Thursday, July 2, 2020

Concurrent jurisdiction of Industrial Court and High Court problematic – CoA

As the Ministry of Employment, Labour Productivity and Skills Development tinkers with the Employment Act and Trade Disputes Act (TDA), the expectation of the Court of Appeal is that the resulting amendments should “harmonise” the two Acts. Such harmonisation is necessary because as the situation stands, “the same facts may conceivably lead to a different result depending upon the forum chosen by the litigant.”That is what Justice Ian Kirby, the Judge President of the Court of Appeal has stated in a judgement that pitted Khomecau Copper Mining against Stephen Wallace, a former employee. After being fired from his lucrative job, Wallace took the matter up with the Francistown Industrial Court where he triumphed.

Khomecau appealed the judgement at the Court of Appeal where a five-judge bench was assembled to hear the appeal.The court asked lawyers in the case, Joseph Akoonyatse for Khomecau and Malcolm Gobhoza for Wallace to address the court on three questions: whether different rules are to be applied where unlawful termination of service is dealt with by the High Court, as opposed to where this is dealt with by the Industrial Court;  whether the CoA is permitted to apply equitable principles in determining an appeal from the Industrial Court, but has no such power in an appeal from the High Court on such matters; and  whether litigants should continue to have the right to challenge unlawful dismissals in contractual actions or by way of review in the High Court, rather than by approaching the Industrial Court, as a specialized court created to deal with such cases.

After hearing and synthesising submissions by both sides, the court determined that in creating a specialist court of law and equity, in this case the Industrial Court, which has concurrent jurisdiction with a court of law (here the High Court), parliament has created an untenable situation.“… a termination of employment effected in terms of the Employment Act without applying the rules of natural justice may be found to be lawful by the High Court, applying the common law, but could be found to be unlawful applying the Minister’s Code of Good Practice in proceedings brought in the Industrial Court. And certainly the compensation ordered by the Industrial Court, applying the equitable principles authorized by section 27(4) of the TDA, may differ substantially from the common-law damages awarded by the High Court … following the common-law principles incorporated in the Employment Act,” says Kirby in a judgement that favoured Wallace.

The lawyers found common ground on sentiment that this inconsistency may create difficulties for the employer because upon termination of his/her employment, it is the employee who is to choose the forum in which to pursue his complaint.While both the Employment Act and the TDA are intended to promote good labour relations, and to compensate for the power imbalance that existed historically between employers and their employees, there are also significant differences between them. The Employment Act does apply to public officers, or members of the disciplined forces. The TDA applies to public officers but not members of the disciplined forces.“Thus in unlawful dismissal cases before it involving public officers, the High Court is to apply the Public Service Act [PSA], while in such cases the Industrial Court is to apply both the PSA and the TDA, save where the PSA indicates otherwise,” Kirby explains in his judgement.

The Judge President asserts that “there is no obligation under the Employment Act for an employer to show just cause, or to give reasons, or to hear an employee, before terminating his or her employment by giving notice (as opposed to summary dismissal for disciplinary reasons). In the Industrial Court, on the other hand, those pre-requisites are required in order for any termination to be substantively and procedurally fair, and so lawful.” Those requirements have been introduced through the Minister’s Code of Good Practice.“Where an appeal is brought from the Industrial Court, however, the Court of Appeal is to apply the law governing that court, namely the TDA, together with the relevant Act. So, in an appeal from the Industrial Court this court is empowered and obliged to apply equitable principles, whereas in an appeal from the High Court, it is not.”As the CoA notes but using more tempered language, the government has undertaken misguided effort to amend its raft of labour laws. While the Employment Act has been amended and augmented, and further Acts promulgated to fulfill Botswana’s international obligations, the government didn’t take due care to ensure harmony across the board.

Kirby says that while the Employment Act was amended in 2010 to make it unlawful to terminate the employment of an employee for “any other reason which does not affect the employee’s ability to perform that employee’s duties under the contract of employment”, sections dealing with the right of either party to terminate a contract of employment by the giving of notice were not amended. This is despite the explicit language used in the Memorandum to the Bill – an amendment of the Employment Act Cap in order to comply with the International Labour Organization (ILO) Conventions to which Botswana is a party. Kirby notes that while Botswana has not ratified the Termination of Employment Convention, many of this Convention’s provisions have been incorporated indirectly into the TDA (but not into the Employment Act) by means of the National Industrial Relations Code of Good Practice.

The latter was issued by the Minister and published as Government Notice in 2008 and has as one of its schedules, The Code of Good Practice (Termination of Employment) which is issued on the authority of the TDA. The Act provides that in making any decision, the Industrial Court shall take that Code into consideration. Clause 14 of the Code states that “Termination of employment is one of the primary concerns of employees and no contract of employment may be terminated arbitrarily, without due process and without just cause.”“So Parliament has assigned to the Minister the power to develop such a Code, and has commanded the Industrial Court (but not the High Court or any other court) to take it into account in making its decisions on labour disputes.”

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Sunday Standard June 28 – 4 July

Digital copy of Sunday Standard issue of June 28 - 4 July, 2020.