Following a Court of Appeal (CoA) judgement that explicitly states that an employer doesn’t need a valid reason to fire an employee, the Botswana Public Employees Union (BOPEU) has vowed to launch a campaign to overturn a situation that is highly detrimental to the job security of all Botswana workers.
At its last session, the CoA handed two groundbreaking judgements that intersect on the point that in its current constitution, the Employment Act doesn’t have job security provisions. On the basis of the latter, employers don’t need “just cause” to terminate an employee’s contract of employment. This ruling overturns a 21-year old one by the Industrial Court that stated the exact opposite: that an employer has to have just cause and should give reasons to fire an employee.
BOPEU’s president, Andrew Motsamai, says that the CoA’s decision is clearly detrimental to job security as well as to the rights of workers in general.
“This decision will no doubt suppress the voice of workers within the workplace, especially those of trade unionists and other workers’ representatives. If an employee may be dismissed for no valid reason, what stops an employer from surreptitiously dismissing a worker for their trade unionism, and then hiding behind this judgment? Such situation is unacceptable. BOPEU considers that the situation now prevailing as a result of the judgment of the Court of Appeal should not be left unattended,” he says.
He adds that the Union intends to work with relevant stakeholders to challenge the status quo for the benefit of its members and that of Botswana workers in general. The first step will entail “exploring and evaluating the judgment and identifying both the reasoning of the court and the exact implications of the judgment.” Motsamai says that the judgement raises certain key questions like whether the judgment applies only to employees within the private sector and whether it applies only to cases brought before both the High Court and the Industrial Court.
“The answers to these questions have far reaching consequences, hence the need to thoroughly interrogate them,” the Union boss asserts.
Interestingly, Zimbabwean workers are in the same boat as Botswana’s. Motsamai says that it has come to the attention of BOPEU’s leadership that in July last year, the Supreme Court of Zimbabwe made a judgement similar to the one that Botswana’s CoA has just made. These are the parallels: the latter judgement was based on Zimbabwe’s Labour Act which is equivalent to Botswana’s Employment Act; the Supreme Court of Zimbabwe is equivalent of Botswana’s Court of Appeal; and both judgements were based on common law.
Motsamai says that BOPEU has also noted that South African situation is different ostensibly because the country’s Labour Relations Act and constitution guarantee fair labour practices for workers.
“BOPEU leadership is therefore looking into all these matters, and the conclusion reached on them will guide us on how best to challenge the status quo,” says Motsamai mentioning as the first option, challenging the interpretation of the law as adopted by the CoA and as the second, lobbying for an amendment of the Employment Act by parliament.
If undertaken, the first option will prove a futile exercise because the CoA is the highest court in the land and its judgements (even if woefully deficient in their interpretation of the law) cannot be appealed anywhere. While the second option offers promise, there is a complication that acts as an impediment. In Botswana and contrary to official rhetoric, the law is actually made by the executive and rubberstamped by parliament. With the ruling-party backbench the least assertive it has been in parliament’s history, the executive can table (or not table) any piece of legislation, secure in the knowledge that it will gain legislative passage. It so happens that trade unions and the executive have been at loggerheads for a greater period of President Ian Khama’s administration. The second option is what can alter the status quo but an executive that has not demonstrated even the least amount of appetite for progressive labour legislation and believes in asymmetrical warfare happens to hold all the aces.
Motsamai reveals that BOPEU’s leadership has already studied the CoA judgments and plans to conduct further research on the matter. Also on the cards are plans to workshop stewards on the implications of the judgment with the assistance of experts as well as sensitising the entire union membership. BOPEU holds its annual general meeting in December this year.