By: John Saunderson
Severance payment to employees is regulated under Section 35 (1) of the Labour Act, 11 of 2007 (“the Act”). The Act sets out three specific instances when an employer must pay severance pay to an employee, namely:
(a) where the employee is dismissed, unless the dismissal was on grounds of misconduct, poor work performance or if the employee unreasonably refuses to be reinstated;
(b) where the employee dies while employed; or
(c) where the employee resigns or retires on reaching the age of 65 years.
- Section 35 (1) of the Labour Act, 11 of 2007
As a condition precedent to receiving severance pay, the Act prescribes that an employee is only entitled to severance pay where he or she has completed 12 months of continuous employment with the employer.
Severance pay to an employee, as a statutory minimum, comprises an amount equal to one week’s remuneration for every 12 months of continuous employment with the same employer.
Where an employee is lawfully dismissed for a valid and fair reason and in terms of a valid and fair procedure a dismissed employee is not entitled to severance pay.
However, where the employee is dismissed on a non-fault basis, such as when he or she is retrenched or dismissed for incapacity due to ill health, an employer must pay severance.
In the case of the death of an employee, his or her family is entitled to receive severance pay from the employer.
In the absence of a will, the employer must pay the severance to the employee’s surviving spouse; or to the employee’s children if there is no spouse; and lastly to the employee’s estate, as outlined in section 35 (6) of the Act.
Under section 35 (1)(c) an employee is entitled to severance pay if at the age of 65, they resign or retire.
- Government Employees and Severance Pay in Namibia
In Namibia, local governments pay severance but other parastatals and central government does not.
Municipalities are local governments and yet they pay severance upon termination of employment contracts other than dismissals as explained.
The Gibeon matter and severance pay upon resignation.
Certain interpretations given to section 35(1)(c) of the Act view the inclusion of the word ‘or’ under section 35(1)(c) to indicate that an employee is entitled to severance pay if the employee resigns, regardless of age.
This interpretation may derive from a reading of the Namibian Labour Court case of Gibeon Village Council vs Uaaka as authority to support the view that any employee is entitled to severance pay upon resignation, regardless of age.
The government policy forces the retirement age to be 60 for employees employed by the government to illegally escape paying severance.
Where does this leave central GRN employees? In terms of the law of natural justice and social justice this is unlawful, and plain just illegal.
“Social justice is the view that everyone deserves equal economic, political and social rights and opportunities..”
Thus, being a payment of monies which directly relates to economic rights, the GRN is clearly and unmistakably violating the economic rights of its employees.
Economic and social rights are human rights that relate to our ability to live in dignity and participate fully in our society. They include rights related to the workplace, social security, and access to housing, food, water, health care and education.
They include the right to fair wages and equal pay; the right to adequate protection of income in the event of unemployment, sickness or old age; and the right to an adequate standard of living.
- International Covenant on Economic, Social and Cultural Rights
ESC rights can be enforced both directly and indirectly under the Namibian Constitution. The direct way would be grounded on the creative device of Article 144 of the Constitution, which reads as follows:
Unless otherwise provided for by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.
Applying Article 144 to the ICESCR, therefore, means that the Covenant – as ratified by the Namibian Parliament – became part of the corpus of law of Namibia on the date it entered into force for Namibia on 28 February 1995.
The construction of Article 144 presupposes that the provisos and entitlements of the ICESCR have direct and immediate application within the Namibian legal system, thereby enabling individuals to seek enforcement of their internationally recognised ESC rights in Namibian courts.
Article 144 thus potentially opens the door for Namibian citizens to appreciate the importance of the world beyond their own country in the definition and enforcement of human rights. Indeed, the Article in question has in the past been relied upon to invoke certain provisions of international instruments binding on Namibia.
For example, in Kuaesa v Minister of Home Affairs & Others, the court held that the African Charter on Human and Peoples’ Rights had become binding on Namibia and formed part of the law of Namibia and, therefore, had to be given effect in Namibia.
GRN, not paying severance to its employees is in clear violation of the Constitutional right and that of the International Covenant on Economic, Social and Cultural Rights to which Namibia is member and has ratified – meaning it is part of domestic law. This issue needs to be addressed and rectified on an urgent basis.
John Saunderson is a labour consultant. The views expressed herein are his own.
