Gaborone High Court Judge Dr Zein Kebonang last week ordered government to pay former employees of Botswana National Youth Council (BNYC) the balance of their contracts as damages. In papers filed before court, the former BNYC employees, who were dismissed in 2012, argued that government’s decision to terminate their employment was substantively and procedurally unfair as there were no valid grounds justifying termination.
The employees further said they were not given a hearing before their contracts were terminated.
When delivering judgment, Justice Kebonang dismissed government’s contention that it could terminate the employees’ contracts at will.
This was after the state attorneys argued that all what was required of government under common law was either to pay the employees off or give them notice of intention to terminate their contracts, adding that no reasons for termination were necessary.
But Justice Dr Kebonang disagreed, insisting that the employer’s decision regarding employees must always be subject to just cause.
“Termination made in bad faith or motivated by malice must never be allowed to stand. Government’s position that it was entitled to terminate the employees’ contracts at will and for no reason at all is in my view untenable. The common law position has in my view been varied by the Employment Act which requires just cause in any dismissal or termination of employment case,” he said.
He added that a just cause requires that there must be a fair and honest reason for terminating an employment contract, adding that such reason should not be trivial, arbitrary or capricious.
“In my view the termination of one’s employment at will without any basis lacks good faith and amounts to less than favorable treatment. Under the Employment Act, an employer cannot simply terminate a contract of employment without probable or just cause,” said Justice Dr Kebonang.
He reiterated that the common law requirement that permits the employer to terminate a contract at will clearly provides for less that favorable treatment, provides no recourse for an employee and permit arbitrariness and unaccountability.
“The common law position and clause 14 of the government’s conditions of service must therefore give away to the Employment Act as the latter provides the necessary safeguards and is therefore more in tune with the requirements of affording employees favourable treatment. In any case, the Employment Act as a statutory instrument must take precedent over common law,” argued Justice Dr Kebonang.
By offering the employees three year contracts of employment, said Justice Dr Kebonang, government created a legitimate expectation that they will have continued employment for at least three years, such that their employment could not be terminated without a fair hearing.