Should the over 1500 striking public servants sacked have been given a hearing? And should the right to a fair hearing be discarded in a strike situation?
These are some of the significant questions that High Court judge Key Dingake has to battle with as he prepares judgment in the case in which the Botswana Federation of Public Sector Unions (BOFEPUSU) is challenging the dismissal of scores of its members following last year’s historic public sector strike.
Judge Dingake reserved judgment after a hearing that was widely characterized by burning questions and little arguments about the obvious.
It was a day for tough questioning for both lawyers representing the fired lot and the government legal team.
The Unions said that had there been a hearing, the employer would have realized that some of those employed were working in hospitals but were not essential service employees.
“The strike was found to be unlawful by the Industrial Court…the ensuing dismissals were unlawful because the dismissals were not preceded by a suitably tailored hearing,” said Union lawyer Martin Brassey.
“What would have been a suitably tailored hearing in the circumstances of this case?”asked Dingake.
Answering judge Dingake’s question, Brassy, said that the individuals concerned should have been charged individually and, where possible, a common charge to the numerous employees who were alleged to be engaging in acts of violence.
“How would the individuals be served?” asked Dingake.
In response, Brassey said that the charges preferred could be served on the employees personally or through the union if it proved impossible to notify them of the charges against them individually.
“Every individual is entitled to a hearing…the fact that they form part of a group of people cannot derogate…,”argued Brassey.
“What about the Ultimatum?” the judge pressed further. Dingake wanted to know whether the Ultimatum, urging the striking employees to return to work or risk being fired from work, could be discarded.
However, Brassey said that the ultimatum does not serve as a hearing because employees were not given an opportunity to answer a charge.
“They made no effort to hold a hearing and didn’t even plead with the Union for assistance…the respondent felt that a hearing would have been an exercise in futility,” he added.
Brassey accused government of harbouring plans to get rid of certain employees it deemed to be ringleaders during the strike.
He said instead of approaching the issue rationally, the government wanted to demonstrate its massive power. He said, as it stands, the employees’ rights to a fair hearing were forfeited merely because they happened to be with others at the time.
For his part, the government’s lawyer also raised the stakes, Advocate Anton Myburgh, said that during strikes employees who refused an ultimatum to return to work were more likely to be sacked.
“Tell me, in the circumstances of this case, are you suggesting that this matter should have been resolved that way?” asked Dingake.
In reply, Myburgh stated that while he acknowledges individuals are entitled to a fair hearing before they could be dismissed from work, in the current matter, it could not be reasonably have been expected to conduct a hearing because of the strike situation.
“A collective hearing would have been impractical my Lord,” he stated, adding: “The essence may not always be a case of a hearing but acting fairly.”
He said that sometimes an urgent action had to be taken and all the normal presumption of a fair hearing had to be rebutted by the prevailing situation. Myburgh said that the strike had turned violent and offered no room to conduct a hearing
“In this particular case, why couldn’t you hold a hearing?” the judge questioned.
Myburgh told Dingake that it was not a question of impossibility but acting fairly. He said that government had acted fairly by interdicting the strike by essential service workers at the Industrial Court and subsequently halting it before issuing press releases and an ultimatum.
“Do you accept that other than the Industrial Court there was no hearing,” asked Dingake.
“There was a very substantive hearing,” replied Myburgh.
He added that there was an obligation on the part of the union to ensure employees comply with the court order by reporting for duty.
“When would a hearing be extended to a collective?” inquired Dingake.
“It can take the form my learned friend suggested,” Myburgh replied.
“Do you know of any case similar to the present where a hearing was conducted in relation to a collective?” Dingake further asked.
“No, my Lord,” said Myburgh.
“Should a letter have been dispatched to the Union,” asked Dingake.
“They had every opportunity to plead for their members not to be dismissed?” stated Myburgh.