AG confirms no severance for public servants who resign early

A legal interpretation requested by the Office of the Prime Minister has reaffirmed a High Court ruling that shuts the door on severance pay for public servants who resign before reaching the age of 65, a decision that overturns previous precedent and brings long-awaited clarity to a widely misunderstood provision of the Labour Act. The request, directed to the Office of the Attorney General, sought interpretation of Section 35 of the Labour Act, 2007, in conjunction with the Public Service Act of 1995 and Staff Rules. The resulting legal opinion has now been cemented by the court’s judgment. The High Court’s interpretation affirms that severance pay is strictly applicable only when an employee resigns or retires upon reaching the age of 65. Any previous understandings or legal positions that permitted severance pay before this threshold are now invalid.





Court clarifies


This legal position was confirmed in the Hardap Regional Council v. Labour Commissioner & Others court case, with judgment delivered on 27 February. The ruling overturned an earlier precedent set by the Gibeon Village Council v. Uaaka & Others case, which had supported the notion of severance pay upon resignation. In the Hardap case, the Labour Court had partially upheld an appeal by the Hardap Regional Council against a previous arbitration award concerning severance pay. The case centred around Nahason Munyoruzo Kenanganda, who resigned at age 45 from his role as chief human resources practitioner after nearly ten years of service. The court clarified that under the Labour Act 11 of 2007, employees who resign before age 65 are not entitled to severance pay. The arbitrator's original ruling, which granted Kenanganda severance, was found to be incorrect.





The final word


Judge Essie Schimming-Chase highlighted that severance is intended only for cases where employment is terminated without the employee’s fault, not voluntary resignations. As a result, the arbitration award was set aside, and Kenanganda’s claim was dismissed. With this definitive legal position, there is no need to amend the law, despite drafting ambiguities, the court found. The Public Service Staff Rules already prohibit severance pay for resigning employees, meaning the status quo remains unchanged. The clarification is expected to ease financial and administrative burdens from previous misinterpretations.


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