Gender and the

Labour Act 11 of 2007

© Based on a template produced by the

Gender Research and Advocacy Project
of the Legal Assistance Centre

The Legal Assistance Centre takes

no responsibility for any changes
made to the template.
 Introduction
The aim of the Labour Act is to ensure that all
employees receive the same basic rights and
protections. This presentation focuses on:
– Discrimination on the basis of sex, family
responsibilities or pregnancy
– Pregnancy & maternity leave
– Family responsibilities
– Compassionate leave
– Sexual harassment
Who is covered by the Labour Law?
• Provisions on discrimination and sexual
harassment apply to ALL employees

• Provisions on maternity leave and

compassionate leave apply to all EXCEPT the
following members:
– Namibian Defence Force
– Namibian Police Force
– Municipal police services referred to in the Police Act of 1990
– Namibian Central Intelligence Service
– Prison Service
 Discrimination
An employer may not directly or indirectly treat
employees different on basis of:
• sex
• marital Status
• family responsibilities
• previous, current or future pregnancy
Example
 Discrimination applies to
• All aspects of employment – including
things such as:
– promotions and demotions
– transfers
– selection for training programmes
 BUT
It is NOT discrimination to apply affirmative
action with women for same opportunities or
equal representative in the workplace
 It is discrimination to decide between equally-
qualified job applicants on the basis of their sex
– UNLESS the sex of the employee is an
essential part of the job
 Example:
Is this discrimination?
 WHY?
• Constitution and Labour Act allow special
measures to make up for women previously
disadvantaged
 What is a family responsibility?
It is a duty to provide care and support to a
parent, child, wife or some other dependent
 The law & family responsibilities
• An employer may not
discriminate on the basis
of family responsibilities

• Must make allowances for

family responsibilities

• This applies to both men

and women
 Pregnancy and maternity leave
Can a woman be treated differently at
work during pregnancy?

• When pregnant a woman may not be

able to complete usual tasks
• Employer may assign different tasks
• BUT may not reduce salary or benefits
Is this discrimination?
 Are all women entitled to
maternity leave?

• Any women who has

worked at least SIX
months in a row is entitled
to maternity leave and
benefits
 How long is maternity leave?
A woman is entitled to:
• 4 weeks BEFORE her expected due date
• 8 weeks AFTER the delivery of the baby
= A total 12 weeks of maternity leave

• But sometimes maternity leave might be longer

 Examples
• Suppose a woman goes on leave 4 weeks
before her due date but the baby comes 2
weeks early

• She must get 10 weeks maternity leave after the

baby is born (not 8)
• Suppose another
woman goes on leave
4 weeks before
expected date, BUT
the baby comes after
she has been on leave
for 6 weeks

• She must still get 8

weeks leave after Every mother needs a minimum
of 8 weeks after the birth to
baby’s birth allow for breastfeeding and
caring for the newborn
Payment during maternity leave
• Social Security Commission pays a basic wage of
100%, up to a ceiling of N$10 000 from June 2011*
– Includes only ordinary wages, without extras like S&T,
housing, overtime, etc

• Employer continues to pay other benefits, such as

pension and medical aid

• All employers must register their employees with

the SSC

* Confirmed March 2010

 What if there are health
problems?

• Maternity leave may be extended if you or the

baby have unusual health problems
– This can be for one month or for the amount of sick
leave accumulated, whichever is longer

• Must provide a doctor’s certificate for the

extended leave
 Pregnancy-related dismissal?
• An employer may not dismiss a pregnant woman
for pregnancy related reasons, but suppose you
are unable to do your usual job because of your
situation?
– Your employer is required to
offer comparable work at
the same wages
– If you refuse, then you
could be dismissed
 Compassionate Leave
Compassionate leave is leave required because
of death or serious illness in the family
(child, parent, brother, etc)

• Employees receive 5 days

compassionate leave in
every year of continuous
employment

• It is not part of sick leave or

maternity leave

• It cannot be carried over

 Sexual harassment

A person may not, in any employment decision

or in the course of an employee’s employment,
directly or indirectly sexually harass an employee.

Labour Act, section 5(8)

 What is sexual harassment?
• It is unwarranted sexual behaviour towards an
employee by the employer or a co-worker
Examples of sexual harassment
There are 2 types of sexual harassment:

(1) where the employee has indicated that the

conduct is unwelcome
David asks Jessica to go for a drink with him after work. Is
this sexual harassment?

No, unless David has asked before and Jessica has

indicated that his attention is not wanted
(2) where any reasonable person would find
the conduct unacceptable

Pauline is the manager of the company, she has asked

Brian to go on a date with her but he has refused. She
says that unless he goes on a date with her she will fire
him. Is this sexual harassment?

Yes. Pauline is using her role as an employer to try to

influence Brian.
What is the employer’s responsibility in
cases of sexual harassment?
• It is illegal for an employer to engage in sexual
harassment of employees

• Employers are
expected to take
reasonable steps to
make employees
safe from sexual
harassment by
co-workers
 What can you do if you think your
employer has violated the Labour Act?

• Collect evidence to support your case

• Make a complaint to your employer

• If the issue is not resolved, you can make a

complaint to a labour inspector or the Labour
Commissioner
 What are the consequences
for an employer who does not
follow the Labour Act?

The employer could be asked to:

• reinstate an employee who was unfairly

dismissed
• pay compensation to the employee
• take other steps ordered by a labour inspector or
Labour Court
 For further information

• Contact the Ministry of Labour and Social

Welfare (061 2066111)

• Contact the Legal Assistance Centre (061

223356; info@lac.org,na )