The 11 Botswana Telecommunications Authority senior managers who took their employer to the Gaborone Industrial Court have withdrawn the case and reapplied for reinstatement. Had they not done that by this coming Friday, they would most definitely have been all dismissed.
The managers had taken BTA to court after the status of their contracts was changed from permanent-and-pensionable to fixed-term. This followed a restructuring exercise that started in 2010 and was implemented last year. In their application, the managers used a Latin legal term (void ab initio) that would come to haunt them when the matter was argued in court.
The managers argued that their new contracts were “void ab initio” (meaning that the purported contractual transaction was of no effect right from the very start) on account of their permanent and pensionable contracts having been terminated improperly and having signed the new contracts under what they claimed to be ‘duress.’
BTA offered the managers continued employment on terms that were willing to negotiate but this offer was made on condition that they withdrew their entire claim filed with the court. The managers were also notified that the offer would expire on the last working day of September this year.
Those who did not accept the offer would cease to be BTA’s employees and would neither be allowed to return to work at BTA premises nor would they be accepted or received at those premises.
The managers went back to court, asking for an interdict against BTA from carrying out such punitive actions. In his ruling, Justice Harold Ruhukya said that whilst it was clear that the two sides were always diametrically opposed on the new order, he was nonetheless “baffled” by the managers’ failure to approach the court to stop what they deemed an unfavourable restructuring process.
He said that he also found it “strange” that even assuming they were forced to sign the new contracts, as they claimed, the managers never took their grievances to court.
“Their employment relationship with [BTA] was governed by these new contracts for a period in excess of 12 months before they decided that the contracts in question were void ab initio…. If they felt so strongly that they had been coerced or forced to sign the fixed-term contracts, why did [they] not seek urgent redress from the court seeking to freeze [BTA] in its steps in implementing and continuing to implement the terms of the fixed-term contracts?”
BTA successfully turned the tables on the mangers by using “void ad initio” against them. In its statement of defence, the Authority said that it accepted the managers’ argument that the fixed-term contracts they signed were indeed null and void ab initio, meaning basically, that BTA had no contract of employment with all 11 managers. BTA then argued that the court could not properly adjudicate upon a matter over which there was no dispute as it deals only with issues where the opposite is the case. The judge agreed.
In ruling against the managers, Ruhukya nonetheless advised them to ‘carefully consider’ their employer’s offer and weigh their options. One option was for them to favourably consider the BTA offer, whose deadline had been extended to the end of this month. They did and thought it best to accede to their employer’s demands by withdrawing the main application at the court and reapplying for reinstatement.
However, while it won the case, BTA has also tied itself up in knots.
Even as the restructuring process got in train, some within the organisation wondered why it was necessary to spend millions of pula to restructure an organisation that was about to be subsumed under another and would naturally have to be restructured.
That is exactly what is happening. A new body called the Botswana Communications Regulatory Authority which is responsible for broadcasting, internet, postal and telecommunications, has come into being and with bodies that regulated said functions about to be merged, yet another costly restructuring exercise is on the way.
