Labour Act vs Public Service Act

0
205

Why does the Public Service Act provide for a different retirement age when it comes to public servants?
The Government of the Republic of Namibia is regarded as a sector that is the largest employer in the country. The public sector employees like any other employees in the county are protected and subject to the Labour Act No. 11 of 2007, which offers basic conditions of employment. These employees are further governed by the Public Service Act No. 13 of 1995.

The Labour Act has set the retirement age of all employees in Namibia at 60 in order for a retired or resigned employee to receive severance pay. On the other hand the Public Service Act provides for employees in the public sector to resign mandatorily at the age of 60, without receiving severance pay.

The Public Service Act specifically states that any staff shall retire from public service on attaining the age of 60 years. This is mandatory and is applied as a general rule.

The Act further says that when an employee retires he/she will no longer receive a salary. It also explains that as a member of GIPF (Government Institutions Pension Fund) he/she will have made monthly pension contributions to GIPF throughout his/her working life in the public service. Such employee shall then start receiving pension payouts from the fund. Thus every public servant appointed in a permanent post automatically becomes a member of the GIPF from the first day of his/her appointment.

The retirement age of public servants is contained in the GIPF rules that state a member may retire from service upon reaching his/her normal retirement age (normal retirement age in this case refers to retirement at 60 years).

Both the Public Service Act and the GIPF rules notably show that civil servants are to retire upon reaching the age of 60 years.
If the employer which is the government has a rule that states that government employees can only be in employment until they reach the age of 60 years, and their contracts of employment are ended by their employer, why are they not entitled to severance pay? Is it because they benefit from the GIPF payout to which they have made monthly contributions throughout their employment?

Section 35 of the Labour Act states that severance pay will not be paid if the employee is fairly dismissed on grounds of misconduct or poor work performance, or if the employee unreasonably refuses to be reinstated or the employee unreasonably refuses to accept employment on terms no less favourable than those before termination. As a public servant one will argue that you are in fact relieved from your duties by the employer when you reach 60 years of age, which will amount to being dismissed by the employer.

Dismissal in a labour context will mean termination of employment by an employer for whatever reasons. Therefore dismissed employees are entitled to severance pay unless fairly dismissed on grounds of misconduct or poor work performance. When public servants are retired at the age of 60 years, is it because they have become unproductive (which may lead to poor work performance?) or what is the reason really behind the mandatory rule of retiring them at 60 years.

The question then I ask is why are civil servants not entitled to severance pay, when the contract of employment is ended by the employer?

Is the exclusion from severance pay discrimination towards civil servants?
Clearly, the absence of retirement legislation in Namibia is creating confusion as to when an employee should go on retirement. This is so because the old age pension payout starts at the age of 60 years. Some employers have accepted the fact that when an employee reaches 60 years, then they should go on retirement. All these considerations are perhaps the reasons behind the mandatory retirement of civil servants.

Then again, I argue that if termination of contract of employment emanates from the employer, then the affected employee should be paid his/her severance pay because they do not go on retirement because they so wish to, but because there is a rule that states so.
We have two laws which govern employment relations between employee and employer and they talk about the same thing but in different ways. One will conclude that the Labour Act intends for retirement to be at the age of 65 years while the Public Service Act wants employees working in the public sector to retire at the age of 60.

In my opinion these two legislations should be married so that they talk about the same thing, because, they both regulate employer/employee relations even though the Public Service Act only applies to employees in the public sector. All employees in the country including those in the public sector are still subject to the Labour Act.

• Elizabeth Nkole is a senior labour inspector in the Ministry of Labour, Industrial Relations and Employment Creation. She holds a Post-Graduate Diploma in Law (Conciliation and Arbitration) and Bachelor of Laws Degree (Honours).

LEAVE A REPLY

Please enter your comment!
Please enter your name here