Trade unions typically fight to keep people employed but in an odd case out of Maun, a Mahalapye-based union is fighting tooth, nail and spanner to get a rehired employee refired.
The employee in question is Andre Gerrit de Waal, a white Group Technical Manager at Halfway Toyota Botswana, a Maun vehicle dealership. Mention of race is relevant within context of the case that the Botswana Transport and General Workers Union (BTGWU) has made.
Last month, De Waal was hauled before an internal disciplinary process on theft charges – which the company’s policy describes as “unauthorised removal of company property.” The property in question was a Toyota Land Cruiser engine mount and deactuator set which a security guard found upon searching a company vehicle that only De Waal uses. The search, which was routine, happened as he was knocking off in the late afternoon. In other words, he was caught red-handed. The case was reported to the local police station. A consequent disciplinary panel found De Waal guilty and he was dismissed him as a result.
Weeks after he had left the company, some sealed containers of motor oil were found hidden in a skip within company premises. This suggested that the culprit had stolen the oil and planned to retrieve and remove from it the premises later on. Following this discovery, management decided to engage a polygrapher to sniff out the culprit. Upon learning that its members were to be subjected to a lie detector test, BTGWU notified Halfway Toyota Botswana in an email message that it wouldn’t allow that. The message, sent by Tsenang Nfila, the Union’s Executive Secretary, reads as follows: “We are informed that you intend to use a lie detector test on our members at the workshop. Please take notice that we have advised the members not to consent to take the polygraph test.”
Those same members soon learned that De Waal would himself be taking the lie detector test to ascertain whether he had indeed stolen the engine mount and deactuator set. That caused some bafflement because there was no uncertainty: he had been caught red-handed. De Waal passed the test and was reinstated – which is why BTGWU is now up in arms.
In a March 23, 2023 letter to the company, the Union demands “the immediate revocation of Mr. Andre Gerrit de Waal’s reinstatement to his former position of Group Technical Manager after he was dismissed from work for theft/unauthorised removal of property of the company.” The letter says that De Waal’s lie detector test was “a deceitful ploy to wriggle out Mr. De Waal from his self-imposed predicament for ostensibly passing a polygraph test against overwhelming evidence against him.”
BTGWU sees De Waal’s reinstatement as racism because in the past, black employees found guilty of the same offence have never been given a chance to be redeemed by a lie detector test. A related point the Union makes is that there was no need for him to take this test because the company had all the evidence it needed to prove his guilt.
“Mr. De Waal’s reinstatement is bordering on racism – his kind can contravene the Company’s Disciplinary Policy and Procedure with impunity, with absolutely no consequences. There is not any other reason one can arrive at why Mr. De Waal was reinstated after committing a dismissible offense,” Nfila’s letter says.
While he uses a different set of words, the Union’s lawyer also makes a racism charge against Halfway Toyota Botswana.
“It is our considered view, therefore, that the special treatment accorded to Andre De Waal by introducing the polygraph test after the conclusion of the disciplinary process where he was found guilty, cannot be justified and falls within the definition of discrimination provided in the company’s Disciplinary Policy and Procedure – any distinction, exclusion or preference made on any arbitrary grounds, including but not limited to race, etc which has the effect impairing equality of treatment in the workplace,” reads legal opinion rendered the Union by Sesupo Mosweu, Lead Consultant at Labour Matters Inc.
As the Union, Mosweu’s reasoning is that the lie detector test was unnecessary because “the evidence tendered at the disciplinary hearing was conclusive on his guilt.”
Sunday Standard has independently established that some Batswana employees who were found guilty of theft were summarily dismissed – and caned at the Maun customary court. Mosweu says that the manner in which De Waal was treated “cannot be justified other than on the grounds of race and consequently that the company committed an act of prohibited or unfair discrimination in favouring Andre De Waal purely because of his race.”
Such discrimination is in contravention of the National Industrial Relations Code of Good Practice – which imposes a responsibility on trade unions to prevent discrimination as well as promote equal opportunity and good employment relations. On the basis of the foregoing, BTGWU is trying to get De Waal refired. In the March 8, 2023 letter, Nfila writes that “this issue has adversely affected the employees’ morale and has potential to cause serious mistrust against Management.” To that end, he wants the company to “revoke the reinstatement of Mr. De Waal with immediate effect. This not a matter we can take lightly.”
Mosweu’s own legal advice is that “the Union is entitled, in line with its responsibilities under the National Industrial Relations Code of Good Practice, to demand that the company reverse its decision to reinstate Andre De Waal as that demand would be consistent with the Union’s obligation to prevent discrimination and to promote good employment relations.”
The company has flatly refused the Union’s demand, pointing out that the BTGWU cannot dictate to it what it should do. In response to Sunday Standard’s questions, the Dealer Principal, David Matlhape, explained that De Waal was reinstated on the basis of “new evidence” that was presented at an appeal hearing. He wouldn’t provide the specific details we sought, noting that the matter is “not for public consumption” and that “the employee has a right to privacy and confidentiality.” Interestingly, previous theft cases at the dealership have been reported to the police station and the culprits were hauled before the customary court where they were caned. Such process generated information that is now part of the public record.
Matlhape broadly explained that Halfway Toyota Botswana complies with the Labour Relations Act and all other relevant labour legislation.
“The discovery (“truth-finding”) methods, techniques and tools used in such disciplinary hearings are best practice, case dependent and not prescriptive/specified in law or terms and conditions of employment/company disciplinary policy. Halfway Toyota Botswana upholds all standards of employment equity, gender and race equality in its conduct, culture and values. The race, gender, nationality or skin colour of any employee does not prejudice, promote or introduce bias into the employee’s fair and equitable treatment in disciplinary or other company matters. Halfway Botswana deeply respects its partnership with the government, unions, industry and society in general as investors, and aim at all times to promote job creation, career growth, leadership talent and skills development of Botswana nationals as an imperative,” he said in an email response.
What Mosweu asserts in his legal opinion disputes the points that Matlhape raises. Mosweu argues that the not-guilty finding is inconsistent with the company’s own Disciplinary Policy and Procedure – which provides that the Dealership Principal is permitted to review a case where it is determined that the outcome of the hearing derailed from the policy guidelines and established employee relations practices.
“It is worth noting that the Disciplinary Policy and Procedure does not empower the Dealership Principal to review the case because of irregularities and inconsistencies as stated in the Group Human Resources Manager’s letter. It must be shown that there was a departure from the provisions of the Disciplinary Policy and Procedure and/or from established employee relations practices to the detriment of the employee,” says Mosweu’s legal opinion, adding in another part that the Dealership Principal is not empowered to review the case after the appeal stage. “The Dealership Principal can only review the case after the disciplinary hearing stage.”
Nfila says that BTGWU will be registering a dispute with the District Labour Office and that its complaint will be based on racial discrimination.
