Saturday, October 16, 2021

Ngwako gets her fair day in court against Botswana Post

The Francistown Industrial Court last week ordered Botswana Post to pay Oratile Ngwako, its former Security, Risk and Investigations Manager P300 000 for unfair retrenchment. 

The case came up before Justice Christian Diwanga.

According to court documents, Ngwako was employed by Botswana Post as a Security Investigation Manager on a fixed term contract which was to run from September 1, 2015 to August 31, 2018. 

Her employment was terminated on June 1, 2016 for the reason that her position had been phased out following implementation of Botswana Post’s New Value Centre Model.

The dispute centred on whether Ngwako’s retrenchment was for valid commercial reason and whether it was brought about through a fair process involving her. 

Ngwako contended in her court documents that her termination was both procedurally and substantially unfair. 

Ngwako demanded though her lawyer, Nkiwane Nbaba, that she be paid 26 months wages,     being the balance of her contract at the time of her termination.

On the other hand, Botswana Post represented by K Kelaotswe argued that during 2015 it engaged Stractics Consultants, a consultancy firm, which advised that the organisational structure was “top heavy” which meant that the wage bill of its managers at Head Office was too high. 

Botswana Post said employees were consulted regarding the findings of the consultants and a new strategy was coined – the New Value Centre Model to address the consultants findings. 

The new Value Centre Model strategy phased out the position held by Ngwako and introduced the two positions of Risk Manager and Security and Investigations Manager.

Ngwako told court that during April 2016 employees were only informed by Botswana Post management at a meeting that a new system was being implemented to improve the efficiency of the organisation. She said the meeting was called through an internal memorandum dated April 8, 2016 entitled “Consultation Process Kick Off”.

According to Ngwako, Botswana Post management made a power point presentation at the meeting of April 13, 2016 regarding the new structure and assured employees there would be no job losses.

She said there were further meetings which focused on the new model structure after which employees were to receive placement letters for positions in the new structure.

Ngwako said whilst expecting placement, she received the letter of termination dated June 1, 2016 stating that her position of Security, Risk and Investigations Manager had been phased out. 

Regarding the appeals panel established to hear and make a determination on appeals emanating from placements, Botswana Post said she did not appeal to the panel as she was not placed but terminated.

Ngwako further told court that regarding the positions of Risk Manager Security and Investigations Manager in the new structure she was not invited to apply for either position after her position was phased out. The positions were later filled within three months of her termination.

Delivering judgment, Diwanga said while the creation of the value centre model was to stem the financial bleeding that characterised Botswana Post over the years the creation of the applicant’s position worked against the very objective that the respondent wanted to address.

“Mr Seame who is the respondent witness said in his testimony that that positions were graded lower at around P19 000 each. Even if that was the position still their wages collectively exceeded the wages payable for the Applicant (‘s) position,” said Diwanga.

“For the afore going reasons the court finds that the retrenchment of the Applicant based on the reasons stated in the statement of the defence was not for a valid and fair commercial reason,” said Diwanga.

He further said in part of his judgment that the applicant’s employment was terminated following the phasing out of her position and two positions were created which related to the position she held. 

He under section 25(3) of the Employment Act to have first given the Applicant priority of engagement.

“The upshot of the afore-going is that the court finds that the retrenchment of the applicant was both procedurally and substantially unfair,” Diwanga said.

In determining the amount of compensation and damages the Judge depended on Section 27(4) of the Trade Disputes Act. He said it was in the court’s considered view that 10 months monetary wages will be appropriate.

“The respondent is directed to pay the applicant the sum of P300 000 being 10 months wages as compensation which amount shall be paid through the Registrar’s office within 14 days. There are no costs of the suit,” concluded Diwanga.

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