Mia Kellerman and Duane Dausab
In Hardap Regional Council v The Labour Commissioner (HC-MD-LAB-APP-AAA-2024/00014) [2025] NALCMD 8 (27 February 2025) (“Hardap”), the court clarified the long-standing debate on severance pay upon resignation. It ruled that an employer must pay severance to an employee only if they resign or retire upon reaching the age of 65, provided they have completed at least 12 months of continuous employment.
Mitchel Mwabi was employed by the Hardap Regional Council as Chief Human Resources Practitioner. After ten years of continuous service, he resigned at the age of 45 and demanded severance pay under section 35(1)(c) of the Labour Act 11 of 2007 (“Labour Act”), which states:
“Subject to subsection (2), an employer must pay severance pay to an employee who has completed 12 months of continuous service if the employee resigns or retires on reaching the age of 65 years.”
The employer refused to pay severance, arguing that Mwabi was not entitled to severance under the Labour Act. Mwabi then referred the dispute to the Labour Commissioner, where the arbitrator ruled in his favour, awarding him N$62,756.08. The arbitrator based the decision on the Gibeon Village Council v Labour Commissioner 2021 All Nam 467 (LC) judgement (“Gibeon”).
In Gibeon, Judge Parker AJ stated that an employee is entitled to severance pay upon resignation. However, this was merely obiter dicta (something said in passing), as the court was not specifically asked to rule on severance pay entitlement. Instead, the Gibeon matter focused on whether a dispute over a “severance package” had prescribed.
Judge Schimming-Chase, in Hardap, declined to follow Judge Parker’s remarks. She noted that the issue of severance pay was not properly argued before the court in Gibeon, nor had it been the subject of legal submissions. Instead, she found that, on a proper interpretation of section 35(1)(c) of the Labour Act, an employee must first reach the age of 65 to qualify for severance pay upon resignation.
Judge Schimming-Chase further acknowledged that the way the subsection was draughted is not a model of clarity, as it includes the word “or” between “resigns” and “retires”, along with the phrase “upon reaching the age of 65”. However, she found that a key jurisdictional requirement is that the employee must have reached the age of 65. Whether an employee resigns or retires, severance pay is only payable once they have reached the age of 65. As a result, the court dismissed the employee’s claim for severance pay.
In light of the above, severance pay is, by definition, only payable upon resignation or retirement at the age of 65, provided the employee has completed 12 months of continuous employment. Reaching this age is a peremptory jurisdictional requirement that must be present for a successful severance pay claim.
