4th August 2025

It might prove a challenge for laypersons and inexperienced representatives to navigate the different dispute resolution procedures in Parts A to D of Chapter 3 of the Labour Act, 11 of 2007 (“the Act”). A distinction between conciliation proper and an attempt to conciliate by an arbitrator provides some assistance.

Arbitrators are appointed to preside over disputes of rights, whereas conciliators are appointed to preside over disputes of interests. This is the yardstick to be used to determine when the Labour Commissioner  must designate a conciliator or an arbitrator to preside over a dispute. 

Whereas an arbitrator has the power to make a binding award, a conciliator cannot:  a conciliator can merely attempt to obtain agreement between the parties as a resolution to the dispute.

Sections 81 and 84 of the Act define the meaning of ‘dispute’ for purposes of Parts A and B of Chapter 3, respectively. The former concern disputes where neither party has an existing right that should be enforced or that might have been infringed on (for the most part, ’disputes of interest’), whilst the latter concern disputes requiring the enforcement or alleging the infringement of existing rights.

A conciliator may dismiss or determine the matter on non-appearance of a party in terms of sections 74(3), 83(2)(a) and 83(2)(b) of the Act. An arbitrator may dismiss a matter or proceed with the hearing in the absence of a party in terms of Rule 27(2) and (3) of the Rules Relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner (“Con/Arb Rules”).

An arbitrator designated to resolve a dispute in terms of section 85(5) of the Act is first required to attempt to resolve the dispute by way of conciliation in terms of s. 86(6). This process does not amount to conciliation proceedings as per Part B of Chapter 8 of the Act.

An arbitrator is never designated in terms of Part B of the Act and the arbitrator’s conciliation attempt serves a further purpose. The attempt to resolve the dispute through conciliation before arbitration may, in practice, amount to a mere enquiry whether the parties are willing to negotiate a settlement of the matter and, if not, the arbitrator must then attempt to assist the parties to reach agreement on the issues contained in Rule 20 of the Con/Arb Rules, to shorten the proceedings.  If the attempt to resolve the dispute by conciliation is not successful, an arbitrator is not required to furnish a certificate of unresolved dispute in terms of s. 82(15) of the Act. In fact, the arbitrator is not empowered to do so. The matter must then proceed to arbitration.

In contrast, a conciliator cannot proceed to arbitration if a conciliation in terms of Part B of Chapter 3 fails to resolve the dispute, unless the parties have agreed for the unresolved dispute to be referred to arbitration in terms of Part C of Chapter 3. This referral will require of the Labour Commissioner to designate an arbitrator to preside over the dispute in terms of s. 85(5), to confer the arbitrator with the authority to exercise the functions and powers of an arbitrator, as contained in ss. 86 (5) to (18) of the Act.

Jaco Boltman.

DISCLAIMER

This article is for informational purposes only and does not constitute legal advice. Readers are encouraged to consult a qualified legal practitioner for advice specific to their situation. This article is confined to matters of Namibian law, as at the date hereof.