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Unions fear massive job losses… as court declares Govt proclamation unconstitutional

2020-06-24  Maria Amakali

Unions fear massive job losses… as court declares Govt proclamation unconstitutional
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Unionists believe there would be significant job losses in the next weeks across all sectors of the economy after the Windhoek High Court yesterday declared a government proclamation, which sought to forbid retrenchments and salary cuts of employers during the state of emergency, as unconstitutional and invalid.

Metal and Allied Namibian Workers Union (Manwu) secretary general Justina Jonas said she foresees a wave of mass retrenchments over the coming weeks. She said the judgement has opened the door for employers to take advantage of the situation. 
“Employers must be ready to avail their financial records to clearly state they have been really affected by the pandemic. Because we have already seen some employers taking advantage of the situation when they were not really affected,” said Jonas. 
She further indicated that employers who want to retrench should adhere to the Labour Act concerning compensation. 
Kavihuha Mahongora from Trade Union Congress of Namibia (Tucna) said the judgement is a huge blow and slap in the face of employees and is in favour of business. 

“This judgement has highlighted how incompetent the attorney general and minister of justice are and they should be dismissed. How can they advise the President and formulate regulations that do not conform with the constitution?” noted Mahongora. 
Labour expert Herbert Jauch said the judgement only brought to the fore what is already known in the industry – that employees are not protected. “This ruling has only opened the door wider and clearly encourages employers to retrench their employees much more easily than ever before. This is really a regrettable judgement,” said Jauch. 

In May the Namibia Employers’ Federation, Namibia Employers Association and five others instituted legal action against the head of state, attorney general, minister of labour, minister of health and eight others. The group claimed that President Hage Geingob exceeded his powers when he set aside the Labour Act provisions and issued proclamations that it would be an offence if any employer dismissed their employees, reduced their salaries, forced them to take unpaid leave or refused to reinstate them under certain conditions because their businesses were affected by the ongoing Covid-19 pandemic. If found guilty of such offence the employer is liable to pay a fine not exceeding N$10 000 or imprisonment not exceeding two years. 

The group claimed that Regulation 19 of Proclamation 16 and Regulation 12 of Proclamation 18 were unconstitutional as they impugned the already existing Labour Act. 
They further claimed that the head of state acted irrationally and unreasonably as his actions weakened and eroded the processes of the Labour Act. President Geingob made the proclamations on 28 April and 4 May. 
In their affidavits, the group argued that employers were likely to face legal action from employees who would be demanding their jobs back as a result of the proclamations by the State. 

Furthermore, the group claimed that their businesses might face insolvency if they are forced to take back and not retrench employees, force employees on unpaid leave or cut their salaries. 
“The fact of the matter is that an employee is much worse off if his or her employer is liquidated or sequestrated – that he would have had his job saved through the implementation of sections 12(6) or 23(5),” argued the group. 
The group further argued that not only do employers want to save and restore their businesses but also want to maintain a relationship with the employees.
Judges Shafimana Ueitele, Thomas Masuku and Hannelie Prinsloo presided over the matter. 

2020-06-24  Maria Amakali

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