Defining Labour Law

1. Defining Labour Law • Labour Law is a set of principles that regulate a number of relationships in the labour market. These relationships include: • An employer (natural/juristic person) and employee (an individual) • An employer and a large number of employees • An employee and a trade union • An employer and trade unions (bodies that represent employees) • Employers organisations and trade unions

2. Defining labour law continues…………. • The state, employees, employer, trade unions and employer’s organisations.

3. Labour rights as covered under the Namibian Constitution. Labour rights as human rights There exists a nexus between labour rights and human rights. The Namibian Constitution under Chapter 3 consolidates this relationship. Below are critical constitutional provisions that pertains to the said relationship. • Respect for Human Dignity (Article 8). All workers should be treated with human dignity. • Slavery and Forced Labour (Article 9).

4. Labour and the constitution continues…… • Equality and Freedom from Discrimination. (Article 10):Article 10 reads: All persons shall be equal before the law. No persons may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status. This is reinforced by section 5 of the Labour Act. • The significance of art. 10 was discussed in the case of Nanditume v Minister of Defence where Mr Nanditume applied for a job with the Namibian Defence Force and was asked to do an HIV test as part of his medical examination. When his test showed that the was HIV positive, the NDF refused to give him employment. Mr Nanditume took the NDF to court and the court decided that the NDF was discriminating against Mr Nanditume. • The court said that the refusal to employ a person solely on the basis of their HIV status is discrimination in an unfair manner. The court also said that the fact that a person is HIV positive does not mean that such a person cannot work. What is important, the court said, is whether or not a person is qualified and fit enough to do the work that is required.

5. Labour and the constitution continues…… • Children’s Rights (Article 15). Section 3 of the Labour Act reinforces this provisions. Other important constitutional provisions pertaining to Children’s rights are: (art. 20-Education), (art.14-Family) • Other fundamental rights and freedoms include Article 21 and more specifically freedom of association (Art. 21(1) (e) (as reinforced in Section 6 of the Labour Act); freedom to withhold labour without being exposed to criminal penalties. (art. 21(1) (f) as reinforced in Section 6 of the Labour Act: freedom to practise any profession, or carry on any occupation, trade or business (Art. 2(1) (j), apartheid and affirmative action (Art.23)

6. Labour and the constitution continues…… • Remedies for persons whose labour and other rights have been infringed. Article 25(2) of the Namibian Constitution provides that aggrieved persons who claim that a fundamental right or freedom guaranteed by the Namibian Constitution has been infringed shall be entitled to approach a competent court to enforce or protect such right or freedom. Article 25(4) of the Namibian Constitution provides that the power of the court shall include the power to award monetary compensation in respect of any damages suffered by the aggrieved person in connection with such unlawful denial or violation of their fundamental rights and freedoms, where it considers such an award to be appropriate in the circumstances of a particular case. Thus a person who is unlawfully arrested and/or imprisoned is entitled to be compensated.

7. Labour rights under the constitution continues….. Other important constitutional provisions that pertains to labour rights viz 18 (Administrative fairness), 12 (fair trial) will be discussed infra.

8. Criteria for justice • Criteria for justice include: • Similar cases must be treated in a similar manner. This is called Stare Decisis. Stare decisis Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar current or future case. Stare decisis ensures that cases with identical facts be approached in the same way, unless overruled by the same court or a higher court. • Article 12 of the Namibian Constitution states that all persons shall be entitled to a fair and public hearing by an independent, impartial and competent Court or Tribunal established by law; • All persons shall be afforded adequate time and facilities for the preparation and presentation of their defence, before the commencement of and during their trial, and • Shall be entitled to be defended by a legal practitioner of their choice. • Adherence to the rules of natural justice.

9. Criteria for justice continues. • In S v Kau1995 NR 1 (SC) and others, the defendants were convicted in a magistrate's court of illegally hunting a giraffe. The magistrate did not tell MrKau and the others that they had the right to be represented by a lawyer of their choice. The Supreme Court held that this meant that they did not receive a fair trial. The Supreme Court held that every person has the right guaranteed by Article 12(1) (e) of the Constitution to be represented by a lawyer of their choice. A person who appears in court should therefore be informed of this right. The only exception to this rule is when it appears that the person already knows that he or she has this right. For example, a lawyer appearing in court would know of this right. For this reason and other irregularities during the trial, the Supreme Court canceled the conviction and sentence of MrKau and the other persons.

10. Rules of natural justice • The Constitution of the Republic of Namibia deals with administrative justice in two of its Articles. The first is Article 18, which requires that administrative bodies: – “shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation … “ The second is Article 5, which contains the fundamental obligation enshrined in modern constitutionalism. According to this obligation, the three organs of the state – including the executive, therefore – are obliged to respect and uphold the fundamental rights and freedoms spelled out in Chapter 3 of the Constitution.

11. Rules of justice continues…… The basic principles in terms of which disputes have to be heard are known as the common law rules of natural justice and these rules are: • Audi partem rule: The Latin maxim audi alteram partem, one of the most cherished and sacrosanct principles of law, has evolved from three simple Latin words to mean that no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person.

12. Rules of natural justice continues…. • Nemo iudex in sua: Another rule of natural justice is the Nemo iudex in sua. The Latin term for the second limb of the rules of natural justice or procedural fairness whereby the potentially biased are disqualified from participation: “No one ought to be a judge in his or her own cause.”

13. Distinction between criminal and civil proceedings Civil Cases • A civil case begins when a person or entity (such as a corporation or the government), called the plaintiff, claims that another person or entity (the defendant) has failed to carry out a legal duty owed to the plaintiff. Both the plaintiff and the defendant are also referred to as "parties" or "litigants." The plaintiff may ask the court to tell the defendant to fulfill the duty, or make compensation for the harm done, or both. Legal duties include respecting rights established under the Constitution or under any piece of legislation.

14. Distinction between criminal and civil proceedings continues………. Examples of what Civil Law deals with are: • Marriage and divorce • If someone owes you money • Rent agreements • Evictions • Damage to property • Injury to people • Disputes over a hire-purchase agreement, etc.

15. Civil and criminal proceedings continues… Criminal Proceedings In a criminal case, the state prosecutes the accused person, for committing a crime or breaking the law. If the court finds the person guilty, the person can be sent to prison, fined or punished in some other way. Examples of different crimes and breaking the law are: • Assault • Trespass • Public violence • Money laundering, etc.

16. Appeal and review Appeal With an Appeal you can challenge the court’s decision by appealing it at a higher court than the one that passed the verdict. An appeal is a plea for the matter to be judged again. An appeal is requested to ask the higher court to change the decision of the lower court. the focus is on the result of a trial. The decision of the lower court can stay the same or the Higher Court can change it.

17. Review A review is not a statutory right of the people and is at the discretion of the court, which can reject the request.  A review is applied for at the same court where the original decision was made and  is a request to consider the legality of the ruling. A review is based on procedural irregularity, impropriety, irrationality, and illegality.

18. Identifying the employment contract • Who is an employer? Common law by deduction, an employer at common law is any person-natural or legal who has entered into a contract of employment with a natural person who has contracted to render his personal service to this other person. Statutory Definition

19. Identifying the employment relationship continues…… • section 1 of the Labour Act 2007 provides: • ‘employer’ means any person, including the State who- • (a) emplys, or provides work for, an individual and who remunerates or expressly or tacitly undertakes to remunerate that individual; • (b) permits an individual to assist that person in any manner in the carrying on or conducting that person’s business;

20. Identifying the employment relationship continues…… • In terms of s. 1 of the Labour Act 2007, ‘employer’ includes a natural person, a legal person or the State. ‘State’ should be understood to mean any organ of State and agents of those organs, including parastatal organisations, regional councils, local authority councils and their representatives. Presumption as to who is an employee • Section 128A provides that an individual who works for or renders a service to any other person, is presumed, until the contrary is proved, to be the employee of that other person if any one or more of the following factors is present:

21. Identifying the employment relationship continues…… • The manner of work is subject to the control of that person; • The hours of work are subject to the control or direction of that other person; • The individual’s work forms an integral part of the organisation; • The individual’s work forms an integral part of the organisation; • The individual has worked for that other person for an average of at least 20 hours per month over the past three months; • The individual is economically dependent on that person for whom a/he works or renders services to;

22. Identifying the employment relationship continues…… • The individual works or renders services to that other person; • Any other prescribed factor. Deeming individuals as employees Section 128B further allows the Minister, subject to certain conditions, to deem any individual to be an employee for the purposes of the Labour Act. Identifying the contract in terms of the common law

23. Identifying the employment relationship continues…… • The main characteristics of the contract of employment and work acceptance are set out in Table 2, page 60 in your study guide.

24. Different tests to apply to identify the type of contract of service in terms of the common law. The Supervision and Control Test this approach states that the higher the degree of supervision and control that the alleged employer exercises or is allowed to exercise over the work of the alleged employee and over the manner in which the latter performs his work, the stronger is the indication that such a person is an employee or a servant. In the case of De beer v Thompson and Son it was held that certain elements in the employer and employee relationship might raise the probability that a person is an employee, but certain employee relationship might raise the probability: today the most important element seems to be the question of control.

25. Different tests to apply to identify the type of contract of service in terms of the common law continues…. The organisation or integration test The approach underlying the organisation or integration test is that a person is an employee if he is integrated into the enterprise or business. those who are sufficiently integrated into the enterprise or business are employees; those who are not so integrated are not. In the case of Bank voor Handel enScheepvaart NV v Slatfordand Another, it was held that ‘the test of being a servant does not rest nowadays on submission to orders. It depends on whether the person

26. Different tests to apply to identify the type of contract of service in terms of the common law • Is part and parcel of the organisation’. The proprietary Test According to the proprietary test, it is more likely than not that the person who has ownership of the assets of the business and bears the financial risk of the business is not an employee of the enterprise: such a person is carrying on the business as his own account. It has, therefore, been held that a director of a company, who held al lthe shares in a company, except one, was not an employee unless he had a service contract with the company. Accordingly, in Boulting v Association of Cinematograph, Television and Allied Technicians, Lord Denning, MR refused to accept the claim that the joint managing directors of a company were employees.

27. Different tests to apply to identify the type of contract of service in terms of the common law The Dominant Impression Test the essence of the dominant impression test is this: Where the relationship has indications tending to show the existence of employer-and-employee relationship and some other relationship, one must, considering all the facts, endeavour to determine which sort of relationship comes off best, or what ‘dominant impression’ such a contract leaves on one’s mind. The Multiple Test

28. Different tests to apply to identify the type of contract of service in terms of the common law • Under the multiple test, what are seen to be relevant indicia are considered in relation to the particular situation, and the court embarks upon the exercise of balancing the various indicia against one another to determine what weight ought to be attached to each one of them. The Court in Morren v Swinton and Pendlebury Borough Council applied the multiple test in order to reach the conclusion that a resident engineer appointed by a local authority and who worked under the instructions of a firm of consulting engineers, was an employee of the local authority.

29. Requirements for a valid contract of employment An employment contact can be written or unwritten. Where issues of confidentiality exist or an employer wishes to protect itself against future competition from a former employee, it is preferable to execute a written contract. A written contract can also set out what constitutes reasonable notice on dismissal. Consensus The parties must have corresponding intentions regarding the proposed contract and the serious intenion of concluding the contract.

30. Requirements for a valid contract of employment continues….. Contractual capacity The parties must have the necessary capacity to form a legally recognised intent. Age is a factor in concluding a contract. Other crucial factors that diminish contractual capacity include mental illness and intoxication. Moreover, a child under the age of 7 (seven) and an insane person and an intoxicated person have no capacity to act. Lawfulness legality: The contract must be lawful and not contrary to the common law / statutory rule of law / public policy / good morals.

31. Requirements for a valid contract of employment continues….. Possibility of performance Physical possibility or possibility of performance: The performance must be determinded or determinable and objectively possible. Formalities A contract must comply with any formalities precribed by law or agreed by the parties. Formalities refer to the external visible form of the contract.

32. Child Labour restrictions What is child labour? The term “child labour” is often defined as work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development. It refers to work that:is mentally, physically, socially or morally dangerous and harmful to children; and • interferes with their schooling by: • depriving them of the opportunity to attend school; • obliging them to leave school prematurely; or • requiring them to attempt to combine school attendance with excessively long and heavy work

33. Child Labour restrictions continues…. Under section 3 of Namibia’s Labour Act a child under the age of 14 years may not be employed or permitted to work in any circumstances. The Act restricts not only the age at which children may be employed, but also regulates their working conditions. The aim of the statute is not only to protect children from abuse, but to ensure that their legal obligation to attend school until the age of 16 years is adhered to. Children of 14 years to 16 years may not be employed or required to work-

34. Child Labour restrictions continues…. • (i) in circumstances prohibited in article 15 (2) of the Constitution i.e work that may be hazardous or be harmful to his/her health or his/her physical, mental, spiritual, moral or social development or interfere with his/her education; • (ii) between the hours 20h00 and 07h00; • (iii) except in circumstances where the Minister permits, on premises where the work is done underground or in a mine, were construction or demolition takes place, goods are manufactured, electricity is generated, transformed or distributed, or machinery is installed or dismantled.

35. Child Labour restrictions continues…. • A child of 16 years but under the age of 18 years may not be employed in circumstances set out in sections (ii) and (iii) above unless permitted by the Minister. • Any person who permits or requires a child to perform work prohibited by the Act may be fined a maximum of N$20.000.00 or sentenced to imprisonment for a period of up to four (4) years or both to such fine and imprisonment.

36. Commencement and duration of a contract of employment • An employment relationship is established on the basis of conclusion of an employment contract or by appointment. • An employment relationship shall exist for an indefinite term unless its specific term has been explicitly arranged. • An employment relationship between the same parties for a fixed term may be arranged for a term not exceeding three years from the date of commencement of the employment relationship, and the employment relationship may not be renegotiated or extended more than twice; this also applies to each additional employment relationship for a fixed term agreed within the mentioned period by and between the same parties. After expiry of three years of termination of the preceding employment relationship for a fixed term, that employment relationship for a fixed term is further disregarded.

37. Termination of a contract of employment Termination not based on Notice Expiration of Contract • As a general rule, where an employee is engaged for a specific period expressed in his contract of employment, the contract comes to an end at the end of that period, i.e by effluxion of time. The contract comes to an end automatically, and, therefore, there is no need for notice to be given.

38. Termination of a contract of employment continues…. Performance of contract Where a contract of employment has been entered into solely for the carrying out of a specific task, the contract comes to an end upon completion of the task. In such a case, there is clearly no need for notice to be given to end the contract of employment since logically there is simply no more service to perform. As a result of Supervening Impossibility

39. Termination of a contract of employment continues…. • If performance becomes impossible owing to some supervening event not due to the action or omission of either party, the contract may be discharged. Therefore, if either the employer or the employee is prevented from performing his obligation under the contract due to vis major or caususfortuitis, a party is entitled to terminate the contract. As a result of employees' sickness or incapacity

40. Termination of a contract of employment continues…. • As a general rule, the sickness or incapacity of an employee can discharge the contract of employment. The employer’s right may be governed by the express term of the contract, under which, for instance, the employer may have the right to cancel the contract,if the employee is absent from work due to sickness or incapacity for a certain period of time.

41. Termination of a contract of employment continues…. By death and other causes The death of either the employee or the employer terminates the contract of employment by operation of law. see section 32(1)(a)(i) to 32(3). By sequestration The labour Act of 2007 governs termination of a contract of employment, which is subject to the Act, when the employer is sequestrated. See section 32(1)(a)(i) to 32(3). By Repudiation

42. Termination of a contract of employment continues…. • An express or implied of contract of employment by either party will entitled other party to terminate the contract. Termination by notice or without notice Termination by notice An employment relationship can be terminated by notice by the employer or by the employee. The notice need to be in writing. The reasons for notice cannot be changed later. Termination without notice

43. Termination of a contract of employment continues…. • In terms of s.30(6)(b) of the Labour Act 2007, either the employer or the employee is entitled to terminate a contract of employment without notice for any cause recognised by law.

44. Vicarious Liability • - Regulated by common law; • - Based on considerations of public policy; • - Employer is liable for the unlawful and delictual acts of an employee performed during the course of business. • - Does not mean employer will have no recourse against employee – depending on the circumstances, employer can discipline the employee for misconduct and even claim repayment.

45. Vicarious Liability • In order for an employer to be held vicariously liable, 3 requirements must be met: • -There must be a contract of employment; • Employee must have acted in the course and scope of employment, and • The employee must have committed a delict (an intentional or negligent unlawful act or omission by an employee causing a third party to suffer damages or personal injury). • In Viljoen v. Smith it was held that Each case must be considered on its own merits. The fact that the act of an employee was expressly forbidden by the employer, or constituted a criminal act, will not always absolve the employer from being held vicariously liable for the employee’s wrongful actions.

46. Vicarious Liability In the case of BezuidenhoutNO v ESKOM: (ESKOM truck accident) the facts were as follows: Employee provided with a company truck marked as ESKOM property for purpose of carrying out its duties. Employee expressly prohibited from giving lifts to any person without permission of employers. Employee offered to lift a hitch-hiker and along the way negligently caused an accident during which the passenger suffered severe head injuries. Held, instruction not to carry passengers placed a limitation on the scope of employment – employer was not vicariously liable: • Driver knew he was prohibited from giving lifts and had no intention of furthering his master’s affairs by doing so; • Presence of passenger added nothing to the interest of the employer in the proper administration of its service.

47. Restraint of Trade Restraint of Trade Purpose of restraint-of-trade agreement is to protect the employer’s trade secrets, goodwill and business connections. It prevents an employee from competing with his employer within a defined area and for a prescribed period. Court must balance the following: • The public interest, which requires parties to comply with contractual obligations even if these are unreasonable or unfair Vs • The right of all persons to be permitted as far as possible to engage in commerce or the professions of their own choice

48. Restraint of Trade In Magna Alloys & Research SA (Pty) Ltd v Ellis: (Restraint-of-trade) In this case the Court had to balance competing interests of employee and employer. HELD, restraint-of-trade agreement is valid and enforceable unless it is contrary to public policy, which it will be if it is unreasonable. Reasonableness will be determined with reference to interests of both employer and employee, public policy and surrounding circumstances. Court to consider: • Is there an interest deserving of protection at the termination of the agreement? • Is that interest being prejudiced? • How does that interest weigh up against the interests of the other party not to work? • is there another facet of public policy which requires that restraint should either be enforced or disallowed? • Is the restraint wider than is necessary to protect the protectable interest?

49. Restraint of Trade continues….. • An employer who unlawfully terminates a contract of employment containing a restraint clause should not be allowed to benefit from that restraint.

50. DUTIES OF EMPLOYER • To remunerate employee: (Primary duty) Employers are duty bound to pay employee - “no work, no pay” • To provide employee with work: Employer not required to provide employee with work except where: • commission-based, • dependent on actual work done, • employee’s success depends on the performance of certain duties on a regular basis eg. actor