The Directorate of Public Service Management (DPSM) and the Botswana Federation of Public Sector Unions (BOFEPUSU) will once again square up in court, after the latter dragged government to court for unfair dismissals of essential services cadres who went on the recent public sector strike.
The matter is due for status hearing before Justice Key Dingake on December 12th.
BOFEPUSU, through Secretary General Andrew Motsamai, and attorney Tshiamo Rantao, want the dismissals to be reviewed as they are in breach of the laws and conditions of service governing public servants.
On May 16th 2011, government dropped a bombshell on striking public servants, informing them that those who had disregarded a court order ordering them to return to work were summarily dismissed. The dismissed public servants were mostly employed in hospitals, among them cleaners, gate keepers, night watchmen, gardeners, cooks, and boiler operators.
In his founding affidavit, Motsamai argued that government was in breach of the public service general orders, which require that every public officer against whom disciplinary action is taken should be given an opportunity to present his defence.
“Instead of publicly issuing ultimatums, government should have allowed public officers to present their defence through their representative unions, especially since the strike was peaceful. An ultimatum cannot be a substitute for the right to be heard,” said Motsamai.
BOFEPUSU also castigated government for acting under the misguided view that all persons who worked in hospitals and clinics were rendering essential services. They argued that a lot of the so-called essential services cadres were not even aware of their classification.
Motsamai said the dismissed employees were labourers who might have been working in essential services like hospitals and clinics, but were not providing health care.
He said ILO statutes have noted that there are certain categories within the essential services cadre, such as labourers and gardeners, who should not be deprived of the right to strike.
He said the unions expected government to at least notify the employees that they provided essential services, and that they were part of the 30 percent who were required to remain behind.
“In any case, the offence committed by the said employees was not so serious as to warrant dismissals. Also, DPSM had granted 70 percent of the employees’ permission to go on strike. Health Minister Dr John Seakgosing went public declaring that the strike was not a threat to the public health sector as 95 percent of all health workers had remained at work. The 95 percent was in excess of the 30 percent that government required to remain at work,” said Motsamai.
He also accused government of being disproportionately unfair by giving some employees final written warnings and refusing to reinstate others. The order of May 10th, which compelled striking employees to return to work, was appealed, and therefore suspended, on the same day that it was handed down, such that it is factually incorrect to say that public officers refused to comply with it.
“We communicated this order to those members who attended our public addresses. Those who did not show up at our meeting points would not have immediately been aware of the interim interdict,” said Motsamai.
He also explained that at the time when the order was handed down, the number of public servants who convened at the designated meeting points had gone down drastically.
This was largely due to the fact that workers preferred to stay at home as government was refusing to grant union permits to hold marches and demonstrations. The absence of workers at meeting points also made it difficult for the unions to communicate messages to the membership.
While efforts to pass the message to public servants throughout the country were on going, government decided to abruptly dismiss the striking public servants. Motsamai said it is incorrect for government to say that the essential services cadres had disregarded several court orders. He accused government of not making any efforts to bring the court orders to the attention of the striking employees. He added that the period between May 10th, when the order was granted, and May 16th, when the employees were dismissed, was insufficient to facilitate the return of all essential services cadres to work.
