Monday, September 20, 2021

Court throws out mine union case over pay package

The Industrial Court has dismissed an application in which Botswana Mine Workers Union were requesting for a separation package for its members employed by Majwe Mine Joint Venture (Pty) Ltd.

Industrial Court Judge Diratsagae Molomo ruled that the matter was not urgent and without any substantive evidence to support the separation package as requested by the union

According to court documents, the applicants (Union Members) are relieved (former) employees of the respondent (Majwe Mine Joint Venture (Pty) Ltd whose contract of employment were abruptly terminated due to an unforeseen termination of the principal contract between the respondent and Debswana Mining Company.

In his ruling, Molomo said the grounds for urgency as advanced by the applicantwere premised on the notion that their contracts had come to an end.

They alleged the respondent was a foreign company who was likely to leave the country soon after the contract had come to an end.

The judge said the claim turned out to be allegations unsupported by any evidence. Because the claim was presented to the court in a deposition under oath and the respondent has argued strenuously that this was a proper case in which appropriate actions should have followed by the court referring the matter to the police for further investigations and possible criminal charges of perjury.

“Such decisions even if so motivated remains the purview of the discretion of the court5 having assessed whether it was so expressed in jest, as a careless averment or in a state of desperation seemingly as to convey some sense of urgency,” said Molomo

The court also agreed with the private arbitrator who was engaged by the two parties.

The court said the arbitrator made a determination the essence of which was in favour of Majwe Mine.

“Such ruling remained un-assailed to the point of hearing this application. But the ruling of the arbitrator could have brought the matter to an end. However, the grounds upon which the arbitrator made a ruling were second guessed and it was at that point that having secured a legal opinion at that point, applicant sought to circumvent the hurdle they were unable to overcome to compel the respondent to honour a verbal agreement the effect which was to vary an aspect of their collective agreement,” said Molomo.

The judge said for the reasons that the applicant as lay people who in their plight sought to fight tooth and nail to secure what they consider to be running in the face of public policy, the court would be slow to visit suctions by way of cost they having acted in the honest belief that they had a case.  It is not in doubt that the Minutes reflect a proposal to negotiate. However, it must been apparent to them as so determined by this court, that at no point did the respondent make any undertaking or concession to engage in a process but rather the process as we read was consultative.

The judge also makes a determination of warning the leader of the Union Kitso Phiri by exercising its discretion to give him a stern reprimand on the issue of giving false information or unsubstantiated  averments possible amounting to perjury and that the court will not take any action against him(deponent).

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