NAMIBIA Law and Practice Contributed by: Nadine van Schalkwyk, Ralph Strauss, Bonita R de Silva, Ivo dos Santos, Chrissie Turck, Jané Louw, Nicole Freygang and Natasha Nekuta, Dr. Weder, Kruger & Haikali Inc.
4.2 Characteristics of Employment Contracts In Namibia, employment contracts are governed by both common law and the Labour Act 11 of 2007 (the “Labour Act”). Under common law, a contract con - cluded verbally is considered legally valid. However, the Labour Act requires employers to give employees written particulars of their employment, which shows a strong preference for written contracts. Written agree - ments are clearer and help prevent disputes about the terms that were agreed upon between the parties. The Labour Act also regulates the duration of contracts of employment. Contracts may be set for a fixed term, such as for a specific project or time period, or they may be indefinite, continuing until either the employer or employee legally ends the agreement. 4.3 Working Time The Labour Act does not expressly prescribe minimum working hours and only provides for the maximum number of working hours applicable in terms of Sec - tion 16 (1) of the Labour Act. Ordinary hours in terms of this Section may not exceed forty-five (45) hours per week. Employees who work five days a week may work a maximum of nine hours per day, while employ - ees who work more than five days a week may work a maximum of eight hours per day. Different limits apply to essential service employees, such as security guards and emergency healthcare workers, who may work up to sixty (60) hours per week, with twelve (12) hours per day for employees who work for five days a week and ten hours per day for employees who work for more than five days per week. Employees engaged in continuous operations may work twelve (12-) hour shifts, subject to approval by the Minister of Justice and Labour Relations. Overtime work is regulated by Section 17 of the Labour Act. An employer may only require or permit overtime by agreement with the employee. Overtime may not exceed ten (10) hours per week or three (3) hours per day. Employees must be paid at least one and a half times their hourly basic wage for overtime worked and at least double their hourly basic wage for overtime worked on Sundays and public holidays, should they ordinarily work on Sundays and public holidays.
4.4 Termination of Employment Contracts Namibia is not an “employment at will” jurisdiction, meaning employment contracts may only be terminat - ed lawfully, for a valid reason, and in accordance with fair procedure, failing which termination may amount to unfair dismissal or breach of contract. Employment may be terminated through the expiry of a fixed-term contract, resignation, dismissal (for misconduct, incapacity, or operational requirements), or constructive dismissal, and in most cases, notice must be given except where a fixed term expires. Upon termination, employees are entitled to pay - ment of all outstanding remuneration and accrued but unused annual leave, and may also qualify for severance pay under Section 35 of the Labour Act, which provides for one week’s remuneration for each completed year of continuous service for employees with more than twelve (12) months’ service, subject to statutory requirements. Collective redundancies are regulated by Section 34 of the Labour Act, which requires employers to give at least four weeks’ written notice to trade unions, employee representatives, or affected employees, as well as the Labour Commissioner, and to engage in good-faith consultation on the reasons for retrench - ment, alternatives to dismissal, measures to minimise job losses, selection criteria, timing and conditions of dismissal, and ways to address adverse effects. Employers must disclose all relevant information for meaningful consultation, and while consultation is mandatory, agreement with unions is not required, provided that selection criteria are fair and objective, and retrenched employees may also be entitled to severance pay where the statutory requirements are met. 4.5 Employee Representations Employee representation is not automatically manda - tory in all workplaces in Namibia. However, the Labour Act grants employees the right to organise, be repre - sented, and be consulted through elected representa - tives and registered trade unions. Employee repre - sentation is generally triggered where employees are members of a registered trade union operating within the workplace.
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