On 1st June 2019, the Sunday Standard ran with a report under the heading ‘Concurrent jurisdiction of Industrial Court and High Court problematic-COA.’ Therein, reference was made to the judgement delivered by the President of the Court of Appeal (COA) Justice Ian Kirby in a termination of employment matter between Khoemecau Copper Mining and its erstwhile employee, Stephen Wallace. Wallace had taken his matter to the Industrial Court where he succeeded. Subsequently, Khoemecau appealed the Industrial Court decision to the COA. It is not stated in the newspaper report how the apex ruled in the matter. I could not access the judgement to find out the verdict. I will therefore rely heavily on the newspaper’s report on this judgement to bring context to this conversation. It is however not the COA verdict that is important but firstly the problematic nature of the ‘concurrent jurisdiction’ of the two courts as reported by the newspaper and secondly, the role if any, Trade Unions have played to lobby parliament to rectify the problem.
It is important to define what concurrent jurisdiction is. It is defined as a situation ‘where two or more courts from different systems simultaneously have jurisdiction over a specific case.’ It means therefore that employees in Botswana are free to choose which court they want to approach for their termination of employment disputes to be heard and determined. While it was expected that all such disputes would be the preserve of the Industrial Court given that it is ‘a specialised Court of Law and Equity as established by Section 15 of the Trade Disputes Act No 15 of 2004; that its jurisdiction is ‘to hear and determine all trade disputes except disputes of interest and that Section 21 of the TDA permits a party to the proceedings to appear in person’, its ‘sister court’ in the form of the High Court remains seized with the very same disputes for hearings and determinations for various reasons. And yet, the standards and principles of resolving a termination of employment dispute at the two courts are not the same and inevitably, different outcomes should be expected.
Kirby JP as per the judgement referred to herein, is holding that harmonisation of the Employment and the Trade Disputes Acts is paramount because ‘the same facts may conceivably lead to a different result depending upon the forum chosen by the litigant.’ That is to say and if my understanding of the foregoing statement is correct, the same facts for a termination of employment dispute presented by an aggrieved employee at the Industrial and High Courts may not attract the same outcome. Kirby JP holds that ‘….A termination of employment effected in terms of the Employment Act without applying the rules of natural justice may be found to be lawful by the High Court, applying common law, but could be found unlawful applying the Minister’s Code of Good Practice in proceedings brought in the Industrial Court. And certainly the compensation ordered by the Industrial Court, applying the equitable principles authorised by Section Appeal 27 (4) of the TDA, may differ substantially from the common law damages awarded by the High Court.’ My little understanding tells me that Kirby JP is making it very clear that there is bound to be no point of convergence between labour and common laws when determining an employee’s termination of employment dispute whose origin is either the Industrial Court or the High Court. Industrial Court applies equity and fairness principles based on international labour standards which are the cornerstones of determining a labour dispute between an employee and an employer.
Following this judgement by Kirby JP which is central to the resolutions of termination of employment disputes in this country, I had expected trade unions to be vocally lobbying Members of Parliament to deal with the harmonisation of the Employment and Trade Disputes Acts. It appears there is no vocal lobby from trade unions because I am yet to hear such lobbying. It is my honest believe that trade unions are doing an unpardonable disservice to the labour movement and Batswana employees they do not represent given the imminent disadvantages of taking their matters to the High Court and COA. As members of the tripartite alliance (others being government and business), trade unions have this structure at their disposal to make use of. They also have international organisations they are affiliated to like the International Transport Workers Federation to lobby for support.
The other important matter worth noting would be the establishment of the Industrial Court of Appeal that will be at the same legal status as the COA. Customary Court has the Customary Court of Appeal. Our neighbour South Africa has established a Labour Appeal Court that hears appeals from the Labour Court. ‘The court was established by the Labour Relations Act, 1995, and has a status similar to that of the Supreme Court of Appeal.’ The Industrial Court of Appeal I am suggesting would hear and determine labour disputes originating from the Industrial Court on the principles of law and equity as provided for in the TDA together with the overall primary objectives of the TDA as opposed to the principle of common law. That is, the Industrial Court of Appeal will be a court with exclusive jurisdiction to hear and decide trade disputes.
In conclusion, Kirby JP has provided a ‘free lesson’ on the shortcomings of the Employment and the Trade Disputes Acts and the demonstrable need in his judgement to harmonise them. Further, he has provided the same lesson on the issue of ‘concurrent jurisdiction of Industrial Court and the High Court.’ It is in the interest of the labour movement on one hand and other Batswana employees on the other that issues raised in Kirby JP’s judgement are taken heed of with the urgency they deserve for labour relations issues to be determined to their logical conclusions in the spirit of fairness and equity amongst others. Members of Parliament are also called upon to act on issues raised by the learned Judge. I am prepared to be persuaded otherwise as always. Judge for Yourself!
As we approach the festive holidays, let us comply with all Covid-19 protocols. It is in our interests to do so.
