitrator was at large to consider the issue de
novo and to impose the sanction he deemed appropriate, the Court disagreed and held
that the employer is best equipped to determine what sanction is best suited. The
employer’s discretion must not be interfered with, unless the employer is shown to have
acted unreasonably or unfairly. In the circumstances, the Court found that it has not been
shown that the decision of the employer was unfair or unreasonable.
25
Namibia Custom Smelters (Pty) Ltd v Mupetami & Another

Court held that the decision on what punishment to be imposed is squarely within the
discretion of the employer with the caveat that the punishment should be fair. The
fairness of the punishment should be assessed upon all factors.

Employee dishonestly appropriated employer’s property and attempted to take it outside

through the gates of the employer’s property in breach of the company rules. Such
conduct leads to the conclusion that the mutual trust and confidence between the
employer and employee have disappeared beyond recall.
26
Namib Mills (Pty) Ltd v Shigwedha

The Court held that the sanction prescribed by an employer’s disciplinary code for a
specific form of misconduct is generally regarded as the primary determinant of the
appropriateness of the sanction. The test is whether the decision to dismiss can be
regarded as so excessive that no reasonable person (or employer) would have taken it.

27
House and Home (Shoprite (Pty) Ltd) v Majiedt & Another

The Court held that, in respect of mitigating factors, a presiding officer must take into
account the personal circumstances of an employee. Other factors to consider include
the length of service of an employee, his or her disciplinary record, the gravity of the
offence and whether the employee could reasonably have expected to continue with the
employment relationship. Excessive leniency on the basis of personal circumstances may
expose an employer to an attack on the grounds of inconsistency.

The Court referred to the book of Grogan on Dismissal, Discrimination and Unfair Labour
Practices where it is stated that employer is not required to take mitigating circumstances
into account merely because they invoke sympathy. The test is whether, taken
individually or cumulatively, they serve to indicate that the employee will not repeat the
offence.

25
LCA 8/2014) [2015] NALCMD 7 (16 April 2015) - unreported
26
NLLP 2013 (7) 460 LCN
27
NLLP 2013 (7) 308 LCN

162
Unit 9 Remedies for breach of any term or condition of employment

PROCEEDINGS DURING THE DISCIPLINARY HEARING

28
Kamanya & Others v Kuiseb Fish Products Ltd.

The learned judge O’Linn expressed himself as follows (at 128) on procedural fairness:

“After all, our Labour Act requires a fair hearing and a fair reason for dismissal, whether
or not this was done in the course of a single hearing or in the course of more than one
hearing. Surely, much depends on the nature of the so-called appeal – e.g. whether it is a
full re-hearing or whether it is an appeal analogous to the usual appeal on record which
we find in South African Criminal and Civil Procedure. Furthermore, the appeal in terms
of an employer’s code, can have in mind the setting aside of the proceedings of the initial
disciplinary enquiry, precisely because such initial enquiry was unfair or even a nullity.
Surely, in such a case, the appeal itself corrects the procedure and/or results of the
mutual enquiry, considers the issues de novo and comes to its own decision either on the
existing evidence, or on new evidence adduced at the rehearing.”

Even where an employer’s disciplinary code provides for an initial hearing and a
subsequent appeal, such provision must not be allowed to obscure and frustrate the aim
of the Labour Act to protect workers against unfair dismissals and on the other side of the
coin, protect employers from being forced to keep employees who are in fact and in truth
guilty of serious misconduct.”

It was emphasised at 130 that all enquiries shall at least have to comply with the audi
alteram partem rule of natural justice. It is reasonable to require that the domestic
tribunals and enquiries conducted be chaired by a relatively independent person,
preferably with some legal knowledge and experience and who had not been involved in
the investigation or preparation of the charges or who was not a witness.
29
Van Den Heever v Imcor Zinc (Pty) Ltd

The employee was charged with an attempt to defraud the employer by booking 8 hours
overtime which he did not work.

The employee was informed of the disciplinary hearing about half hour before the
commencement thereof. Particulars of the formulated charge of misconduct were
presented to him at the commencement of the hearing. Employee claimed that he had
insufficient time to prepare his defence and to engage an accredited employee
representative to assist him. The disciplinary code requires reasonable notice of a
disciplinary hearing. A minimum of one day is recommended. Employee was granted
leave to appeal and followed the internal appeal procedure.

The Court decided that defects in the procedure of an initial hearing can be cured by a
subsequent internal appeal. In casu, the internal appeal requires a thorough inquiry to be
conducted and allows for a full rehearing and the chairperson to come to a fresh decision
on the matter. Additional information and evidence may be placed before the chairperson

28
NLLP 1998 (1) 125 NLC
29
NLLP 2004 (4) 257 NLC

163
Unit 9 Remedies for breach of any term or condition of employment

of the appeal inquiry. Therefore, considered as a whole, the procedure which culminated
in the employee’s dismissal was fair.
30
Namibian Broadcasting Corporation v Mubita

The Court found that if a disciplinary committee concludes that dismissal is not the
appropriate sanction and the employer decides to dismiss the employee without applying
the audi alteram partem rule, there was no purpose of appointing the disciplinary
committee and there is no bona fide defence to the complaint of unfair dismissal.
31
Transnamib Holdings Limited v Carstens

The employee was called to a disciplinary hearing on a charge of theft and alternative
charges of gross negligence. Employee was found not guilty. Subsequent hereto, the
employee was required to attend another disciplinary hearing on the same charges and
was again found not guilty on both charges. The findings made at the two disciplinary
hearings were then reviewed by the Chief Executive Officer who found that there had
been clear evidence of gross negligence and recommended that the employee should be
dismissed forthwith. The employee then lodged a claim of unfair dismissal in the District
Labour Court.

The Court found that the procedure was unfair, as the employee was found not guilty on
disciplinary charges brought against him; he was not afforded an opportunity to make
representations to the reviewing officer; no provision was made in the disciplinary rules
for reviewing of a finding favourable to the employee; the internal appeal lodged by the
employee received no attention.
32
Namibia Tourism Board v Kauapirura-Angula

In this matter, the employer's Human Resources Policies and Procedures Manual stated
that a disciplinary action is an internal affair which does not allow any outsider to
represent its employees during a disciplinary hearing 'unless if circumstances
necessitate', then such an employee has to substantiate the grounds thereof, which shall
be subject to the employer's approval. The employer recognised the right of
representation by someone from inside the company (such as a fellow employee or a
shop steward), but no legal representation was permitted.

The employee was charged with insubordination, assault and the use of abusive
language, any one of which offence constitutes an offence for which the employee could
be dismissed.

The Court confirmed that it is trite law that the proceedings at disciplinary hearings are
proceedings at administrative tribunals (which are not Courts of law). Article 18 of the
Namibian Constitution, dealing with administrative justice, requires that administrative
bodies and administrative officials 'shall act fairly and reasonably'. These provisions do
not (contrary to art 12, dealing with civil rights or criminal charges) contain an entitlement
to legal representation at administrative tribunals.

The Court held that the right to legal representation in fora other than Courts of law is not
absolute. Therefore, the provision in the employer’s disciplinary code disallowing outside
representation was not unfair.

30
NLLP 2004(4) 114 NLC
31
NLLP 2004(4) 209 NLC
32
2009 (1) NR 185 (LC)

164
Unit 9 Remedies for breach of any term or condition of employment

33
Kurtz v Nampost Namibia Ltd and Another

The employer's Human Resources Manual provided that employees could be

represented by a co-employee at a disciplinary hearing; outside representation was only
allowed in exceptional circumstances. Such circumstances included the complexity of
charges and possible consequences to an employee.

In the present case the applicant faced numerous charges relating, inter alia, to his
position in the IT department. The charges had been formulated after forensic
investigations had taken place. The applicant averred that no-one in the first respondent
company was sufficiently skilled to undertake this representation on his behalf.

The Court held that the charges were of a complex nature. Moreover, if the applicant
were to be found guilty of any or all the charges, he could have faced serious
consequences, including civil claims and criminal charges.

Held, accordingly, that the applicant was entitled to legal representation at his disciplinary
hearing.
34
Management Science for Health v Kandungure & Another

Employee was called to a meeting to discuss her absence from work, allegedly without
leave. The Court held that such a meeting could never be described as a disciplinary
hearing, after which the employee could have suffered any sanction under the Labour
Act. In order to constitute a fair dismissal, the employer must conduct a proper
disciplinary hearing. A disciplinary hearing is required and necessary where the employer
is considering any punishment under the Labour Act, particularly and especially
dismissal, a meeting is not enough.

The Court then continued to set out the minimum requirements as follows:

♦ Employer must give a concise charge or charges to the employee in advance of the
hearing to enable him or her to prepare adequately to challenge and answer the
charges.

♦ The employee must be advised of his or her right to representation by a member of

his or her trade union or a co-employee.

♦ The chairperson of the hearing must be impartial.

♦ At the hearing, the employee must be given an opportunity to present his or her case
in answer to the charge brought and challenge the assertions of his or her accusers
and their witnesses.

♦ There should be a right of appeal and the employee should be informed about it.

Since these minimum requirements were not met, the employer did not have a valid and
fair reason to dismiss the employee.

The Court held that the meeting, to which the employee was called, was an exploratory
meeting to enable the employer to investigate the respondent’s alleged wrongdoing in
order to learn about it.

33
2009 (2) NR 696 (LC)
34
NLLP 2013 (7) 377 LCN

165
Unit 9 Remedies for breach of any term or condition of employment

35
DHL Namibia International (Pty) Ltd v Kuritjinga & Others

Court held that the employer must lead evidence to prove the existence of misconduct.
The accused employee cannot be convicted merely on the strength of admissions made
by him or her. The Labour Act 11 of 2007 does not contain a provision which is
equivalent to section 112 of the Criminal Procedure Act 51 of 1977 (in criminal
proceedings the State is absolved by section 112 of the said Act from the obligation to
establish a crime committed by an accused and an accused person can be convicted on
the strength of admissions made by him or her). In the case at hand, the employer’s
disciplinary code also did not have a provision which is equivalent to the said section 112.
36
Etosha Transport (Pty) Ltd v Namiseb & Others

The employee admitted that he had consumed alcohol prior to assuming duty. He said
that there had been a death in his family and that he had requested time off when
reporting for duty, which was not granted. He then proceeded to report for duty and was
tested positive for alcohol. The employee complained that he had not been given the
opportunity to cross-examine witnesses at the internal proceedings and he was not
afforded sufficient time for the proceedings.

Court observed that one would not expect a person pleading guilty to exercise the
opportunity to cross-examine any witnesses. It would serve little purpose in the
circumstances.

35
(LCA 1/2013) [2014] NALCMD 1 (24 January 2014) - unreported
36
NLLP 2013 (7) 177 LCN

166
Unit 10 Employer’s liability for the actions of the employee

Unit 10

Employer’s liability for the actions of the

employee

Learning objectives

At the end of this unit, you should be able to:

• Distinguish between actual authority and apparent authority of an

employee (as agent) in a contractual relationship with a third party
• Illustrate the principle of apparent authority by means of an example
• Explain the legal concept of “estoppel”
• Discuss the common law principle of vicarious liability with reference to
relevant case law
• Compare the common law principle of vicarious liability with the liability of
the employer for the contravention of the Labour Act by a manager, agent
or employee
• Apply the contents of this unit to solve problems

Additional reading
rd
Basson A. et al. (2002): Essential Labour Law: Individual Labour Law (Vol. 1 3 ed.). Houghton:
Labour Law Publications.

Bendix, S. (2000). The Basics of Labour Relations. Cape Town: Juta.

De Beer, P.J. (Ed.) (1998). Labour Court Reports (1993-mid 1998), Namibian Labour Law
Publication (Vol. 1). Windhoek: SDU Seminars.

De Beer, P.J. (Ed.) (2002). Labour Court Reports (1998-mid 2002), Namibian Labour Law
Publication (Vol. 2). Windhoek: ERC.

De Beer, P.J. (Ed.) (2004). Labour Court Reports (2002-January 2004), Namibian Labour Law
Publication (Vol. 4). Windhoek: Ernest & Young.

De Beer, P.J. (Ed.) (2013). Namibian Labour Law Publication (Vol. 7) NLLP 2013(7). Windhoek:
De Beer Law Chambers.

De Beer, P.J. (Ed.) (2015). Labour Act Compilation, Namibian Labour Law Publication (Vol. 9).
Windhoek: De Beer Law Chambers.
th
Du Bois, F (Ed.) (2007). Wille’s Principles of South African Law (9 ed.). Cape Town: Juta & Co.

167
Unit 10 Employer’s liability for the actions of the employee

th
Du Plessis, J.V. & Fouché, M.A. (2012). A practical guide to Labour Law. (7 ed.). Durban:
Butterworths.
th
Finnemore, M. (1997): Introduction to Labour Relations in South Africa. (5 ed.). Durban:
Butterworths.

Grogan J. (2010). Employment Rights. Cape Town: Juta Law.

th
Grogan, J. (2009): Workplace Law (10 ed.). Cape Town: Juta Law.

Parker, C (2012). Labour Law in Namibia. Windhoek: University of Namibia Press.

Van Rooyen J.W.F. (Ed.). (2011): Namibian Labour Lexicon: The Labour Act, 2007 A to Z Vol. 2
(revised edition). Windhoek: Macmillan Education Namibia Publishers.

Labour Act 11 of 2007

Namibian Constitution

Website: www.namiblii.org

Website: www.lac.org.na

Website: www.saflii.org

1. INTRODUCTION

As a rule, a person can only be bound by a contract if s/he agreed to such

contract. An exception to this rule is, however, a situation where an
employee acts on behalf of the employer as its agent or representative
where an employer is then held bound to the terms of a contract
concluded on its behalf by an employee.

A further general rule provides that, when a delict is committed, a person

can only be held liable for actions caused by his/her own
wrongful/unlawful conduct. Yet again, there is an exception to this rule,
known as the doctrine of vicarious liability in terms whereof an employer
can be held liable for the delicts committed by its employee while
exercising duties, provided that certain requirements have been met.

2. THE EMPLOYER’S CONTRACTUAL OBLIGATIONS TO THIRD

PARTIES

An employer (as principal) is bound by a contract concluded by the

employee (as agent), provided that such agent has been duly authorised
to enter into the agreement in the name and on behalf of the principal or
the principal ratifies the contract.

168
Unit 10 Employer’s liability for the actions of the employee

Authority of an agent is derived either from actual (express, implied or

tacit) authority or apparent (ostensible) authority.

In the great majority of instances, the source of actual authority is an

express agreement between the parties, i.e. the agent (employee) and
principal (employer), whereby the principal confers authority on the agent.
The parties may also impliedly agree that one shall have the power to act
for and on behalf of the other. A tacit term is incorporated as a term of the
contract for the proper functioning thereof.

Apparent authority (also referred to as ostensible authority) can be

defined as a situation where a person, by words or conduct, represents or
permits to be represented that another person has authority to act on
his/her behalf. The former would be bound by the acts of such other
person with respect to anyone dealing with him/her as an agent on the
faith of any such representation, to the same extent as if such person had
the authority, which he/she was so represented to have.
Apparent authority involves the application of the legal doctrine of
estoppel. In terms of the doctrine of estoppel a person is precluded
(stopped) from denying the truth of a representation previously made by
him/her to another person and the other person, believing in the truth of
the representation, acted thereon to his/her prejudice.

It is important to note that it is the employer (as principal) who should be

guilty of such representation, independent from a possible representation
made by the employee (as agent).

EXAMPLE

An employee who had been an agent for the purchase of food supplies for the employer’s
kitchen had been tasked with other assignments in the same enterprise. Then, by
implication, his agency would have been revoked. If for any reason this employee had
again ordered supplies for the kitchen, the question would be whether the supplier, who
had been dealing with that particular employee for years, were not right to believe that
the employee was still in the position of an agent, and that the employer should therefore
be bound to the contract.

It is beyond doubt that the employee had no actual authority in this case. The employer
might be bound nevertheless on the strength of apparent authority.

The employer created an impression (although unintentionally) that the employee is

his/her agent on which the third party acted and the employer is prevented from calling
upon the truth (i.e. denying the impression) to protect himself/herself.

169
Unit 10 Employer’s liability for the actions of the employee

3. VICARIOUS LIABILITY OF THE EMPLOYER FOR THE DELICTS OF

THE EMPLOYEE

The general rule is that a person cannot be held liable for the delicts
(unlawful conducts) of others. However, as regards the employer-
employee relationship there is an important exception. In terms of the
doctrine of vicarious liability the employer is under certain circumstances
liable towards third parties for the delicts committed by the employee in
the course and scope of his/her employment. The rationale underlying this
principle is not without controversy, as illustrated in the observations of the
Court in the cases below.

1
According to Wessels, JA in Estate Van Der Bijl v Swanepoel at 151, liability for the
servant’s delict attached to the master because –

“it is within the master’s power to select trustworthy servants who will exercise due care
towards the public and carry out his instructions. The third party has no choice in the
matter and if the injury done to the third party by the servant is a natural or likely result
from the employment of the servant then it is the master who must suffer rather than the
third party.”
2
This premise was dismissed by Watermeyer, CJ in Feldman v Mall and the following
basis of liability was proposed:

“…a master who does his work by the hand of a servant creates a risk of harm to others if
the servant should prove to be negligent or inefficient or untrustworthy; that because he
has created this risk for his own ends he is under a duty to ensure that no one is injured
by the servant’s improper conduct or negligence in carrying on his work and that the
mere giving by him of directions or orders to his servant is not a sufficient performance of
that duty. It follows that if the servant’s acts in doing his master’s work or his activities
incidental to or connected with it are carried out in a negligent or improper manner so as
to cause harm to a third party, the master is responsible for that harm.”

The aggrieved party has a choice to sue either the employer or the
employee, or both.

In order to hold the employer liable for the delicts of the employee the
following requirements must be met:

♦ The employee has committed a delict; and

♦ The existence of an employer - employee relationship; and

1
1927 AD 141
2
1945 AD 733

170
Unit 10 Employer’s liability for the actions of the employee

♦ The delict must have been committed by the employee within the
course and scope of his/her duties; and

♦ The delict must have been committed by the employee towards the
promotion of the interests of his/her employer.

These requirements shall now be discussed in more detail with specific

reference to case law.

3.1 Employee has committed a delict

This means that the employee must have caused harm to another party
(also referred to as the “third party”) by his or her unlawful act or omission.
The employer will only be liable for a delict for which damages could be
claimed from the employee. The employer and employee are liable as co-
defendants in solidum, i.e. if the one is to pay; the other is to be absolved.
Should it happen that the employer had paid the full amount of the
damages of the third party; it will be able to claim this amount from the
employee.

3.2 Employer - employee relationship

Before the employer will be held liable for the delict of its employee the
existence of a contract of employment must be established. It must be
clear that the employer exercised control over the employee. Therefore, it
is once again important to distinguish between the contract of employment
(locatio conductio operarum) and the work acceptance contract (locatio
conductio operis), or the contract of the independent contractor.

The employer will not be vicariously liable for the delicts of the contractor
in a work acceptance contract, since the contractor is not under its control.
The employer could be held liable for damages jointly caused with the
independent contractor, but on the grounds of its own delicts.

3.3 In the course and scope of duties

The delict must have been committed by the employee within the course
and scope of his/her duties.

It is sometimes very difficult to determine whether or not the employee

acted in the course and scope of his/her duties.

171
Unit 10 Employer’s liability for the actions of the employee

In the first place the employer will be liable for the delicts committed by its
employee on its instruction or if the act is necessary to comply with the
employer’s instructions. Furthermore, the employer may also be held
vicariously liable for unlawful acts committed by an employee out of
his/her own accord without instructions, provided that such acts are in
connection with the performance of his/her duties and within the scope of
his/her employment.

The liability of an employer may even extend further. If the employee

commits an act expressly prohibited by the employer or which is illegal,
the employer will nevertheless incur liability provided that the employee
acted in the execution of his/her duties and within the scope of his/her
contract of employment. The employer will also be held liable if the
employee is acting within the course and scope of his/her employment
even if it is after working hours or if the employee used his/her private
motor vehicle to execute his/her duties.

3.4 Promotion of interests of employer

The delict must have been committed by the employee towards the
promotion of the interests of his/her employer. When a delict is committed
while the employee is partially promoting the interests of the employer and
partially his/her own interests, the employer will be liable for the delict
committed by the employee. Conversely, if the employee abandons
his/her work to promote his/her own interests the employer will not be
liable for any delict committed by the employee.

There will not always be a clear dividing line. The question is whether the
conduct of the employee was such that it could be said that s/he
completely severed him/herself from his/her duties or only partially. The
employer will incur liability in the latter instance if it can be said that the
damage is attributable to performance of the work of the employer by the
employee.

172
Unit 10 Employer’s liability for the actions of the employee

SOUTH AFRICAN CASE LAW

3
Mkize v Martens

The employer supplied his employees with food. They made a fire to cook the food and
the fire caused damage to a third party. The Court held that the fire was essential for the
execution of the duties of the employees and held the employer liable for the damage.
4
Hendricksz v Cutting

The employee was a lorry driver. While performing his duties, he stopped at a filling
station for fuel. He lit a cigarette, which caused a fire in which the pump attendant was
injured. The employer was held liable.
5
Feldman v Mall

The employee had to deliver goods and had to return immediately to his place of work.
On the way back he deviated from the route to stop for a drink with friends. Later, on his
way back to his workplace he collided with a person and killed him. The Court found that
the employer was liable because the employee was still partially promoting the interests
of the employer. The Court found that at the stage of the collision the employee had
resumed his work. If the accident had occurred when the employee had deviated from his
route on his way to his friends, the employer would not have been held liable, because
the employee was promoting his own interests at that stage.
6
Rossouw v Central News Agency

The employee gave a lift to a hitchhiker. As a result of the employee’s negligence the
hitchhiker was injured. The Court decided that the giving of the lift had nothing to do with
the work of the employee. The employer was held not liable.
7
South African Railways and Harbours v Marais

The third party was a passenger in the guard van of a mixed passenger and goods train.
In contravention of standing orders, the engine driver invited the third party to join him on
the engine’s footplate. The two of them and a fireman drank brandy. On route, the engine
left the rails due to the driver’s negligence and all three died of burns sustained in the
accident. In a claim for damages by the third party’s wife against the driver’s employer,
the Court ruled that the transportation of the third party on the engine was entirely the
driver’s own action and fell outside the scope of his employment. The employer was
therefore not vicariously liable.

3
1914 AD 382
4
1937 CPD 417
5
1945 AD 743
6
1948 2 SA 267 (W)
7
1950 (4) SA 610 (A)

173
Unit 10 Employer’s liability for the actions of the employee

8
Sauer NO v Duursema

A postman was driving a vehicle which belonged to the Post Office without the necessary
authority. Due to his negligence an accident occurred and another vehicle was damaged.
The employer was held liable because the trip was connected with the delivery of mail for
which the employee was employed.
9
Carter & Co v McDonald

An employee used his employer’s bicycle to go to the market for private reasons. He
knocked down and injured a pedestrian. The employer was not held liable, as the
employee was promoting only his own interests when the accident occurred.
10
General Tyre & Rubber Co (SA) Ltd v Kleynhans & Another

The employee drove a tractor on a public road, contrary to the orders of his employer. As
a result of his negligence an accident occurred. The employer was held liable for the
damages of the third party.
11
Minister of Justice v Khoza

Two police constables were guarding prisoners when one of the two aimed a pistol at the
other as a joke. The pistol went off and the second constable was injured. The employer
was held liable.
12
Viljoen v Smith

The employee, although prohibited by his employer, climbed through a fence and walked
some 70 metres into the third party’s farm to relieve himself. While doing so, he lit a
cigarette and caused a fire. The Court held that the employee had not abandoned his
place of work and that he was still acting within the course and scope of his employment.
13
Stein v Rising Tide Productions CC

The third party was a model who was injured during a photo-shoot conducted by the
employer’s close corporation. She claimed, amongst others, that she was not given
sufficient space in which to move, that the camera was too close and that the final shoot
was not the way the move had been practiced. The Court found that no vicarious liability
attached to the employer, as the members of the crew were in fact independent
contractors.
14
Bezuidenhout NO v Eskom

The employee was employed to repair electrical equipment and was supplied with
transport to be used in the carrying out of his duties. He was expressly prohibited from
giving lifts to any person without permission of his supervisors. One night he was driving
home in his employer’s vehicle after performing a duty call-out but also after having

8
1951 2 SA 222 (D)
9
1955 1 SA 202 (A)
10
1963 1 SA 533 (N)
11
1966 1 SA 410 (A)
12
1977 (1) SA 309 (A)
13
2002 11 HC
14
2003 (3) SA 83 (SCA)

174
Unit 10 Employer’s liability for the actions of the employee

deviated and spent several hours at a social event. He was still on duty in the sense that
he could be called out at any time. With him in the vehicle was a third party to whom he
had offered a lift. En route the employee was involved in an accident in which the third
party was injured. The Court ruled that the employee had at the time of the accident not
been driving in the course and scope of his employment. His employment related to the
operation of the vehicle and this required that he does not operate the vehicle while
carrying unauthorized passengers and that he drove it without negligence.
15
Costa da Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern v Reddy

The employee was on duty at the bar, his shift being from 18h00 until 03h00 the following
morning. The employee’s duties included that he had to treat customers with courtesy,
had to serve them as speedily as possible, had to refrain from becoming involved in any
situation that could result in an altercation, and had to report incidents involving
customers to the management.

The third party and his girlfriend had gone to the restaurant. Upon their arrival, they
waited at the bar for service and it appeared to them that the employee in question was
serving everyone else but them. After some time they were served by another barman
and the third party mentioned to that barman that the employee could learn from him on
how to serve customers. The employee overheard this but just glared at the third party.
At some stage the employee reported the incident to a member of the restaurant’s
management who told him not to get involved with the third party. As the third party and
his girlfriend were leaving, the employee left the bar area and quickly exited the
restaurant, meeting up with the third party and his companion in a corridor immediately
outside the restaurant. There he punched the third party and when the latter fell to the
ground, he repeatedly kicked him. As a result of the attack, the third party sustained
injuries. Shortly after the incident, the manager summarily dismissed the employee as he
had broken instructions on how he should perform his basic duties.

The Court held that the employee’s assault had occurred after he had abandoned his
duties and that the act was not performed in furtherance of the employer’s interests and
the employer is therefore not vicariously liable. It was stated that the assault was a
personal act of aggression; neither performed in furtherance of the employer’s interests,
nor under its express or implied authority, nor incidental to or in consequence of anything
the employee was employed to do. When he left the restaurant with the intention of
assaulting the third party, he left the scope of his employment and was on a ‘frolic of his
own’.
16
Minister van Veiligheid en Sekuriteit en ‘n Ander v Geldenhuys

The third party was arrested late at night for being drunk in public. During the course of
the following day he was found unconscious and diagnosed with permanent brain
damage. Alleging to have been assaulted by the Police the respondent sued the
appellants for damages. Alternatively he relied on alleged negligence by the Police in not
summoning medical assistance on discovering his injuries. The Court decided that there
is a legal obligation on the Police to ensure that persons in custody receive such medical
attention as may reasonably be required in the circumstance.

15
2003(4) SA 34 (SCA)
16
2003 (4) ALL SA 330 (SCA)

175
Unit 10 Employer’s liability for the actions of the employee

NAMIBIAN CASE LAW

17
Lofty-Eaton v Gray Security Services Namibia (Pty) Ltd and Others

The Court had to consider whether the security officers at the entrance of the Windhoek
Country Club & Hotel owe a duty of care to members of the public who park their vehicles
on property of the hotel, i.e. whether the security guards have committed a delict by
failing to prevent the theft of plaintiff’s vehicle from the hotel’s premises. The security
company entered into an agreement with the hotel to provide protection in respect of the
property of the hotel only, excluding the property belonging to third parties. The
procedure on entering the parking area of the hotel is that a visitor would be issued with a
card which had to be returned to the security personnel on duty at the gate when
departing the premises. The plaintiff claimed that if a security guard allowed a vehicle to
leave the parking area without having returned the card, then such security guard would
be negligent. The back of the card reads: “Windhoek Country Club Resort & Casino.
Please retain this card on your person and return to Security in order to facilitate smooth
exit from the WCCR premises. All parking is at owner’s risk. The Hotel accepts no
responsibility for any theft or damage to any person of vehicle whatsoever. We value your
property. Gray Security Services. We protect your profits.”

The question before the Court was whether the legal convictions of the community regard
it as reasonable to impose such a duty of care on the security company, or, put
differently, would it be fair and just to do so? The Court’s answer to this question was: “To
find that the legal convictions of the community require that a breach of the alleged duty
as contended by plaintiff be regarded as unlawful would in my view be unjust,
unreasonable and unfair.” This opinion is supported by the undisputed evidence that
members of the public were informed when cards were issued at the entrance by security
guards that parking was at own risk and, in addition, the same information was displayed
on the parking area itself.

The security company was accordingly not held vicariously liable, as no delict was
committed.
18
Dresselhaus Transport CC v The Government of the Republic of Namibia

The third party’s vehicle, consisting of a mechanical horse and two trailers, overturned
and came to rest on its side in the middle island of the road facing in the direction of
Ondangwa about 3 km from the town of Tsumeb. The load of 3744 cases of beer was
secured on the bed of the vehicle with plastic covers and straps. None of the containers
of beer or its contents appeared to have been damaged by the fall. Subsequent to the
accident, members of the Namibian Police arrived and took charge of the accident scene.
A while later a crowd (about 800 people) was gathering at the scene, with people arriving
on foot, in pick-ups and cars. Another truck arrived to load the load from the overturned
truck. Just when the other truck was in position and on the verge of beginning with the
loading operation, members of the crowd swarmed onto the vehicles, grabbed the
cartons of beer and each carried away as much as s/he could handle. It took about ¾ of

17
2005 NR 297 (HC)
18
2005 NR 214 (SC)

176
Unit 10 Employer’s liability for the actions of the employee

an hour for the mob to complete the looting, i.e. the removal of the whole consignment of
beer valued at N$ 134 254-60.

The plaintiff claimed that the members of the Namibian Police present at the scene of the
accident failed or neglected to prevent and/or protect the beer consignment from being
removed, looted and/or stolen by members of the public and members of the police
themselves. The Court found that the Namibian Police had a legal duty provided for in the
Namibian Constitution and Police Act towards the plaintiff to protect the plaintiff and its
property. The police had failed to fulfil their aforesaid duties and in particular failed to take
reasonable steps to do so. The reasonable steps, in the view of the Court, are those to
be taken by a professional police force trained and equipped, mentally and materially, for
their tasks and the Government cannot escape liability if it had failed to take reasonable
steps for such training and equipment. In the circumstances, the Court found the
Government vicariously liable for the delict.
19
Vivier NO and Another v Minister of Basic Education, Sport and Culture

The superintendent of the Môreson School hostel allowed one of the hostel pupils to be
removed from the hostel for a weekend without the written authority of the pupil’s
grandmother, who was at the time also her duly appointed foster parent. The Court
confirmed that the superintendent committed a delict, as she had the legal duty to
supervise, to protect and to keep from harm or potential harm the pupils of the hostel. As
a result of the breach of this legal duty, harm resulted to the minor pupil in that she was
raped and/or indecently assaulted by a teacher employed by the same school. Having
regard to considerations of reasonableness, fairness, justice and policy considerations,
the Court ruled that the damages suffered by the plaintiffs should be imputed to the
superintendent of the Môreson School hostel. Since the said superintendent acted within
the scope and course of her employment with the defendant, the defendant was held
vicariously liable for damages to the amount of N$ 80 000 for pain, discomfort, physical
and mental suffering as well as emotional shock awarded to the first plaintiff (acting on
behalf of the minor girl) and N$ 25 000 (this amount was reduced to N$ 10 000 in a
20
subsequent appeal to the Supreme Court of Namibia ) to the second plaintiff
(grandmother of the pupil).
21
Van der Merwe-Greeff Inc. v Martin and Another

The Court had to decide whether the second defendant (driver of a taxi), was driving the
first defendant’s motor vehicle at the time of the collision whilst acting in the course and
scope of his employment with the first defendant, alternatively within the ambit of risk
created by such employment, alternatively, in the furtherance of the first defendant’s
interest. The first defendant testified that he had employed the second defendant as a
driver for the taxi business he had been operating and the parties agreed to the rules
applying to the employment relationship, one of which was that the taxi must be parked at
20h30. Since the collision occurred at 23h24 in the evening, the first defendant claimed
that the taxi driver had not been working for him after 20h00 that day, i.e. after he
received the day’s takings from him and instructed him to go and park the taxi at the
Wanaheda Police Station about 800 metres away. The document titled “Rules to the taxi
driver”, submitted in evidence by the first defendant, was a print generated afterwards
and not the one signed by the second defendant.

The Court found that the taxi driver was acting in the course and scope of his duties and
in the interest of the employer at the time of the collision, since he was driving a motor

19
2007 (2) NR 725 (HC)
20
Minister of Basic Education, Sport and Culture v Vivier NO and Another 2012 (2) NR 613 (SC)
21
2006 (1) NR 72 (HC)

177
Unit 10 Employer’s liability for the actions of the employee

vehicle identifiable to al prospective passengers and road users as a taxi; he had two
passengers with him when the collision occurred and was in possession of the taxi
licence, which he presented. The conveyance of fare-paying passengers, who had hailed
the taxi because of the insignia being displayed thereon, would have been entitled to
expect that it was available at that hour and such conveyance would, on the face thereof,
appear to be in the economic interest of the first defendant. The Court was therefore
satisfied that, on a balance of probabilities, the driving of the first defendant’s vehicle at
the time of the collision was sufficiently connected to the course and scope of
employment of the second defendant and the first defendant is vicariously liable for the
delict of the second defendant. The Court further observed that even if the taxi driver had
deviated from the agreed hours of operation, he nevertheless continued to act in the
interest of the first defendant’s business at the time he committed the delict.

4. LIABILITY OF THE EMPLOYER FOR THE CONTRAVENTION OF THE

LABOUR ACT BY A MANAGER, AGENT OR EMPLOYEE


Section 132: Liability for contravention of this Act by manager, agent
or employee: Labour Act

Section 132 of the Labour Act provides that an employer is liable, without
exempting the offender, if a manager, agent or employee of an employer
contravenes the Labour Act, unless it is established that:

♦ The commission of the contravention was not within the scope of the
authority or in the course of the employment of such manager, agent or
employee; and
♦ The manager, agent or employee contravened the Act without the
permission of the employer; and
♦ The employer took all reasonable steps to prevent the contravention.

Please note that mere instructions forbidding a contravention of the

Labour Act do not serve as sufficient proof that the employer took all
reasonable steps to prevent the contravention.

178
 Labour Law 1A

Case studies

Units 5-10

Unit 5

1. Mrs. Karobes was appointed in the position of Sales Director at Desert Logistics (Pty)
Ltd. Towards the end of her first month she asked her employer to pay her a fee rather
than a salary, for tax purposes. When she was dismissed eight months later, on the
grounds that she was not meeting the sales targets, she challenged her dismissal. The
company argued that she was an independent contractor and not an employee and could
therefore not rely on the provisions of the Labour Act for the purposes of her claim of an
unfair dismissal. Her hours of work were determined by the company and she was given
an allowance for medical aid and pension, business cards and the use of a company car
and petrol card. She was furthermore not permitted to do any other private work.

Applying both section 128A (Presumption as to who is an employee) of the Labour

Amendment Act 2 of 2012 and the common law, decide what type of contract of service
Mrs. Karobes concluded with Desert Logistics. (10)

2. Nangula works for “Sure Retirement” Insurance Company as an insurance agent. She is
remunerated on a commission basis; she is not required to work full-time and could do
other work. She was given the use of a company car, but had to pay for the fuel and the
servicing of the car. She had to work closely with a manager, but there was a total
absence of any right of supervision and control of Nangula. She could also employ other
people to assist her in the performance of her duties and does not necessarily need to
provide personal services.

Applying the common law, decide whether Nangula has a contract of employment
(locatio conductio operarum) or a work acceptance contract (locatio conductio operis)
with the employer. Motivate your answer by referring to the test(s) that could be applied
to identify what type of contract of service the parties have concluded. (5)

3. Hilma had been working as a cleaner at U-Save Shop for the past approximately six
months. Yesterday morning she was called in by her supervisor who told her that her
services were no longer required, with immediate effect. The supervisor further claimed
that, since they never signed a contract of employment, Hilma should have known that
the shop was actually only doing her a favour by allowing her to work for them and that
they are accordingly able to terminate her services any time with or without notice.

Discuss Hilma’s legal position with specific focus on the supervisor’s statement that
Hilma cannot rely on an existing contract of employment. (6)

4. Briefly discuss the provisions of the Namibian Constitution and the Labour Act 11 of 2007
relating to child labour. (5)

5. A contract of employment can be concluded either for a fixed term or for an indefinite
period (also referred to as a permanent contract).

Briefly distinguish between a fixed term - and indefinite term contract of employment.
(5)

1
6.1 Namtrack offered Filemon a contract of employment in the position of train conductor.
The contract period is from 1 January this year until 31 March next year. Critically discuss
the said stipulation in Filemon’s contract. (5)
6.2. Suppose in 6.1 above that Filemon accepted the position of employment and upon
commencement of his duties, he was told that he must first serve a probation period of
six months. Filemon want to know what is meant by a “probation period”. Advise Filemon.
(5)
7. Tobias is working for St Paul’s College as an English teacher on a two year contract. Two
weeks before the school holidays start, the contractual period expires. Without further
written or oral arrangements between the management of the school and Tobias, he
goes on with teaching. The principal of St Paul’s, who watches him entering the
classroom every morning from his office window, knows that his contract has expired.
However, when he enters the English classroom after the holidays, another teacher has
started giving English classes. He wants to know from you whether he is still an
employee of St Paul’s. (5)

8. Mr. Beukes entered into a contract with Same Day Repair Services CC as technician.
The term of his contract is stipulated as 01 January last year until 31 December this year.
st
On the 1 of March this year Mr. Beukes received a more lucrative offer from Mr Fix-It
CC. He wants to know how soon he could terminate his services with his current
employer, i.e. Same Day Repair Services CC. Advise Mr. Beukes. (5)

Unit 6

1. Kevin, an ice cream manufacturer, employs Jenny in Windhoek on a five-year contract as

a specialist flavour developer and taster. A clause in Jenny’s contract of employment
provides that after the termination of the contract, she may never again participate in any
way in the ice cream trade anywhere in Namibia. One year after the termination of the
contract, Louis, an ice cream manufacturer doing business in Oshakati, offers Jenny
employment. Jenny accepts the offer.

Answer the following questions:

1.1 What is the clause in Jenny’s contract, as referred to in the set of facts above,
called? (1)
1.2 What is the purpose of this clause? (3)
1.3 Discuss the validity of this clause? (5)

2. Sam recently joined a newly established IT business in Namibia, “New Generation

Technologies CC”. He signed a written contract of employment with the said employer.
Since he is still studying part time at NUST, he wants to know whether he qualifies for
any study leave. Explain to Sam the step-by-step procedure to follow in order to establish
the terms and conditions of his employment contract. (5)

3. When Hilma joined the business “Creative Fashions (Pty) Ltd as a seamstress in 2004,
one of the terms of her contract included the benefit of medical aid, fully paid by her
st
employer. This benefit, in Hilma’s case, is worth N$ 1200 per month. On the 1 of April
this year, the employer sent a letter to all employees to inform them that the employees
will no longer receive this benefit and they thus have to arrange their own medical aid
st
benefit as from the 1 of June the same year. Hilma is very shocked about this and wants
to know from you whether she should accept this decision of the employer.

2
 Discuss Hilma’s legal position with specific reference to the circumstances in which the
terms of a contract may be altered. (7)

4. Ben has been employed as an Assistant Manager in the storeroom of Namib Mills (Pty)
Ltd. for the past ten years. One Monday the General Manager informs him that an
Assistant Manager is no longer required in the storeroom and that he is to be transferred
to the factory plant as an ordinary worker. He would, however, retain his present salary.
Discuss Ben’s legal position. (5)

Unit 7

1. Mr. Lucky is employed as a technician by MTC. He has worked three hours overtime on
the last Sunday of this month. Mr. Lucky normally works on Sundays. He now wants to
know whether he is entitled to any extra payment for this month and what the amount
would be. He provides you with the following information:

He works five days a week, eight hours per day. In terms of his contract of employment,
overtime shall be paid in terms of the provisions of the Labour Act 11 of 2007. His gross
remuneration for the last month amounts to N$ 15 000. Included in this amount are a
housing allowance of N$ 2000 and a transport allowance of N$ 500. (6)

2. Distinguish between the legal concepts “remuneration” and “basic wage” respectively.
(3)

3. Selma works as a secretary, earning a basic wage of N$ 15 000 per month. Since there
is not much work at the office during the times that her boss is travelling for business
purposes, Selma is often bored without any work to do. Discuss the duty of an employer
to provide work in general. (5)

4. Dina is in the employment of Steady Constructions CC as a secretary. For the past

months Dina had been struggling to make ends meet because of the current economic
struggle. In addition hereto, she undertook to pay for her elderly mother’s medication that
she requires on a monthly basis. She wants to get a loan from Easy Loans (Pty) Ltd,
however, they indicated that they are only prepared to provide her with the said loan if
her employer can deduct the monthly payments from her salary and pay it directly to
them. Discuss in detail whether Dina’s employer is entitled to make this deduction if she
agreed thereto in writing. (Include specific reference to the deductions that are permitted
in terms of the Labour Act 11 of 2007 in your answer.) (12)

5. Mr. Zakaapi recently opened a branch of House & Home in Swakopmund. Since it is a
new store, there is a lot of administration and organization to take care of. Consequently,
he orders his employees to work overtime on 5 consecutive days. The employees have
made others plans and are not happy with this arrangement. In terms of the Labour Act
11 of 2007, certain rules were set with regards to the working of overtime.

5.1 Explain the rules on overtime briefly to the employees of House & Home. (7)

5.2 Suppose the employees of House & Home could be expected to work on
Sundays and Public Holidays. Briefly explain the remuneration payable to such
employees for ordinary work performed on these days respectively. (7)

3
 st
6. Sylvia started working as a domestic worker for the family Jafet on the 1 of April two
years ago on their farm outside Otavi. She works 5 (five) days a week. Advise Sylvia (in
terms of the Labour Act 11 of 2007) on the following aspects relating to her contract of
employment:
6.1 She wants to know whether she is entitled to be provided with accommodation at
her workplace. Describe the duty of the employer to provide accommodation to a
domestic worker on agricultural land. (10)
6.2 The maximum ordinary working hours per day and per week. (2)
6.3 Minimum number of sick leave days. (3)
6.4 Minimum number of annual leave days. (1)
6.5 Is she obliged to work on Sundays and public holidays? Motivate your answer.
(2)

7. Basil recently opened his own restaurant and training academy for chefs and waiters,
known as “Foodies Inn”. He is approaching you for advice on the following aspects:
7.1 When should his employees be granted a meal interval and what is the duration
of such interval supposed to be? (4)
7.2 May he expect from his employees to work on Sundays and Public Holidays?
(2)
7.3 The official closing time of Foodies Inn is 23h00 in the evening, but there are very
often customers busy with their last drinks at closing time. Basil wants to know
whether his employees have the legitimate right to pack up and leave at exactly
23h00. (4)
7.4 The rules applicable to night work. (5)

8. Naomi is working as a cashier at Shop and Safe (Pty) Ltd., Otjiwarongo. She works six
days per week.

Advise Naomi (in terms of the Labour Act 11 of 2007) on the following aspects:

8.1 Maximum ordinary working hours per day and per week. (2)
8.2 Define the term “overtime”. (1)
8.3 Maximum hours overtime per day and per week. (2)
8.4 Payment for working overtime. (2)
8.5 Minimum number of days’ sick leave. (3)
8.6 The rules relating to annual leave. (5)
8.7 Briefly discuss whether the employer is entitled to apply the “no work, no pay”
rule if a public holiday falls on a day on which an employee would ordinarily have
worked. (4)

9. Clara is employed as a chef at Umbamba Lodge. One day, while she is frying food on the
stove, the gas bottle explodes and Clara sustains severe injuries. She would like to know
whether she is entitled to institute a claim against her employer for pain and suffering and
her medical expenses. Briefly discuss. (5)

4
10. Liz, a domestic worker, is in the employment of the Iyambo-family as from 1 January
2000. Upon her appointment, no mention was made of sick -, annual- or maternity leave.
They did agree on the salary; that Liz would work from Monday to Friday from 07:00 until
17:00 and should either party wish to terminate her services, two weeks notice would be
required.

Liz is now expecting her first born and would like the following advice from you (in terms
of the Labour Act 11 of 2007):

10.1 Is she entitled to any maternity leave? Briefly discuss. (5)

10.2 Briefly discuss the rules relating to payment during the maternity leave period.
(2)
10.3 Last week she heard that her sister needs to undergo a kidney transplant
operation in Cape Town. She wants to know whether she would qualify for any
kind of paid leave for this purpose. (4)

11. Mr Hangombe approached you for advice. He and his colleagues have a contract of
employment with the Town of Arandis to clean the streets three times per week. He
informs you that they do not receive annual leave, a transport allowance or other benefits
and that money is deducted from their weekly pay for the days that they do not report for
work, for example on the days that they are sick (even if they produce a medical
certificate) and even for public holidays (Sundays and public holidays are not even
normal working days for them).

Advise Mr Hangombe on the provisions in the Labour Act 11 of 2007 with regards to:

11.1 Period of annual leave entitlement (with full remuneration). (4)

11.2 The duty of the employer to provide transportation to employees when

dismissed. (4)

11.3 The duty of the employer to provide employees with a certificate of employment
and/or testimonial upon termination of employment. (3)

11.4 The employer’s duty to keep records of employees. (4)

Unit 8

1. Miss Curly is a qualified hairdresser working for Salon Smart. Miss Curly needs extra
money to go overseas. To earn this money she starts doing her friends` hair at home
and in her free time.
Briefly discuss whether Miss Curly has breached any of her obligations towards her
employer. (5)
2. Julia had been dismissed for being incompetent from her previous place of employment
where she was employed as a waitress. She has now applied for a job as a seamstress
at The Wedding Shop. Julia wants to know whether she is obliged to reveal the truth
about her employment history during the upcoming interview. (3)

5
Unit 9

1. Linda had been dismissed for misconduct, more specifically for insubordination and/or
insolence, theft and/or fraudulent practice and negligence. The disciplinary hearing was
held and finalised in Linda’s absence. Linda, therefore, contended that she had not been
afforded an opportunity to present her case, in that she had not been served with the
charge sheet nor had she been informed of the date, time and venue of the disciplinary
hearing. She challenged the substance and procedure of her dismissal.

1.1 List the criteria to judge the fairness of a legal process in general. (5)

1.2 Discuss whether the disciplinary action in Linda’s case was fair. (5)

1.3 Briefly explain the rules to follow in order to make sure that a disciplinary action is
regarded as procedurally fair. (10)

2. Julia was an employee of “Juicy Meat” Steak Ranch. On two occasions she had
attempted to steal steaks, but each time she was stopped by the manager before she
could remove the meat. On both occasions she received a verbal warning. On a third
occasion she attempted to steal sauces which were served with steaks. The sauces were
specialities of this restaurant and the recipes thereof are kept secret at all times. When
the manager questioned her, she admitted guilt and was dismissed without a disciplinary
hearing. When she objected to her dismissal because of the absence of a hearing, the
manager argued that a hearing would not have made a difference since she already
admitted guilt.

Is Julia’s dismissal a fair or an unfair dismissal? Explain. (5)

3. At her salon at home, Miss Curly has one assistant in her employment by the name of
Hilma. One Saturday afternoon Hilma was mixing hair dye for one of the regular
customers, when she accidentally spilled some chemicals on a very expensive leather
jacket of one of their customers, Ms. Grumpy, who immediately threatened to sue the
salon to replace her leather jacket.

3.1 Advise Ms Curly on the role of a disciplinary code in the workplace. (5)

3.2 Miss Curly would like to discipline Hilma for this incident. Briefly explain to her the
principle of progressive discipline in the workplace. (7)

3.3 Suppose Hilma was dismissed as a result of this incident. Advise Hilma on the
route to follow to have this issue resolved if she’s of the opinion that her
dismissal was unfair. (3)

Unit 10

1. In January this year the fishing vessel “Kolmanskop” sank within one hour after it had
sailed out of the port of Luderitz after a rope became entangled in its propeller. Seven of
the crew members lost their lives as a result of the sunken vessels’s skipper’s failure to
ensure that the crew was properly instructed in the handling and operation of safety
equipment on board the said vessel. Discuss whether the employer can be held liable for
the negligence of the skipper. (5)

6
2. Kandume, a cleaner at Eenhana Hospital, is accused of having placed a patient, nine-
year old Selma, in boiling hot water, while giving the child a bath on 1 June 2008. The
child died of severe burn wounds a week later.

Discuss whether Kandume’s employer, the Ministry of Health and Social Services, could
be held liable for the loss suffered by Selma’s parents? (5)

3. A secretary, Celeste, is asked by a director of the company she works for to take a client
to the airport in one of the company’s luxury cars. On the way back from the airport
Celeste causes an accident due to her own negligence. Both the company car and the
other person’s car are damaged. Assume that it will cost N$ 5000 to repair the company
car and N$ 6000 to repair the other car.

Can the other owner claim N$ 6000 from the company to have his car repaired? Give
reasons for your answer. (5)

4. George is a truck driver for Easy Movers CC. Discuss whether George’s employer could
be held liable for the damages and/or injuries caused in the following circumstances:

4.1 While on the road to deliver furniture in Swakopmund, he stopped at a filling

station for fuel. While at the filling station, he lit a cigarette and caused a fire in
which a pump attendant was injured. (5)

4.2 On another trip to Oshakati he gave a lift to a hitchhiker just outside Otjiwarongo.
Approximately 10 km north, George fell asleep; the truck left the road and
bumped into a tree. Could the hitchhiker claim from Easy Movers CC for injuries
sustained in the accident? (5)

5. Andrew is working at Texas Farmers’ Co-operative as a representative, selling farm

implements. His remuneration consists of commission of 10% of the selling price of any
item sold. He does not have to go to the office every day; uses his own car to visit clients
and arranges the appointments as it suits him. He only has to submit a monthly report on
all sales at the end of each month. His job description gives him a free hand as to the
manner in which an item is sold. One Saturday morning Andrew meets with a farmer with
whom he has an appointment. The farmer buys irrigation equipment to the value of N$
120 000. On his way back, Andrew negligently causes an accident in which a Mr.
Jackson’s car is damaged and Mr. Jackson is seriously injured.

5.1 Is Andrew an employee in terms of the definition of locatio conductio operarum?

Explain. (4)

5.2 Assume that Andrew is an employee in terms of the definition above and advise
whether Mr. Jackson could sue Texas Farmers’ Co-operative for his medical
expenses and repair costs. (5)

5.3 Assume that Andrew had gone to the farm for a personal visit (not for business)
and the accident took place as described above. Advise Mr. Jackson. (2)

7
6. Ruben is employed as a stock controller by Namibia Liquor Wholesalers (NLW) (Pty) Ltd.
He is conveyed to and from work by an independent driver who has been hired by the
company to transport their workers. The company does not prescribe to the driver the
route he has to take or any stops he has to make; the company only expects him to fetch
the workers at clocking out time and to return them in time for work the following morning.
One morning on their way to work eight of NLW’s workers are injured in a motor vehicle
accident caused by the negligent driving of the driver. Ruben is one of the workers who
have sustained injuries in the accident; he has lost his left leg and suffered a few other
minor injuries.

6.1 Is Ruben entitled to institute a claim against NLW for compensation? Motivate
your answer. (5)
6.2 Would Ruben’s position have been different if the driver had been a colleague of
Ruben in the employment of NLW? (3)