The Government’s decision to terminate contracts for COVID-19 Scorpions has backfired as the State faces at least two possible lawsuits.
The Botswana Federation of Public Sector Unions (BOFEPUSU) has since served the government with a letter notifying it of its intention to bring the matter before the High Court.
The Botswana Patriotic Front (BPF) also followed suit and made its position clear that it would soon approach the High Court for redress.
In a letter dated 8 August 2020 addressed to the Ministry of Local Government, BOFEPUSU Deputy Secretary General Ketlhalefilwe Motshwegwa states: “We write at the instance of our members who were employed as COVID-19 Scorpions in town and district councils across the country on various dates”
Motshegwa said their members were appointed on various temporary terms as defined by Section 13 of the Public Service Act.
He stated that their members have inform the union leadership that they have received several letters of intention to terminate their employment on the basis of General Order 23.
“We have had sight of templates and a savingram issued by your office directing the local authorities on how to implement General Order 23, we wish to bring to your attention that Annexures are not in line with General Order 23.4 as none of the templates speaks to the one month notice stipulated by General Order 23.4, but same is captured in the savingram,” said Motshegwa.
He added: “Bringing the above issue to the attention of your office must not be construed to mean that we agree with the procedure adopted in an attempt to terminate the appointment of our members. We wish to bring to your attention the provisions of Section 26(1)(a) to (e) of the Public Service Act in the event same escaped the attention of your esteemed office.”
Motshegwa said the Public Service Act does not permit termination of Public Servants on notice as provided for by General Order 23 except for those employed as Permanent Secretary, Deputy Permanent Secretary, Head of Department and those in Senior Management Positions, and even for such class of employees there are specific grounds for which they can be terminated as per Section 26(2) (a) to (d).
“This clearly presents a case of there being contradictions between the General Orders and the Public Service Act, the general orders cannot under any circumstance be supreme over legislation. Further thereto General Orders only amplify what is contained in legislation, refer to General Order 3.2 in that respect,” said Motshegwa.
BOFEPUSU’s view is that unless COVID 19 Scorpions appointments are terminated as stipulated by Section 26(1) of the Public Service Act, there exists no basis at law to justify termination of their employment.
“Take notice that we stand ready to challenge the envisaged terminations in court should you elect to proceed contrary to the law and our advise herein. Take notice that in the event the matter ends up at court, the employer would in the end incur the same liability as it relates to salaries,” said Motshegwa.
The unionist added:“We are aware that the employer may defend itself on the basis that the COVID19 Scorpions were employed erroneously, which at law is known as mistake in contract (Unilateral Mistake).Take notice that such a mistake is not justified, and the law doesn’t give relief for errors of judgment as that would make enforceability of contracts difficult as parties can simply rescind from contracts on the basis of errors of judgment.”
The BPF has also weighed in as it also intends interdict the government’s decision to terminate the contracts of Covid-19 Scorpions.
The party’s president Biggie Butale expressed concern over the decision by the Ministry of Local Government and Rural Development to terminate the services of temporary SHE officers commonly referred to as Covid scorpions.
“The dishonesty displayed by the portfolio minister, Eric Molale over the matter in Parliament yesterday has left the BPF with no option but to demand the immediate reinstatement of the Covid Scorpions,” said Butale.
He said: “It should be recalled that these young people were initially engaged on a 10 months contract of an annual salary of between P51422-P60372 but their salaries were drastically dropped to an Ipelegeng rate of P560/month. Instead of addressing this abnormality, following public outcry, the government decided to terminate the contracts under the guise that they were correcting a mistake.”
“The BPF therefore calls on the Covid-19 Scorpions to be reinstated within 48hours failing which the party will have no choice but to assist the poor workers to institute legal action against the government,” said Butale.
The COVID-319 Scorpions were employed to among other things enforce rules and regulations relating COVID-19 restrictions.