Thursday, December 8, 2022

BR retrenchment case comes to Industrial Court

Botswana Railways’ plan to have retrenched some 147 employees by yesterday (December 15) has been put on hold pending the outcome of an urgent application before Justice Isaac Bahuma at the Gaborone Industrial Court.

The matter was brought before the court by the Botswana Railways Amalgamated Workers Union (BRAWU) which wants the court to stop the planned retrenchment.

In a small way, the union scored a victory because the non-conclusion of the matter before the December 15 deadline means that the retrenchment cannot go ahead. Doing otherwise would amount to contempt of court.

The union contends that contrary to provisions of a collective labour agreement (CLA) it was never consulted while BR maintains the opposite. For all the time that they were on their feet, lawyers Dineo Makati-Mpho for BR and Sesupo Mosweu for BRAWU sought to respectively prove and disprove that consultation occurred.

Launching into her argument, Makati-Mpho said that BR was “at a loss why we are in court today” because as recently as August this year, the BRAWU chairperson expressed satisfaction with the manner in which the restructuring exercise was proceeding.

At the time, BR’s chief executive officer, Dominic Ntwayagae, was undertaking a national line tour of the organisation’s stations addressing staff members about the exercise. Molaodi tagged along and at one of these meetings fatefully remarked that “we are marching step by step with management.”
Makati-Mpho pointed to these words as evidence that the union was happy with the restructuring exercise and had no reason to have brought the matter before court.

In the initial phase of the process, a working committee was put together to work with a consultant who was assessing the organisational systems and processes.

Makati-Mpho said that BRAWU’s vice chairperson was a member of this committee and was part of a team that went to Brazil on a benchmarking trip. She added that as a member of this committee, this union representative was given access to confidential information which is a rare privilege for employees.

However, while this representative could participate in the proceedings of the committee, Makati-Mpho said that there was always an understanding that BR had the final say. Alongside BRAWU’s secretary general, the vice chairperson was also a member of the job evaluation committee.
The lawyer said that BRAWU had also agreed to an implementation plan but in August this year, when a memorandum of agreement (MoA) was jointly drawn up, BRAWU later refused to sign it.

She also quoted minutes of a meeting between the Industrial Relations Manager (IRM) and the BRAWU chairperson in which the latter confirmed that she fully agreed with this plan. She stated that BRAWU had very conveniently not attached these minutes as annexures because they don’t support its case.
Along the way, as the process unfolded and in line with an information-sharing clause in the CLA, BRAWU requested information about the new pay structure and skills audit report from BR. The latter demurred and Makati-Mpho told the court that these documents were confidential and not on the list of documents that both parties had agreed could be shared. As a result of this stalemate, BRAWU declared a dispute but a mediator who dealt with the matter ruled in favour of BR.

Subsequently and with the final phase of the restructuring exercise approaching, tensions grew palpably between the two parties. Invited to nominate two representatives to the transition team, BRAWU refused. It also declined an invitation to submit proposals for a separation package.
“Here is the respondent inviting the applicants to come to the party and have free drinks and they are refusing,” Makati-Mpho remarked.
BR is also arguing that no urgency about the matter has been established because the union could have prosecuted its claim a long time ago when it felt that the rights of members were being violated.
“This case reeks of self-created urgency,” Makati-Mpho said.

In support of that assertion she stated that BRAWU could have approached the court as early as August when BRAWU disagreed with management on fundamental aspects of the process.

“These are people who have demonstrated that they know their rights. These are not people ignorant of their rights or even shy to express themselves,” the BR lawyer said.

Conversely, Mosweu’s argument was that BR had not demonstrated how it had complied with the CLA and that at no point were reasons for retrenching staff given. The exercise established a joint negotiating committee (JNC) which Mosweu said was the sole negotiating and consulting body through which all issues relating to the restructuring had to be thrashed out.

On that basis, he submitted that minutes of the CEO’s line tour could not be produced as evidence of consultation because the meeting occurred outside the JNC. He advanced the same argument with regard to a meeting between the IRM and the BRAWU chairperson. However, Makati-Mpho would later counter that the line tour occurred as a result of a JNC resolution.

She added that this body can make decisions to be implemented elsewhere as well as ratify decisions made by other bodies.

There was having to explain the BRAWU chairperson’s statement about marching in lockstep with management towards the December 15 deadline.

When the working relationship between the union and management became frosty, talks stalled but after the board adopted the consultant’s report, relations thawed well enough for the chairperson to say that the union was marching side by side with management, Mosweu offered.

The consultant’s report had recommended extensive consultation with the union and at some point, the IRM advised that the union be consulted every step of the way. Mosweu contended that BR chose to ignore both recommendations. Giving justification for the union’s refusal to participate in the transition team, the lawyer argued that it would have been absurd for his clients to be part of a process they had fundamental disagreement with.

“The transition team is to implement a structure that the applicants have yet to be consulted on,” Mosweu argued.

BR’s position is that as the party that would bear costs of any delay, it is well within its rights to go ahead with the process and that by refusing to join this team, BRAWU was in breach of the CLA.
When the process started, BRAWU asked for terms of reference but had to wait for two months to get them. Mosweu pointed to this as evidence of bad faith on the part of BR. Regarding the union representative appointed to the working team, the lawyer said that this hardly amounted to empowerment as this representative was constrained by process rules to not share confidential information with his BRAWU colleagues.

Mosweu went farther to quote a provision in the CLA that says that the implementation should happen six months after BRAWU is notified and that cogent reasons for retrenchment should also be given. He pointed out this to show that with the union having been notified of the planned retrenchment in August, the deadline specified in the CLA is a little way down the road. Regarding the invitation extended to BR to propose a separation package, Mosweu said this was a case of “putting the cart before the horse” as no consultation had preceded this and reiterated the point that his clients were still in the dark on why it was necessary to retrench staff.

He contrasted the latter with a recommendation in the consultant’s report that says that there is no need to reconfigure BR’s organisational structure. What the report recommended which Mosweu said BR had not done was realign certain functions. He also pointed out the ambiguity of the proposed structure being more expensive than the current one when its adoption is supposed to reduce costs.
The part of the report that he quoted explicitly says that the new structure may affect BR’s profitability in the short-term.

Mosweu contested the assertion that BRAWU was party to the drawing up of the implementation plan and went farther to state that in actual fact, no such plan existed. Addressing the issue of why BRAWU refused to sign the MoA, Mosweu explained that contrary to a recommendation that the process would follow a set of well-defined steps (18 in all), the MoA stated that it was not necessary to follow each of the steps.

Justice Bahuma is expected to issue a ruling this week.

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