Regulation 30 of the Emergency Powers Act gets its first legal test tomorrow at the Francistown Industrial Court when three former Botswana Land Board, Local Authorities & Health Workers Union (BLLAHWU) employees challenge their retrenchment via an urgent application.
Wabakwa Mbise, Major Tokong and Tshwaro Morubisi were Regional Organisers having been recruited from the public service. On February 11, 2021, all three received letters from the Union’s Secretary General, Ketlhalefile Motshegwa, notifying them of their retrenchment after the fact: the letter says that their termination is effective February 2021, which implies January 31, 2021 as the effective termination date. Down the road, there are issues that the trio, which is represented by attorney Mboki Chilisa, would want to contest but for now are making an argument that their termination contravenes Regulation 30 of the Emergency Powers Act.
The latter was made at a special parliamentary session and is designed to deal with the effects of the COVID-19 pandemic. Alongside the regulations is a state of emergency that was declared by President Mokgweetsi Masisi last year and is still in force. In terms of the regulation in question and as a way of providing financial shelter at a time that employees need it most, employers shall not retrench employees during the state of emergency. Mbise, Tokong and Morubisi were retrenched during the state of emergency and in their court papers, say that their retrenchment will bring financial ruin that Regulation 30 was crafted to guard against.
The trio wants the Industrial Court to declare the termination letter null and void and that they be allowed to challenge its merits while remaining Union employees.
“In the event that the interdict is not granted, we don’t have an alternative remedy in due course on the basis that the respondent will proceed to employ other people to our positions and therefore the court will not be able to grant reinstatement. Compensation will not enable us to pay our respective loans and maintain our families especially during the COVID-19 pandemic, where it is extremely difficult to find alternative employment and the costs of living have escalated,” reads an affidavit deposed to by Mbise on behalf of her colleagues.
Motshegwa’s termination letter explains that the retrenchment was the outcome of a restructuring exercise that recommended that Regional Organisers should hold a university degree – an academic qualification that none of the retrenched officers hold. In contesting their new condition of service, the trio point out that in terms of BLLAHWU’s own constitution, such recommendation should have been referred to and endorsed by the Governing Council – which didn’t happen.
It turns out that some other Regional Organisers who also don’t hold a university degree were retained while only three were terminated. In her affidavit, Mbise argues that the latter constitutes “a violation of the parity principle.” She then alleges that they are mere collateral damage in the “ongoing” power struggle between factions of the Central Executive Committee. As Sunday Standard reported last week, the Union’s First Vice President, Nicholas Mothelesi, has been suspended and alongside the Second Vice President and Treasurer has gone to court to challenge the extension of Motshegwa’s contract of employment.
Outside the court process and days before the urgent application was made, Sunday Standard had asked Motshegwa to give the Union’s side of the story with regard to the retrenchment of the three Regional Organisers. At press time, we were still trying to establish how the set of written questions sent to his personal email ended up being posted to a BLLAHWU WhatsApp. At press time, a response had not been tendered.
