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Home / Opinion - Administrative justice and action in Namibia … a case law of NSFAF CEO

Opinion - Administrative justice and action in Namibia … a case law of NSFAF CEO

2022-09-23  Staff Reporter

Opinion - Administrative justice and action in Namibia … a case law of NSFAF CEO

Lucas Tshuuya 

The right to administrative justice is guaranteed in the Namibian Constitution under Article 18, which requires administrative bodies and administrative officials to act fairly and reasonably – and it should comply with requirements of relevant legislation and common law.

Persons aggrieved by their actions shall have a right to approach competent courts or tribunals for redress. 

Under Article 5 of the Constitution, persons’ fundamental rights and freedoms should be respected by executive, legislature, judiciary and by all government agencies as well as natural and legal persons. 

It is mind-boggling when some governmental agencies and juristic persons decide to abuse/exploit their power under the guise of employers’ rights under the Labour Act 11 of 2007. 

The relationship between an employer and employee is a contract of employment between them with both parties undertaking to honour and respect the relationship between them, with an employee hiring out his/her services in exchange for payment by the employer. 

The Labour Act prevents an employer from dismissing an employee without substantive and procedural fairness. 

The case in point is the NSFAF CEO, who on 15 July 2021 was found by an Arbitrator that her dismissal was invalid and unfair, because the employer, NSFAF, failed to follow correct procedures as highlighted under section 33 of the Labour Act.

The Arbitrator’s award called for the reinstatement of the NSFAF CEO, and it triggered NSFAF to note an appeal on 12 August 2021 to appeal the entire Arbitrator’s award, based on the provisions of section 89 of the Labour Act, which allows a party to a dispute to appeal to the Labour Court against an Arbitrator’s award, made on any question of law alone, the question of fact and law or mixed fact and law.

Section 89 further provides that a party who alleges a defect in any arbitration proceedings may apply to the Labour Court for an order setting aside such an award.

This is where all hell broke loose because many employers abuse provisions of section 89 to frustrate vulnerable employees in subservient positions even though they do not have valid reasons.

In casu, if one looks at the material facts of this matter, it has elements of unfair labour practices by NSFAF, as they relied on flimsy reasons to dismiss the CEO inter alia that around 2016, there was a grievance lodged by middle management against the former CEO because of her apparent leadership style – and despite her being exonerated of wrongdoing by investigation, NSFAF stressed that by reinstating her into her former position, it would propel chaos.

If one gauge the reasons relied on by the board of directors of NSFAF to summarily dismiss a CEO without hearing her side as a constitutional requirement (audi alteram partem rule), then we must accept that we have a serious bankruptcy of corporate good governance in the country, as decisions are taken capriciously.         

Several labour dispute matters dragged on for so long after Arbitrators awards with many employers, because of financial sound abusing the provisions of section 89 if they do not want to accept the Arbitrators award –well knowing that most employees, after they are dismissed, they would be unable to pay for legal costs.   

Section 89 provisions are somewhat militating provisions of section 86 of the Labour Act, which prohibits legal practitioners to involve in labour disputes resolutions for fear of prejudicing poor employees and only allows them in exceptional and complex matters after both parties consented thereto, and that their involvement will not prejudice vulnerable employees. 

The provisions of section 86 are reasonable and fair because many employees cannot afford legal costs after dismissals.

The aim of the Labour Act is to protect employer/employee labour rights; therefore, the provisions of section 89 should be reviewed because they are open to abuse by employers, who vowed to suppress their employees, knowing they are not on equal footing. 

When employers are allowed to appeal Arbitrators’ award, such practice paves the way for executive abuse of power because of inequality, as many employees will cope with protracted labour disputes and subsequently lose out on cross-appeals by those employers who use money as a tool to frustrate poor employees.

Thus, it is recommended that section 89 be amended to serve the best interests of employees, and appeal should be approved only in exceptional cases, where it can be seen that the Arbitrator has vitiated or misdirected him/herself, or irregularities occurred during arbitration proceedings.

Lastly, the relevant minister should provide directions in terms of section 89 (11) to protect employees’ interests from abuse of power by employers who think money can buy justice as currently can be abused to suppress poor employees who are unfairly dismissed by their employers against their inalienable rights that cannot be usurped. 

*Lucas Tshuuya is a Labour Law graduate from the University of South Africa. 


2022-09-23  Staff Reporter

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