Lobatse High Court judge Unity Dow has ordered that the termination from employment of Nkosanah Ndaba by the Botswana Technology Center, where he was an acting Managing Director and Director of the Technology Information Department, was without notice, a hearing or justification and, therefore, both substantively and procedurally unfair.
As a result, Dow ordered the following: that Ndaba was entitled to be restored to the financial position he would have been had BTC not unfairly dismissed him, for the period from 1 April 2008 to 17 April 2009, the latter being the date of the order.
Further, that Ndaba is entitled to such a salary, together with such benefits as would have been paid to him had he not been dismissed.
Ndaba is entitled to the market value of such benefit that he did not receive or enjoy, such as, but not limited to, the rental value of the institutional house he had to vacate, if that is applicable; such amounts that he had to pay to replace any medical aid scheme he lost, if that is applicable and the value of any work benefit he lost as a result of the purported termination.
Dow also ordered that Ndaba was entitled to a three-month notice, or salary in lieu thereof, and BTC, having failed to give such notice, is to pay Ndaba the equivalent of three months’ salary he was earning in March 2008.
Dow ordered that all amounts shall attract interest at the rate of 10 percent from the date of judgment to the date of payment and that BTC pays costs of the application and the Registrar assesses damages.
On the prayer of reinstatement by Ndaba, Dow said the factors favouring it are that before his dismissal, Ndaba had occupied the positions of Director of the Technology Information Department and Acting Managing Director. Also that he had worked for BTC for close to ten years.
But she said that the reasons against reinstatement are that Ndaba’s job entailed attending Board meetings and that he was clearly part of those officers at the helm of the organasation.
She said that it is hard to imagine that Ndaba could easily go back and take instructions from BTC board after the (court) case. Further, she said, his dismissal was obviously on the advice of BTC’s attorney who is now defending BTC.
Returning to work, she said, would entail rebuilding a relationship between the two of them, a matter that may not be an easy one.
Being reinstated to the position of acting manager might entail Ndaba sitting with the board to formulate future board policy on the way forward on matters raised by the judgment and that this would be an awkward situation.
Doctor Pusoentsi represented Ndaba whilst Letsogile Martin Dingake represented BTC.