Monday, August 15, 2022

Court grants two-day employee thousands of pula

In an usual labour case in Francistown, Industrial Court Judge President Elijah Legwaila on Wednesday ordered Arab Contractors to pay Power Kuswane P10 500 for substantively and unprocedurally firing him.

Kuswane had worked for the company for only two days before he got the boot.

Despite the short period of employment, Kuswane took his former employer to court on the grounds that he had been unfairly dismissed.

Pronouncing judgment, Justice Legwaila said Kuswane could not be dismissed after two days without reasons for the dismissal and without notice or a hearing.

“The second point is that two days can never be adequate to judge an employee’s ability. The respondent had obviously studied the applicant’s CV to determine whether he was fit to do the job he was hired for,” said the Judge President.

Legwaila held that the employee had to be given enough time to perform in order to form a view about his capability.

“Two days can never be adequate for that purpose,” he said.

Justice Legwaila further noted that when Kuswane was fired on the second day, Arab Contractors had already employed another person.

“When did he decide to employ a second person? What did he say to the applicant before terminating?” asked Justice Legwaila.

The court held that Kuswane was employed on indefinite terms and was entitled to have his side heard before he was dismissed.

“In other words, he should have been called for a hearing and told of his failures and offered the opportunity to defend himself. This was not done,” concluded the judge.

In its defence, Arab Contractors had contended that Kuswane was employed for one week trial after which he would be employed on a three-month probation.

The judge said no such probation was communicated to the applicant when he entered his contract as required by Section 20 (3) of the Employment Act.

The court further held that if the applicant was not informed of any period in writing then his appointment was on indefinite terms and all the conditions applicable to appointments on indefinite terms such as notice, equal to the pay period, valid reasons for dismissal, etc, applied.

In conclusion the court said Arab Contractors had contravened ILO Convention No.158 of 1982 Article 4, which provided that the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capability or conduct of the worker.

The contractor was also held in breach of Article 7 of the ILO Convention.

Arab Contractors was ordered to pay the applicant through the Office of the Registrar of the Industrial Court on or before 31 March 2011.


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