Tuesday, September 22, 2020

CEDA, former employee wrestling in court over unlawful dismissal

A former employee at the Citizen Entrepreneurial Development Agency (CEDA), Victor Chivasera is battling his former employer in court for unfair dismissal.  The case is before Francistown Industrial Court Judge Galesite Baruti. 

The applicant (Chivasera) seeks the court to declare that his dismissal was procedurally and substantively unfair. He also seeks the court to order and set aside his dismissal, order CEDA to reinstate him to his earlier position, order the former employer to pay him 24 months compensation for unfair dismissal and all the costs of the suit.

According to the particulars of the dispute, on 25 November 2010 the applicant was employed by CEDA (Respondent) and his contract was for an indefinite period. At the time of his dismissal he held the position of Team Leader based at Palapye CEDA branch. On the 14th of July 2017 CEDA wrote a letter to the applicant requiring him to attend a disciplinary hearing on the 3rd of August 2017. At the hearing he was accused of Contravention of CEDA General Conditions of Service. CEDA accused him of failure to adhere to the CEDA process and procedures alleging that he failed to validate as to whether a client (promoter) was interviewed as part of the appraisal process. He was further accused of failure to ensure that the project of the client is monitored during both the appraisal and disbursement or implementation stages of the project as set out in the CEDA processes and procedures. CEDA further accused him of negligence and causing the organization to lose funds. The employer conducted the disciplinary hearing and ultimately he was dismissed from work on the 14th of August 2017. The applicant felt that his contract was terminated without any substantive reasons supporting the charge that led to his dismissal. 

Chivasera is represented by Onalethata Kambai of Kambai Associates while CEDA is represented by Onkagetse Pusoentsi of Modimo and Associates
Court documents reveal that on the 24th of August 2017 he appealed his dismissal to the CEDA Board of Directors and his appeal was unsuccessful. The applicant then referred his appeal to the Commissioner of Labour for unfair dismissal on the 19th of September 2017 and the issue was mediated by Mr D Diraditsele of Gaborone District Labour office. The dispute remained unsettled and the mediator issued a certificate of failure to settle a dispute on the 31st day of October 2017.
He then launched a case against CEDA at the Industrial Court.
After a lengthy trial, as part of his arguments, Chivasera contended in defence through his lawyer Kambai in court last week that he was under no obligation to personally interview the promoter as part of the appraisal process under CEDA General Condition of Service or Credit Policy. He maintained that the responsibility to interview lied with the Portfolio Executive who had actually interviewed the promoter hence the report was submitted to the applicant (Chivasera) as Team Leader. He further claimed that as a Team Leader his duty was to receive the report from the Portfolio Executive and check the proposed application against the CEDA credit policy and feasibility of the project. The applicant argued that the diligence Board misdirected itself to find him guilty under this charge. On the charge of failure to ensure that the project is monitored as set out in the CEDA monitoring procedures, Chivasera contended that there was no evidence to support this charge.

“It is my humble view that the complainant during disciplinary hearing failed to lead sufficient and convincing reasons for the Board to find the applicant guilty,” said his lawyer Kambai in his arguments.

On the other hand in part of the respondent’s defence, Pusoentsi who represents CEDA maintained that the applicant’s employment was terminated following a guilty finding against him for serious misconduct at a properly convened disciplinary hearing. The respondent’s lawyer also denies the position by the applicant that there was insufficient evidence leading to his dismissal but asserts that the offence was proven on a balance of probabilities as required by law.

“As a Team Leader the applicant bore the ultimate responsibility to ensure that all the procedures and activities which goes with the disbursements or loan application are adhered to. Accordingly he cannot shift posts to his subordinates and plead innocence,” said Pusoentsi in defense.

He further argued that no irregularity was committed by the respondents at any stage as due process was followed before termination of the Chivasera’s employment. He also said it is trite that in disciplinary proceedings at the work place, the standard is that of a balance of probabilities and explained that this was how the applicant’s case was dealt with.

“We seek the court to dismiss the application. The remedy of reinstatement is not appropriate in the circumstances as the relationship between the employer and employee was broken down irretrievably because of the exposure caused by him. The respondent is not entitled to any compensation and has not demonstrated how he is entitled to costs in terms of trade disputes,” he said in his statement of defense.

The parties are yet to file their submissions in July 2018 and judgment will be delivered on the 18th of August 2018.

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The Telegraph September 23

Digital edition of The Telegraph, September 23, 2020.