The Industrial Court in Gaborone has ruled that by refusing the Trainers and Allied Workers Union (TAWU) access to its premises, the National Food Technology Research Centre (NFTRC) was in breach of an agreement entered into by both parties in June last year. Consequently, the court ordered the Centre to allow the Union such access within 14 days in an order issued last Wednesday.
Within the same time frame, the Commissioner of Labour will appoint a mediator to determine whether TAWU’s membership at NFTRC meets the statutory threshold of one-third of staff members eligible for membership. If the result comes back positive, NFTRC shall grant TAWU recognition within seven days of such determination being made. This particular order represents full victory for TAWU which asked the court to declare that the Centre was in breach of an agreement it made with the union in June last year.
In terms of this agreement, the Centre was obliged to allow the Union to coordinate its affairs and carry out its business on its premises. However, NFTRC’s managing director, Dr. Charity Kepaletswe-Kruger, subsequently denied the Union such access.
When he was still in post, the chairperson of the NFTRC board of directors, Leach Tlhomelang, had granted TAWU recognition which was basis upon which the Union conducted its affairs on the Centre’s premises. However, along the way, the ministry of the agriculture (under which NFTRC falls) withdrew such recognition on grounds that Tlhomelang had no authority to grant it in the first place.
When the Union sought permission to address staff, Kepaletswe-Kruger said that management could not accede to such request “on the basis of the ministry’s position.” In his judgment, Justice Christian Diwanga says that by doing this, NFTRC was in breach of the agreement that assured TAWU access to its premises.
NFTRC did not come out of this encounter empty-handed.
TAWU’s other plea was that the Centre’s decision to derecognise it be declared null and void.
At the centre of this issue was a letter that Tlhomelang wrote in February this year, granting the union recognition.
NFTRC’s lawyer, Mboki Chilisa, challenged the validity of this recognition by arguing that at the time that it was granted, NFTRC had no functional board, that the ministry of agriculture notified TAWU that it had no intention of extending voluntary recognition to it and that TAWU was well aware of this state of affairs. It also turned out that there was no formal resolution by NFTRC’s board and that the required quorum of seven directors was never constituted. Diwanga’s determination of this particular point is that the aforementioned agreement does not confer recognition on TAWU and that “surely Tlhomelang alone cannot be said to be the board of [NFTRC].”
“Therefore, the letter by the board chairperson of [NFTRC] which purported to grant [TAWU] recognition is invalid and of no force and legal effect,” the judgement says.
NFTRC’s point-scoring also extends to one point of law that the lawyers fought over earlier on. Contrary to one provision of the Rules for the Conduct of Proceedings in the Industrial Court, TAWU filed its replying affidavit two and half months (69 days) after the delivery of NFTRC’s answering affidavit and did not give an explanation.
Chilisa asked the court to strike out TAWU’s affidavit for the said contravention and also because (in contravention of another court rule) TAWU failed to apply for pardon for the late submission. The explanation by TAWU’s lawyer, Reuben Lekorwe, was that the affidavit was filed late on account of an anticipated settlement of the dispute.
However, the court upheld Chilisa’s points and struck out TAWU’s replying affidavit. As a result, the Union found itself hamstrung when the point about recognition granted by Tlhomelang was argued. NFTRC contended that TAWU had been notified that the Centre had no functional board and that it would not be given recognition.
The Union could not argue against this point as its replying affidavit was disallowed. The judgment reads: “The court has to accept these averments in the absence of a reply thereto by [TAWU].”
The law having taken its course, the matter is now down to mathematics. TAWU says it has acquired the statutory threshold that allows it to conduct trade union activities on NFTRC premises. On the other hand, NFTRC refutes such claim, stating that some employees that TAWU claim as members don’t actually qualify for such membership. Where such dispute exists, the Trade Disputes Act provides that the Industrial Court may direct a mediator to conduct a ballot to settle the dispute.
That is the exercise that a mediator appointed by the Commissioner of Labour will undertake. Should TAWU’s claim prove to be true, NFTRC would be legally bound to grant the Union recognition within seven days.