For the first time ever, the Industrial Court has delivered a seminal judgement on the concept and practice of “consultation” as occurs in the workplace.
Determining it was overstaffed, Botswana Railways decided to shed some 147 staff members but a few days before that happened, the Botswana Railways Amalgamated Workers Union (BRAWU rushed to court late last year to reverse the process, arguing that it had not been consulted. When the litigants’ lawyers locked horns in court over two days, the argument centred on whether the engagement between the two parties constituted consultation.
The outcome of this battle has helped define “consultation” within the context of Botswana’s labour law. In his judgement, Justice Isaac Bahuma dug up the lexical roots of “consultation”, reaching for Burton Williams Legal Thesaurus, which serves up a potpourri of single words, phrasal verbs and at least two phrases.
The court then considered at what stage the duty to consult arises and the sort of consultation that meets the legal test. “Judicial precedent strongly supports the motion that implementation of a restructuring exercise should be effected after consultation and not before,” says the judgement, noting in another part that “the courts have in the past cautioned the employer from making the consultative process a mere formality to be quickly dealt away with.” It goes farther to concur with a view expressed in a South African court that “the so-called ‘two-stage approach’ which accepted that management could make the decision in principle to retrench and thereafter consult on the implementation thereof has now been rejected.”
In the case of BR, a consultant was engaged to review the organisation’s structure and make appropriate recommendations. When the process was over, a joint negotiating committee (JNC) was constituted and it held its first meeting on August 1, 2012. The JNC, the sole negotiating and consultative body in respect of which all labour-related matters reposed, was the product of a collective labour agreement (CLA) concluded between BR and BRAWU in June 2001. The CLA provided for the union to be consulted on matters pertaining to the welfare of its employees.
At the August meeting, the BR Chief Executive Officer, Dominic Ntwayagae, announced that recommendations of the consultant on restructuring had been approved and that they should be implemented. The issue of restructuring was discussed at subsequent meetings but the parties came out on opposing ends of the issue, with BR taking the view that “consultation is an ongoing process.”
In the reasoning of the court, “in cases of restructuring such as this one, where the issue of consultation or lack thereof is an issue, the burden ought to be on the employer to prove on a balance of probabilities that consultation did take place.”
The latter is what BR’s lawyer, Dineo Makati-Mpho, sought to do last month when the matter came before Justice Bahuma. She pointed out that in August last year, the BRAWU chairperson expressed satisfaction with the manner in which the restructuring exercise was proceeding. At the time, Ntwayagae was undertaking a national line tour of the organisation’s stations addressing staff members about the exercise. The chairperson 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.
She further said that BRAWU’s vice chairperson was a member of a working committee formed at the time of the consultancy and was part of a team that went to Brazil on a benchmarking trip. Alongside BRAWU’s secretary general, the vice chairperson was also a member of the job evaluation committee.
Conversely, BRAWU’s lawyer, Sesupo Mosweu, counter-argued that BR had not demonstrated how it had complied with the CLA and that at no point were reasons for retrenching staff given. 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, the sole negotiating and consulting body.
In agreeing with this point in his judgement, Justice Bahuma pointed out that BR should present evidence of consultation in the form of minutes of the JNC.
“In the absence of minutes proving that consultation in the manner suggested did take place, [Makati-Mpho’s] argument however couched, will be difficult to sustain,” the judgement says.
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.
In his judgement, Bahuma concurs with the views of an authority he quoted that “the employer must consult with the employee before a firm decision to downsize is taken.” As late as November 2, last year when the decision to retrench 147 people had long been taken and the process to do so well in train, there was still contention by the union that consultation had not taken place. Makati-Mpho had cited this meeting as evidence of consultation but the judge demurred.
“Surely it cannot be correct as argued by counsel for [BR] that there was consultation at the JNC meeting of November 2, 2012. On the contrary, the minutes of November 2, 2012 reflect that the issue of consultation was postponed to the next meeting,” the judgement says.
At the next meeting, attitudes had hardened. Management asked BRAWU to provide names of representatives to constitute the transition but “BRAWU averred that management has not taken them through on how they arrived at 147 redundant jobs.” With regard to this episode, Bahuma notes that when the union still expected to be consulted on the retrenchment, BR “had made up its mind to implement in the next four days.”
The judicial importance of this case is that it is the first in which a Botswana court has dealt as substantively with the issue of pre-retrenchment consultation. In fact, all the authorities that Bahuma quoted are foreign. On such basis, the judgement represents victory not just for BRAWU but all other unions in Botswana which often express dissatisfaction about the manner of consultation but have never made consultation the centrepiece of their case in the precise way BRAWU did.
