Thursday, January 28, 2021

Court dismisses case of fired Debswana employees

Some of the 461 former employees of Debswana who were in 2004 fired for engaging in an illegal strike left the Broadhurst Court disappointed faces after Industrial Court judge Harold Rahukya dismissed their case of unfair dismissal.
The judge said the case lodged by the dismissed workers was not brought to Court properly.

In his lengthy judgment, Rahukya said that it was interesting that it took the applicants in this matter almost four months to file an application for forgiveness for late filing of its statements of the case.

He also said that the founding affidavit of Jack Tlhagale, the Secretary General of the Botswana Mine Workers Union, had been drafted in an inelegant fashion and lacked in material averments as well as being riddled with allegations that, in the Court’s view, are irrelevant.

On the degree of the case’s lateness, the judge said that it was common cause that the applicants, BMWU, had delayed in referring the matter to Court after the certificate confirming the dispute was issued by the Commissioner of Labour and that the only explanation made for this by Tlhagale was that of admitting that the case of dismissed employees was not given the urgent attention it required as that was due to the contempt case, which involved Tlhagale himself as well as other senior members of the Union.

He said that it was only a month after the certificate was issued that he gave Lerumo Mogobe instructions to take the matter to Court and that Mogobe was, at the same time, busy with other matters which he thinks referred to the contempt of Court matter.

The contempt of Court matter, he said, was reported to have been stretching the resources and manpower of the Union.
Rahukya said there was also bad blood between old and new executives of the Union which prevented progress in the dismissed worker’s case.

The whole explanation, he said, shows that the contempt case was given more priority than the dismissed worker’s case.

He also said Tlhagale had no explanation on why he did not check on the progress of the dismissed workers’ case whilst they were working on the contempt case as the same law firm was dealing with both cases.

On the submission by Tlhagale that it was impossible to do anything about referring the matter to the Court between 15 December 2004, the date of the issue of the certificate, and the 12th of January 2005, the date that Mogobe was instructed to refer the matter to the High Court, the reason given being that this period must be looked at in the context of being “the end of year period”, the judge said that he rejects the view adopted by the applicant and that if this is how the applicant BMWU viewed this period, then this is damning to the BMWU case.

”Four hundred and sixty one of its members had been dismissed. BMWU has always contended that the dismissals were unfair; it should, therefore, have acted more prudently to ensure that it was fighting for the rights of its members and not just sitting back and doing nothing because it was end of the year,“ said the judge.

Apart from the reason of “the end of year period”, the judge said no other reason had been given for the delay, adding that the BMWU had, therefore, failed to take the court into its confidence.

All that was needed, the judge said, was to write a letter to the Registrar of the Industrial Court informing her that the dismissed employees were referring their dispute to the Court, attaching the certificate confirming the dispute and that there was no reason why this was not done.

The judge also accused the BMWU members who were dismissed for having failed to take the matter to the Registrar of the Court themselves and dismissed submissions by their advocate Bruinders that they could not have done so because they expected the BMWU to act on their behalf saying when weighing the explanation against the simplicity of referring the matter to the Court, then he would agree with the respondents, Debswana’s lawyer Myburg, that the members were supine.

The judge also said that he had considered the dismissed workers’ designations and that he was satisfied by virtue of their positions and their degree of education that they could have attended at the registry of the Court to enquire about the progress of their case.

Their failure to do so, he said, was damning to their cause particularly that the founding and supplementary affidavits are completely silent on the matter.

He dismissed Bruiders’s submission that the dismissed workers could not have done so because they were scattered saying that does not show how far they were from the registry of the Court and why they could not individually or collectively travel to the registry and refer the matter to the Court.

When asked to comment on the judgment, Mogobe said that they wanted to study the judgment first before deciding on whether to appeal.

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