The Namibian (Windhoek)

15 January 2013

Namibia: Ex-Employee Loses Case Against Namrights

A CLAIM for more than N$140 000 which a former employee of human rights organisation Namibia Rights and Responsibilities lodged against NamRights in the Labour Court in Windhoek was dismissed yesterday.

The Labour Court does not have the jurisdiction to deal with the dispute between former NamRights employee David Kamati and NamRights without Kamati having followed the procedures in the Labour Act to have the dispute referred to the Labour Commissioner for arbitration first, Judge Kato van Niekerk ruled in the judgement in which Kamati's case against NamRights was dismissed.

If Kamati was unhappy with the manner in which the Labour Commissioner dealt with the dispute, he should have opted to ask the court to review the Labour Commissioner's decisions - something which Kamati expressly declined to do, the judge said.

Kamati sued NamRights for a total of N$140 516, which he claimed was owed to him in outstanding salary and as notice and severance payment after his employment with NamRights was ended in August 2011.

Kamati claimed he was unfairly dismissed after having been employed with the human rights organisation for nearly six and a half years.

He referred a dispute about his alleged unfair dismissal to the Labour Commissioner six days after his employment with NamRights was, according to him, terminated without a valid and fair reason and without a fair procedure having been followed.

The Labour Commissioner, after having been informed by NamRights executive director Phil ya Nangoloh that Kamati was not dismissed, refused to set down the matter for a hearing, Judge Van Niekerk recounted.

According to Ya Nangoloh, Kamati was ill and he sent him home to get medical treatment and to recover before he was to be allowed to continue with his work for NamRights.

Kamati complained that the Labour Commissioner refused to schedule a hearing for the matter. Kamati then decided to file an urgent application with the Labour Court, asking the court to order NamRights to pay N$140 516 to him.

Kamati's claim arose from a dispute about the alleged contravention of the part of the Labour Act dealing with basic conditions of employment, Judge Van Niekerk noted.

In terms of the Act, such a dispute may be referred to the Labour Commissioner, who must refer it to an arbitrator to resolve the dispute through arbitration.

The Labour Act significantly does not expressly provide that the Labour Court may exercise its powers as a court of first instance, the judge remarked. The Act does not expressly extend the court's jurisdiction to include the power to hear disputes relating to con-compliance with the part of the Act dealing with basic conditions of employment, she also noted.

She found that in terms of the Act the Labour Court may only grant an urgent interdict pending resolution of a dispute which had been referred for arbitration.

She stated: "It seems to me that it would run counter to the objects of the Labour Act for the Labour Court to allow an employee to sidestep express provisions of the Act and to approach the court directly to resolve a dispute with his employer which should have been done in terms of the (arbitration procedure)."

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