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Social Security Regulations

The following benefits under the Social Security Regulations were increased on 30 July 2010 [Ref. Government Gazette 4530]:

Regulation 10(1)

Sick leave benefits shall be equal to 75 percent of the basic wage of the employee concerned up to the amount of N$ 9 000 per month for the first 6 months of such sick leave and thereafter such employee shall be entitled to an amount equal to 65 percent of his or her basic wage up to an amount of N$ 9 000 per month of such sick leave.

Why the procedure of disciplinary action should receive more attention?

An employee not satisfied with the outcome of disciplinary action is free to apply to the Office of the Labour Commissioner to refer the matter of unfair dismissal to arbitration. The employee as applicant is required to follow the procedure and forms prescribed in the Rules relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner and the Labour General Regulations [Government gazette 4151 dated 31 October 2008]

The arbitration process includes that the appointed arbitrator first follow conciliation procedure to facilitate a settlement, and in doing so determine, inter alia, the facts in dispute, facts not in dispute and what the two parties want.

The right to representation during conciliation and arbitration is limited. This means that the employer may not use a labour consultant or legal practitioner as representative at conciliation and arbitration unless an application was made and it was granted by the presiding arbitrator.

In practice, it seems that such representation is only permitted when the parties agreed that both can appoint a representative of its choice. The debate for representation is a topic for another time.

Basically the manager of the employer will represent the company and will face the trade union official representing the employee, unless the employer is represented by an official of an employers` organisation.

To be proactive in defending a complaint of unfair dismissal the first consideration is to ensure that the disciplinary process was done in a fair manner and that the decision of guilty of misconduct and the dismissal were for a valid and fair reason.

There should be no question that the disciplinary action was fair. It is the duty of the employer to ensure that that is the case, that the evidence of it is properly kept and readily available in an understandable.

Discipline is a line function. The responsible manager, whether it is finance, human resources, operations, manufacturing, procurement or of whatever department must have the skills and information to do this function properly.

Code of Good Practice

-Strikes and Lockouts

-Picketing

On 19 October 2009 the Minister of Labour and Social Welfare published schedules containing codes of good practices pertaining to strikes, lockouts and picketing.

This was done in terms of section 137(1)(a) of the Labour Act, 2007 (Act No. 11 of 2007) by Government Notice 208 in Government Gazette 4361.

Minimum Wage for the Agricultural Industry

If no objection is raised or if objections are dealt with, the minimum wage fro employee on agricultural land from 1 June 2009 will be:

Minimum hourly rate: N$ 2.87

Minimum monthly in-kind benefit: N$ 300.00

Minimum remuneration per month will be N$ 859.61 for employees working a 45 hour working week.

Minimum basic wage rate for overtime, Sunday and Public Holiday payment calculation is N$ 4.41 per hour.

Payment for one hour overtime on Mondays to Saturdays will be N$ 4.41 X 1.5 = N$ 6.61 per hour for overtime worked.

The calculation of compensation for work done on Sundays and Public Holidays will depend on whether it falls on a normal working day or not, i.e. if the work is part of the 45 ordinary hours in a week.

RULE OF LAW

“Free people can assure the blessings of liberty for themselves only if they recognize the necessity that the rule of law shall be supreme and that all men shall be equal before the law.”

Dwight Eisenhower [President of the USA, 1 May 1958] Per : H. Thomas Wells Jr., President, American Bar Association words on Celebrating Lincoln on Law Day: A Great Lawyer-President

The supremacy of the Namibian Constitution and the concept of Rule of Law should also be acknowledged. All legislation in Namibia should conform to the Namibian Constitution.

The English constitutional lawyer A V Dicey conceived the concept of RULE OF LAW.

“... the purpose of rule of law was to protect basic individual rights by requiring the government to act in accordance with pre-announced, clear and general rules that are enforced by impartial courts in accordance with fair procedures... the rule of law requires state institutions to act in accordance with the law.”

Dicey as per Iain Currie & Johan de Waal, The Bill of Rights Handbook, Juta 2005 at page 10.

With reference to labour law principles, the following comes to mind:

a. The need for clear law and by-laws;

b. The need that the law be read, correctly interpreted, understood and applied by those applying law and complying to law;

c. The respect to adhere to the Rules of the Courts, as forum to direct and decide on the protection of rights and not as arena for confrontational action, but rather clarifying and law and rights.

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Access will be granted on received and cleared payments by cheque, electronic transfer or cash to Namibia-law.com. banking details available on request from support@namibia-law.com

The aim of www.namibia-law.com is to make Namibian Law available to the public for research purposes. Legislation is placed on the pages starting from 2008 working backwards towards 1990, plus all Labour Laws, inclusive of Namibian Labour Court cases and common law principles as time goes by.

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