Labour laws in general recognise different types of termination of employment on one side by the employer and on another side by an employee in an employment contract. 

These types of termination of employment are the following: 

Termination of employment by agreement like in the case of a fixed term contract where both parties agree in advance to terminate the employment at a specific date. 

Termination of employment by operation of law like when an employer or the employee dies or by operational requirements like in case of retrenchment. 

Termination by the employee to willingly leave employment which is done by way of resignation and termination of employment by an employer normally for misconduct, incapacity, ill-health including poor performance on the side of the employee. 

However, there is another method of termination of employment by the employee which is not much talked about and that is the termination of employment by the employee, because of an uncomfortable situation or circumstances that force an employee to leave his/her employment and claim compensation from the employer through Alternative Dispute Resolution (ADR) usually at the labour commissioner’s office whereby an employee would claim that he/she was forced by certain conduct of an employer to resign his/her work because the conduct or behaviour of an employer becomes intolerable.

This is what we call constructive dismissal and it has a remedy to the employee after tendering his/her resignation and thereafter referring his/her dispute to the office of the labour commissioner for relief.

Constructive dismissal is defined as a situation whereby an employee resigns with or without notice and claims that his/her resignation was because the employer made it intolerable for him/her to remain in employment, however, such an employee has a burden of proof to show that he/she did not wish to terminate employment relationship, but was driven in doing so by the employer.

The labour commissioner through a conciliator/arbitrator is then required to determine the true intention of resignation by the employee by performing a test objectively whether the employee indeed had no reasonable alternative to stay on the job and that termination of the contract was not done voluntarily. 

Judging from the provisions of section 5 of the Labour Act 11 of 2007, it classified constructive dismissal among prohibition of discrimination and sexual harassment in employment perpetrated by the employer against an employee which made the employee resign as a result of sexual harassment and which resignation constitutes constructive dismissal.

In terms of those provisions, constructive dismissal is viewed as unfair dismissal as highlighted under section 33 of the Labour Act and thus it entitles an employee to remedies available to him/her through appropriate forums like in ADR and the labour court.

But why have Namibian lawmakers narrowed constructive dismissal to conduct or behaviour of sexual harassment by an employer only as opposed to a wider spectrum to include all unfavourable working conditions of employment by the employer that makes an employee despise his/her work compared to other jurisdictions such as the South African Labour Relations Act of 1995?

Section 9 of the Namibian Labour Act provides that any law regulating the employment of individuals in an employment contract should be more favourable to the employee. That means if an employee works for a business that got transferred to new management whereby he/she was on good terms and conditions of employment e.g. used to work five days a week and such business under new management requires an employee to work for six days a week instead of previous five days and the employee’s salary is reduced, if such an employee found such working terms and conditions to be unbearable or less favourable than under the previous employer and resigns from such employment then such termination of employment will constitute constructive dismissal. 

Thus, a broader definition of constructive dismissal is desired in the Labour Act to protect the job security of employees in the ordinary course of business. 

* Lucas Tshuuya is a labour expert from Onaanda in the Uukwambi district. Find him at tshuuya@iway.na