Hertta-Maria Amutenja
The Supreme Court of Namibia’s decision on employee sick leave and workplace discipline has raised concerns from trade unions, which argue it could infringe on workers’ rights.
The court ruled in November 2024 that employers are not limited to accepting medical certificates as proof of illness and may request detailed medical reports, particularly for extended absences or cases involving mental health.
The judgement stemmed from the case between Hilya Nghiwete, former chief executive officer of the Namibia Students Financial Assistance Fund (NSFAF), and her former employer.
Speaking about the ruling, the secretary general of the Mine Workers Union, George Ampweya, said the decision could negatively affect employees.
“While we understand the need for employers to manage absenteeism effectively, this decision could potentially infringe on employee privacy and could be misused to further scrutinise workers, especially when it comes to mental health. The demand for detailed medical reports instead of medical certificates may create an undue burden on employees, threaten their rights to privacy, amongst other things, and lead to potential discrimination,” he said.
Ampweya stated that requiring detailed medical reports might place an undue burden on employees.
He said the union would advocate for clear criteria on when such reports could be requested.
“To protect workers from unfair scrutiny under this precedent, our union will advocate strongly for the establishment of clear and specific criteria for when detailed medical reports can be requested, ensuring they are used only in cases of genuine necessity. Unions should further enlist the services of legal experts to safeguard employee privacy, ensuring that only necessary and specific information is shared,” he said.
General secretary of the Metal and Allied Namibian Workers Union, Justina Jonas, also weighed in, saying the judgement could be a double-edged sword, adding that employees must understand their workplace policies and maintain clear medical records.
“If there is suspicion of sick leave abuse, the employer might use this to validate their concerns,” she said.
This practice has been ongoing in some cases,” Jonas said.
“However, it’s crucial to ensure employers do not abuse this power and that workers are protected.”
The unions warned that the ruling could shift the balance of power further towards employers if not carefully implemented.
They called for collaboration between unions and employers to ensure transparency and fairness in handling such requests.
The judgement stemmed from a dispute between Nghiwete and NSFAF. Nghiwete, dismissed in 2020 following a suspension in 2018, argued her dismissal was unfair and procedurally flawed.
The Labour Court found her dismissal invalid and ordered partial compensation but refused her reinstatement. Both parties appealed to the Supreme Court.
The court upheld NSFAF’s demand for a detailed medical report to assess Nghiwete’s ability to attend a disciplinary hearing. It found that medical certificates alone might not suffice, especially in cases of extended sick leave.
The court stated that requesting a medical report or examination by a psychiatrist could be reasonable if there were grounds to question an employee’s incapacity.
The judgement also highlighted that while employers have the right to manage absenteeism, workers must comply with reasonable requirements for medical documentation to substantiate their claims.
