Tuesday, April 7, 2020

Axed BPC COO wins case against corporation

Former Botswana Power Corporation Chief Operations Officer (COO) Jonathan Raheem Hosseini has won a case of unfair dismissal against the corporation.

Following the decision by BPC to fire him in September 2018 Hosseini instituted legal proceedings at the Industrial Court in November 2018 challenging the dismissal. 

The Francistown Industrial Court ruled against BPC and former Chief Executive Officer Dr. Stefan Schwarzfischer.

Judge Galesite Baruti ruled that the dismissal of Hosseini was substantively wrongful or unfair. That the dismissal of the COO was procedurally wrongful or unfair. He ordered the BPC to pay Hosseini an amount of P129 063.00, which is 3 times his monthly basic salary, within 30 days as compensation for an unfair termination of his employment contract.

According to particulars of the case Hosseini was dismissed by the BPC Board despite having been found not guilty by a disciplinary committee on all six charges he had been facing. The charges included insider trading, abuse of office, conflict of interest, and dishonesty among others.

A disciplinary hearing commenced on July 4, 2018 the complainant being then CEO Dr. Schwarzfischer against Hosseini.

Arising from the seniority of the persons involved, BPC empaneled a body independent of its structures to preside over the disciplinary proceedings, resulting in the formation of a disciplinary hearing panel of highly respected legal, human resource, and business professionals. The disciplinary hearing panel was chaired by a highly respected attorney selected by BPC. “The Chairman of the Panel and the Panel conducted the hearing explicitly in terms of BPC Disciplinary Policy and Procedure at every step of the proceedings.”

The Disciplinary Hearing proceeded over the period from 4th July through 20th July 2018.

Extensive documentary and witness evidence was led and cross examined.

Final written submissions from the Complainant and the Defendant were submitted on July 30, 2018.

The Disciplinary Hearing was concluded and a written and signed decision of the panel was issued. The signed decision of the panel and outcome “explicitly” referenced and “explicitly” concluded the disciplinary hearing in terms of BPC Disciplinary Policy and Procedure.

The disciplinary hearing panel found Hosseini not guilty on all six charges that had been leveled against him.

However, Hosseini was asked to appear before the BPC Main Board. The Board informed him that they disagreed with the Disciplinary Hearing Panel Decision and without any further hearing and the Board found him guilty and he was subsequently dismissed from his job with immediate effect.

Judge Baruti however found that BPC were bound by the decision of the independent panel given that it was the panel only, and no one else, who went through the hearing process.

Baruti said it was unlawful, unreasonable and unfair to the Hosseini for the Board to throw the panel’s findings out through the window, and constitute a different panel, that never heard the case, to return a guilty verdict.

“It was a wrongful and invalid act on the part of Respondent to get hold of the record of the disciplinary hearing and pick up some facts from it on the basis of which it dismissed Applicant. One crucial fact that was discarded by Respondent’s appointed panel was that the disciplinary hearing had not been conducted promptly. This is a crucial fact in that it confirmed that Respondent had violated its own disciplinary code.”

The finding of guilt made by the Board, the Court found, was based on nothing because it never gathered any evidence beyond that of the independent panel that could have proved the guilt of the Applicant.

“Outside of the independent panel’s evidence there was nowhere else the Respondent’s panel could gather evidence to justify a just cause for dismissal. The dismissal of the Applicant was therefore substantively unfair,” Baruti ruled.

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