AN urgent application in the high court against the constitutionality of parts of the president’s amendment of the Labour Act, which prevents employers from retrenching workers during the State of Emergency, will be heard next week Tuesday.
The Secretary-General of the Namibia Employers’ Federation (NEF), Daniel Strauss, alleged in an affidavit that the COVID-19 regulations, the impugned provisions make no distinction between the rich and the poor employers as it simply treats all employers equally. Most of the poor employers, who he says are often referred to as middle and lower working class and small business owners, will likely not survive and go bankrupt.
Their dignity will subsequently be violated.
Strauss added that rich employers, who he says are often referred to as the elite, might survive.
Strauss, alongside other applicants such as Namibia Employers Association, Huab Safari ranches, John Meinert Printing, FP Du Toit transport, Jet X Couriers and Skycore aviation sought an order that would declare specific parts of regulation 19 of proclamation 16 and regulation 12 of proclamation 18 null and void.
“The suspension of the identified sections of the Labour Act contained in proclamations 16 and 18 are not necessarily for the protection of national security, public safety and the maintenance of law and order as required by Article 26(5) of the constitution. The president went much further than permitted by the constitution,” Strauss said.
Apart from not dismissing workers, employers are also not allowed to force employees to take unpaid or annual leave as a result of COVID-19. The provisions also prevent employers from cutting employees’ salaries.
Employees dismissed before 28 April were also required to be reinstated.
This particular provision, according to Strauss, forces the employer to reinstate the employee while no provision is made for the employee to repay back the retrenchment package received.
Strauss maintains in his affidavit that the criminalisation of the acts which were lawfully done in the past does not heal anybody, nor does it prevent or suppress the spread of the coronavirus.
The applicants maintain that the head of state exceeded the limits of his constitutional powers and acted irrationally.
Judge Shafimana Ueitele will preside.
The respondents will have to file their answering affidavits on or before 22 May.