The Industrial Court has ordered the Rural Industries Promotions Company (Botswana) RIPCO-B to lift the suspension of acting Managing Director, Truman Phuthego, and to stay a scheduled disciplinary hearing against him.
Judge C. Diwanga last Friday ordered RIPCO to lift Phuthego’s suspension within seven days. He also restrained the parastatal from proceeding with the planned second disciplinary action.
Justice Diwanga said the second disciplinary action against Phuthego was unlawful and unfair as it violated his right not to be tried twice for the same offence ÔÇô a legal principle known as double jeopardy.
Phuthego was suspended from duty after he was charged on 25 July 2012 for which he attended a disciplinary hearing on 02 August 2012. He was accused of breaching the recognition agreement between RIPCO and NALCGPWU-manual workers union which excludes members of management from joining the union; breaching the Trade Union and Employers Organisations Act which precludes managers from membership of a negotiating body and failing to disclose interest (his membership of the union) at a Board meeting of 6 March 2012.
On 26 October 2012 he was informed that the findings of the disciplinary hearing were contradictory and could not be relied upon to reach a fair conclusion. RIPCO then tried to convene a second disciplinary hearing and three days later slapped him with six new disciplinary charges.
The second disciplinary hearing was scheduled for 9 November 2012 at 1430hrs. Phuthego, however, filed an application with the court to have the second hearing quashed. He argued that this exposed him to double jeopardy. The judge ruled that only under exceptional circumstances can a second hearing be conducted against an employee and that RIPCO had failed to demonstrate such in the case of Phuthego.
RIPCO care taker Managing Director, Dr Matz Mosienyane, on the other hand argued that there were contradictory findings of fact by the disciplinary chairperson in the first hearing. Mosienyane claimed that there was collusion between the latter and Phuthego which warranted another hearing. Court found that these were unsubstantiated claims.
RIPCO also argued that the second hearing was based on the same factual matrix that was covered in the first disciplinary charges and that greater precision was taken in the manner in which the subsequent charges were drafted. Failure to provide record to support this, the judge said, brought into doubt the real reasons for convening the second hearing.
Earlier this year, the entire management team of RIPCO was suspended for alleged unionism. The managers have however been reinstated by the Industrial Court.
Lerumo Mogobe and Yandani Boko represented Phuthego while Ottto Itumeleng appeared for RIPCO.