Dube and Another v American Embassy/Botusa (IC. 897_2006) [2009] BWIC 1 (30 January 2009)
R
IN
THE INDUSTRIAL COURT OF BOTSWANA
HELD AT GABORONE
CASE NO. IC.
897/2006
IN THE DISPUTE
BETWEEN:
OLGA DUBE &
ANOTHER APPLICANTS
AND
AMERICAN
EMBASSY/BOTUSA RESPONDENT
CONSTITUTION
OF THE COURT
M.
EBRAHIM-CARSTENS INDUSTRIAL COURT JUDGE
P.V.
MOYO NOMINATED MEMBER (BOCCIM)
FOR THE
APPLICANTS
IN PERSON
FOR THE
RESPONDENT
NO APPEARANCE
PLACE AND DATE OF
PROCEEDINGS
GABORONE
30TH
OCTOBER 2008
International
law – Privileges and immunities – Employer foreign sovereign state –
Whether granted immunity from suit and
legal proceedings instituted
by employees following retrenchment –
Doctrine
of Restrictive immunity – Sovereign not enjoying immunity from
suit and legal process for act of private law character
– Contract
of employment falling into such category
Applicability
of International Labour Standards to Sovereign States
JUDGMENT
[1] The
two applicants in this case, Olga Dube and Rosemary Rabasha, claim
that they were unfairly retrenched on 21st
July 2006 by their former employer the American Embassy, the
recognised diplomatic mission of the United States of America in
Botswana. In the Statement of Case they describe their dispute as
“unfair
retrenchment + package”.
In the particulars, they seek the following relief:
“(1) Full
year bonus.
(2) Clearing
of personal loans.
(3) Pro
rated severance pay based on our length of service.
(4) Notice
to be paid for 6 months for the inconvenience caused to us.
(5) Relocation
contributions of at least P 10,000.00
(6) Separation
pay equal to 2 months salary x number of years worked.”
[2] This
matter was heard as a default matter since the respondent filed no
papers and did not appear on the day of the hearing.
I sat with one
Assessor only, there being no Union Assessor available. From the
evidence of the two applicants, the following brief
facts emerge:
(a) Although
the respondent is cited as the
“American Embassy/BOTUSA”; in
terms of their contracts of employment, the applicants were engaged
as locally employed staff (LES) by the US Department of State
to work
at BOTUSA, one of its agencies at the Centre for Disease Control
(referred to in the agreement as “The Government”).
(b) The
first applicant Olga Dube says she was employed on 12th
March 2000, whilst Rosemary Rabasha testified that she was employed
on 22nd
April 2002.
(c) On
24th
January 2006 the applicants received notices of intention to retrench
them ‘through a Reduction in Force in order to streamline
the
efficiency of BOTUSA offices and avoid duplication with other
services provided at the US Embassy under ICASS’. The letters
advised that “BOTUSA will, with the assistance of the HR
office, enter into consultation with both employees in the
‘competitive
area’ (Voucher and Accounting Technician;
Financial Assistant). You will be contacted by Human Resources to
attend consultation
meetings.”
(d)
On 18th
April 2006, the applicants received termination letters as follows:
“The
consultation process now being complete, you are hereby notified that
under Reduction in Force procedures you are being separated
from
employment with the U.S. Mission effective close of business on July
21,2006.
You
will receive per the final retrenchment package:
One
month’s basic salary
Payment
of unused annual leave
Pro-rated
payment of 13th
month bonus
Outplacement
Assistance
Six
months priority rehiring for new positions within your job series and
for which qualified. …….”
(e) The
applicants left respondent’s employment on 21st
July 2006, and registered their dispute with the Mediator’s
office on 2nd
August 2006.
[3] The
Mediator’s Certificate of Referral to the Industrial court was
accompanied by the following Minute to the Registar:
“The
above trade dispute was referred to the Gaborone District Labour
Office for mediation on the 2nd
August 2006. The mediation hearing was scheduled for the 23rd
August 2006. Before Mr. Samuel Leero, a part-time mediator. The
respondent did not attend the mediation hearing which I chaired
in
place of Mr. Leero who was on leave.
Prior
to this mediation meeting the Ministry of Foreign Affairs and
International Cooperation had inquired into this matter and
expressed
a concern that the Department of Labour seems to be in violation of
the provisions of the Vienna convention on Diplomatic
Relations of
1961. I am aware of the precedent Industrial Court Judgment No. 1377
Case No. IC. 956/2005 between Omadon
Oury Bah and the Libyan Embassy.
It
is my view that there is no prospect of this matter being settled by
mediation given the correspondences between the complainants,
the
concerned Ministry and the department of Labour and Social Security
about the same matter. In light of the foregoing I strongly
believe
that a default award would still not be a viable recourse for the
complainants, hence the issuance of Section 8 (11) certificate
in
terms of the Trade Dispute Act No. 15 of 2004”.
[4] Although
this matter was heard as a default matter, I find it necessary to set
out the law regarding sovereign and diplomatic
immunity in relation
to contracts of employment; and the applicability of the
International Labour Conventions; particularly in
light of the
intervention by the Ministry of Foreign Affairs and International
Cooperation at the mediation level.
Immunity:
Foreign Sovereigns
[5] In
principle at common law, sovereign states and their property were
immune from suit in the courts. This flowed form the public
international law principle of equality of sovereign states –
par in parem non habet
imperium . CF Forsyth
in “Private International Law- The Roman Dutch Law Including
the Jurisdiction of the High Courts” (JUTA
–Fourth
Edition), contends that :
“As
sovereign states in the second half of the twentieth century began
to involve themselves in many commercial activities
pressure grew to
restrict this immunity to the acts of the sovereign that were
properly sovereign (acts iure
imperii) but not to
non-sovereign or commercial activities ( acts iure
gestionis). In the
late 1970s the South African Courts followed the lead of the English
Courts, and began to recognise this distinction and
to deny sovereign
states immunity in commercial cases. States could no longer avoid
their ordinary commercial obligations by relying
ion the doctrine of
sovereign immunity.
But
now the legislature- again following the British lead – enacted
the Foreign States Immunities Act 1981. The scheme of
the Act
extends immunity from the jurisdiction of the South African courts to
all foreign states but subject to a range of exceptions.
The most
important exceptions are (i) where the foreign state has waived its
immunity; (ii) where the foreign state has entered
into a commercial
transaction; (iii) or a contract which is to be performed in whole
or in part in the Republic, or (iv) contracts
of employment to be
performed in whole or in part in the Republic and the employee was a
South African citizen or resident; (v)
proceedings relating to death
or injury or damage to ‘tangible property’ caused through
an act or omission in the
Republic; and (vi) where the state has
agreed in writing to submit a dispute to arbitration.
However,
coercive remedies against the state or its property are not generally
available unless the state has consented thereto
in writing. But
property may be so subject where it is being used for commercial
purposes” – (exclusive
of footnotes and references).
[
6 ] Lord Wilberforce in I
Congreso Del Partido [1981] 2 ALL ER 1064 (HL) expressed the view
that the restrictive theory arises from the willingness of states to
enter into commercial or other private
law transactions with
individuals; and that the rationale for the limitation of sovereign
immunity under the restrictive immunity
doctrine is two-fold, namely
that:
“
(i) It is necessary in the interests of justice to individuals having
commercial or private law transactions to allow them
to bring such
transactions before the courts;
(ii) to
require a state to answer a claim based upon such transactions does
not involve a challenge to or inquiry into any act
of sovereignty or
governmental act of that state. It is, in accepted phrases, neither a
threat to the dignity of that state, nor
interference with its
sovereign functions.”
Immunity:
Diplomatic Representatives/Agents
[7] Apart
from the heads of sovereign states, immunity from local jurisdictions
is accorded to diplomatic representatives sent by
foreign states.
While diplomatic representatives are immune from the legal process of
the local courts, they are not immune from
the local law. The
privilege of immunity vests not in the individual, but in his sending
state. Forsyth contends that:
“The
rule of diplomatic immunity may be traced to one of three theories.
According to Groitus, it was based on a notion of
extraterritoriality; ie the premises of a diplomatic mission
represented an extension of the territory of the sending state.
Closely
related to this was the idea that the mission was a
personification of the foreign sovereign and, on the same ground that
sovereign
immunity might be claimed, so, too, might diplomatic
immunity be claimed. Today, however, it is more widely accepted that
diplomatic
immunity is based on the simple necessity of enabling the
mission to perform its functions properly and efficiently. On this
understanding,
immunity is normally applicable only in respect of
official acts connected with the mission.”
[8]
In the Zimbabwean case of International
Committee Of The Red Cross V Sibanda & Another (2007)
28 ILJ 738 (ZS); the International Committee of the Red Cross (ICRC),
which enjoyed immunity from suit and legal process
in Zimbabwe in
terms of the Privileges and Immunities Act of that country; appealed
to the Supreme Court of Zimbabwe against the
finding of the High
Court that the ICRC did not enjoy immunity from civil proceedings
arising from employment; the respondents
having instituted
proceedings for unlawful retrenchment. The Supreme Court examined the
nature and extent of the immunity accorded
to a foreign sovereign in
terms of international law, on the premise that the legislature would
not have granted an international
organization a greater degree of
immunity than that granted to a foreign sovereign. The court found
that the doctrine of sovereign
immunity applicable in Zimbabwe was
that of restrictive immunity, and applied only to a sovereign when
undertaking sovereign or
public acts. It did not apply where the act
was one of a private law character. The judgment of the High Court
was therefore upheld
in that respect.
The
Position in Botswana
[9] In
the case of Republic
of Angola v Springbok Investments ( Pty) Ltd 2005(2)
BLR 159 (HC), Kirby J , highlighted that “in Botswana only the
Diplomatic Immunities and Privileges Act has been enacted.
There is
no statute as yet covering the sovereign immunity of states”.
[10] It
is settled law in our jurisdiction that:
“the
restrictive doctrine of sovereign immunity has replaced in the modern
law the earlier doctrine of absolute sovereign immunity.
In terms of
the restrictive doctrine no immunity is conferred in respect of
commercial transactions. I have no doubt that that
is also the law of
Botswana. In McCormac’s case (supra) an action arising out of the
breach of a lease of diplomatic mission premises
was held to involve
a commercial transaction, which was not immune. So too, the failed
purchase of a residence for diplomatic purposes
is a commercial
transaction rather than an act of State.
But
it does not follow that where judgment is obtained arising from a
commercial transaction, execution can be levied on any property
at
all of the sovereign foreign state, as long as it is not protected by
the Diplomatic Immunities and Privileges Act. The extent
to which
sovereign property held abroad is protected from execution must be
sought in the rules of international law… …”
– per Kirby J in the case of Republic
of Angola v Springbok Investments ( Pty) Ltd ,
supra.
[11]`The
restrictive doctrine of sovereign immunity was also applied in the
employment context in the matter of Bah
v Libyan Embassy 2006 (1) BLR 22 (IC). In
that case the applicant sought wages in lieu of notice, severance
pay, withheld wages and a certificate of employment from the
respondent. The question arose as to whether the respondent, as an
embassy of a foreign state, was capable of being sued for a
breach of
the provisions of the Employment Act having regard to the provisions
of the Diplomatic Immunities and Privileges Act.
The court held that
an action or legal suit arising out of breach of an employment
contract and or the Employment Act involved
a private law transaction
and was justiciable and there was no reason why the respondent was
immune from a legal suit of this nature,
as the applicant was not
challenging a governmental act, but was merely seeking compliance
with the Employment Act.
[12] The
Diplomatic Immunities and
Privileges Act Cap 39:01 incorporates into our law, some key aspects
of the Vienna Convention on Diplomatic
Relations. Section 2 of the
Act specifies that “the
Articles set out in the First Schedule (being the Articles of the
Vienna Convention on Diplomatic Relations signed in 1961) shall
have
the force of law in Botswana.” In
particular Article 22 provides:
‘Article
22
1. The
premises of the mission shall be inviolable. The agents of the
receiving State may not enter them, except with the consent
of the
head of the mission.
2. The
receiving state is under a special duty to take all appropriate steps
to protect the premises of the mission against any
intrusion or
damage and to prevent any disturbance of the peace of the mission or
impairment of its dignity.
3. The
premises of the mission, their furnishings and other property thereon
and the means of transport of the mission shall
be immune from
search, requisition, attachment or execution.’
[13] A
“diplomatic agent” being “the head of the mission or
a member of the diplomatic staff of the mission;”
Article 31
deals with the immunity of diplomatic agents:
“Article
31
1. A
diplomatic agent shall enjoy immunity from the criminal jurisdiction
of the receiving State. He shall also enjoy immunity
from its civil
and administrative jurisdiction, except in the case of –
(a) a
real action relating to private immovable property situated in the
territory of the receiving State, unless he holds it on
behalf of the
sending State for the purposes of the mission;
(b) an
action relating to succession in which the diplomatic agent is
involved as an executor, administrator, heir or legatee as
a private
person and not on behalf of the sending State;
(c) an
action relating to any professional or commercial activity exercised
by the diplomatic agent in the receiving State outside
his official
functions.
2. A
diplomatic agent is not obliged to give evidence as a witness.
3. No
measures of execution may be taken in respect of a diplomatic agent
except in the cases coming under subparagraphs (a), (b),
(c) of
paragraph 1 of this Article, and provided that the measures concerned
can be taken without infringing the inviolability
of his person or of
his residence.
4. The
immunity of a diplomatic agent from the jurisdiction of the receiving
State does not exempt him from the jurisdiction of
the sending
State.’
[14] Sovereign
immunity enjoyed by a foreign state is therefore distinguishable from
diplomatic immunity enjoyed by the diplomatic agents
of that state.
In my view, the immunity attaching to a sovereign state is not rooted
in our Diplomatic Immunities and Privileges
Act Cap 39:01; and there
is a lacuna in our domestic law in that there is no Sovereign
Immunities Act in this jurisdiction.
[15] Kirby
J in the Republic of
Angola v
Springbok Investments case
supra, at page 161 stated:
“Many
countries have codified both the international law of sovereign
immunity and that of diplomatic immunity in their own acts
of
parliament. Thus South Africa has enacted the Foreign States Immunity
Act (No 87/81) to deal with sovereign immunity, and in
the United
Kingdom the State Immunity Act, 1978, was passed for this purpose. In
Botswana only the Diplomatic Immunities and Privileges
Act has been
enacted. There is no statute as yet covering the sovereign immunity
of foreign states.
The
position in this country is thus similar to that which obtains in
Zimbabwe, where there is also no act and to that which obtained
in
the United Kingdom and South Africa before their acts were
introduced. All three countries have moved away from the formal view
(the doctrine of transformation) that all aspects of international
law require to be introduced by statute, or by specific decisions
of
judges, or by long-standing custom, before they become part of the
law of a country. Instead they have embraced the doctrine
of
incorporation, which holds that the rules of international law, or
the jus gentium, are incorporated automatically into the
law of all
nations and are considered to be part of the law unless they conflict
with statutes or the common law. Under this doctrine
the rules of
international law may be developed by the courts in line with changes
in the world. See Trendtext Trading Corporation
Ltd v Central Bank of
Nigeria [1977] 1 All ER 881 at p 888 (per Lord Denning);
Inter-Science Research and Development Services (Pty) Ltd v Republica
Popular de Mozambique 1980 (2) SA 124 (T) (per Margo J) and Barker C
McCormac (Pvt) Ltd v Government of Kenya 1983 (4) SA 817 (ZS) at p
819 (per Georges JA).
The
doctrine of incorporation was expressed thus by Lord Atkin in Chung
Chi Cheung v R [1938] 4 All ER 786 (PC) at p 790:
‘The
courts acknowledge the existence of a body of rules which nations
accept among themselves. On any judicial issue, they seek
to
ascertain the relevant rule and, having found it they will treat it
as incorporated into the domestic law, so far as it is not
inconsistent with rules enacted by statutes or finally declared by
their tribunals.’
Similarly,
I have no doubt that the rules of international law form part of the
law of Botswana, as a member of the wider family
of nations, save in
so far as they conflict with Botswana legislation or the common law,
and it is the duty of the court to apply
them.”
Immunity:
International Labour Standards
[16] As
there is no Sovereign Immunities Act in our jurisdiction, the courts
look to the rules of international law for guidance.
The Industrial
Court of Botswana being a court of law and equity- (Section 15(1)
Trade Disputes Act)- is robust in its application
of International
Labour Standards (ILS) as formulated in the ILO (International Labour
Organisation) Conventions and Recommendations
and international
labour law. For example, despite Botswana’s non-ratification of
the Termination of Employment Convention
C158 of 1982, this court
applies such Convention in all termination disputes. Recommendation
No R166 on retrenchments too, forms
the bedrock of the guidelines for
a fair retrenchment since our Employment Act does not specify the
requirements and procedure
for retrenchment; other than for notice,
selection criteria and re-employment. On occasion, the court also
turns to the Reports
of the Committee of Experts of the ILO for
guidance. In this particular instance, it is important to examine the
impact of the
international labour standards not only on the domestic
situation, but in their applicability to foreign sovereigns on local
or
extraterritorial soil.
[17] The
court recalls United Kingdom Case No 2437 in the ILO Committee on
Freedom of Association Report No. 344 (Vol XC, 2007,
Series B, No.1).
The complainants alleged that the Embassy of the United Kingdom to
the United States refused to recognise and
negotiate with the trade
union chosen by the locally engaged staff to represent them; on the
contrary, it allegedly unilaterally
implemented changes in the terms
and conditions of employment of locally engaged staff and announced
plans to set up a management-dominated
“Staff Representative
Council”, inviting employees to go through the
Council rather
than their union.
[18] The
United Kingdom Government argued before the
Committee on Freedom of Association (CFA) that the Committee was
applying a
“jurisdictional” approach rather than a “territorial”
approach, and that the obligation of a
State party to an ILO
Convention is to give effect to its provisions in its own territory.
The Government referred to articles
21 and 22 of the Vienna
Convention on Diplomatic Relations and articles 30 and 31 of the
Vienna Convention on Consular Relations
in support of the argument
that the premises of a diplomatic or consular mission do not form
part of the territory of the sending
State. It also argued that, in
contrast to other human rights instruments, the ILO Constitution and
Conventions do not contain
a jurisdictional clause extending
protection to those “within the jurisdiction of” a
contracting party which would
extend Convention rights to acts
occurring outside the territory of the State concerned, including to
the acts of diplomatic and
consular agents outside the territory of
the State. Thus, it argued the Government was not under any
obligation to give effect
to ILO Conventions in diplomatic or
consular missions with regard to locally engaged staff as the
appropriate criterion in this
respect was territorial and not
jurisdictional; and that ILO Conventions applied within the territory
of a State but did not extend
to acts occurring outside, including to
the acts of diplomatic and consular agents outside the territory of
the State.
[19] In
its observations at Paragraph 1311 the Committee said :
“ The
Committee notes that by referring to the articles of the Vienna
Conventions on Diplomatic and Consular Relations, the Government
raises an important issue which is that of the sovereign immunity of
the officers of the embassy, consulate and other offices of
a State,
in carrying out their functions. The Committee is of the view that
the fact that the officers of the embassy, consulate,
etc., are
covered by immunity in the exercise of their functions, including the
exercise of functions as employer of locally engaged
staff, indicates
two things: first, that it is the government of the sending State
that exercises sovereign authority over the
embassy, consulate, etc.,
including its staff; in particular, even if local law is applicable
to locally engaged staff, it cannot
be enforced against the embassy
or consulate authorities, as employers, due to their immunity (thus,
it is questionable whether
the locally engaged personnel might indeed
have recourse to the NLRB against the embassy); and second, that the
government of the
sending State is in the best position, as employer
of the locally engaged staff, to take the necessary measures to
ensure that
fundamental principles relative to freedom of association
and collective bargaining are observed with regard to such staff. As
a result of the above, the Committee has difficulty accepting the
Government’s argument that it has no obligation to give
effect
to fundamental principles on freedom of association and collective
bargaining in embassies, consulates and other offices,
given that it
is the Government that exercises sovereign authority over the offices
in question and it is the Government, in its
quality as employer,
that is in a position to ensure the effective implementation of the
principles in the offices in question.
1312.
The Committee wishes to emphasize in this respect that, when a State
decides to become a Member of the Organization, it accepts
the
fundamental principles embodied in the Constitution and the
Declaration of Philadelphia, including the principles of freedom
of
association [Digest of Decisions And Principles of the Freedom of
Association Committee, fifth edition, 2006, para. 15]; all
ILO member States are therefore expected to give effect to these
principles as expressed and developed in the fundamental Conventions
on freedom of association and collective bargaining and this duty
extends, in the Committee’s view, to the embassies, consulates
and other offices, as an integral part of the public administration.
…………………..
Thus, even
if the Committee were to accept the Government’s argument that
ILO Conventions were not applicable to embassies
because they do not
form part of its territory, the Committee considers that this
argument does not apply to the fundamental principles
of freedom of
association, respect for which it has been mandated to
promote……………………”
( my underscoring).
[20] In
the above matter, the Committee recalled the conclusions reached in a
similar case concerning the locally recruited staff
of the Embassy of
South Africa in Ireland [Case No. 2197, 334th Report, approved by the
Governing Body at its 290th Session (May–June
2004), paras
95-131]. There the Government of the sending State (South Africa) had
argued that the relationship between an embassy
as employer and its
locally recruited personnel is governed by the law of the country in
which the embassy is situated. The Government
of the receiving State
(Ireland) had informed the CFA that the question of whether local
staff was subject to the law of the receiving
State or, on the
contrary, was vested with immunity, had not been settled (in Ireland)
and depended on the specific functions performed
by such staff. In
that context, the Committee had considered that, “while the
question of whether the law of the receiving
State applies to the
locally recruited personnel in a given embassy is dependent on a
variety of circumstances that can only be
determined on a
case-by-case basis, the
application of the fundamental international principles of freedom of
association embodied in the ILO Constitution and the Declaration
of
Philadelphia are applicable to all member States…….In
view of this principle which binds ILO member States, it would be
anomalous to abandon the locally recruited
personnel, in this case,
at the international level, merely because of an ambiguous situation
relevant to the application of national
law. Thus, while the national
laws applicable to the locally recruited personnel have yet to be
determined, the Committee, in the
interests of justice, may look to
the authority relevant to the employer, the Embassy, which in this
case is clearly the Government,
in light of the uncontested
sovereignty it maintains over its government officials and employees
representing it around the world”
[op. cit., paras 106–107].
The Committee therefore concluded that “if there has been a
violation of international labour
standards or principles relative to
freedom of association and collective bargaining in this case, it is
the South African Government
[the sending State] that is most
assuredly in a position to take the necessary measures to address
such a violation” [op.
cit., para. 108].
[21] In
view of the judicial pronouncements and the international labour
standards that this court applies under its equity jurisdiction,
it
is clear that the doctrine of sovereign immunity applicable in
Botswana is that of restrictive immunity as opposed to absolute
immunity. In other words, a foreign sovereign enjoys immunity from
suit and legal process where the relevant act which forms the
basis
of the claim is an act ‘jure imperii’, ie a sovereign or public act.
On the other hand, the sovereign will not enjoy such
immunity if the
act which forms the basis of the claim is an act ‘jure gestionis’, ie
an act of a private law character such as
a private citizen might
have entered into; particularly where fundamental rights are
concerned.
[22] It
is also clear that when a State decides to become a Member of the
ILO, which the respondent is, it accepts the fundamental
principles
embodied in the Constitution of the ILO and the Declaration of
Philadelphia; and that a State has an obligation to give
effect to
the fundamental principles of international labour standards in its
embassies, consulates and other offices. An employment
contract being
a matter of private law, the court finds that this matter is
justiciable under the restrictive immunity doctrine.
The
Merits of the Case
[23]
I turn now to the merits of this case. I must say from the outset
that in the main, the court found the claims of the applicants
to be
unsustainable in law and largely opportunistic. For ease of
reference, I shall deal with each claim separately.
Full
year bonus.
[24] The
applicants claimed they received an annual Christmas bonus at the end
of each year. On termination of their contracts of
employment on 21st
July 2006, they received a pro rated bonus. They contend they should
have received the usual annual Christmas bonus in full.
[
25] A bonus is not a right and is payable at the employer’s
discretion; unless it is a term of the contract of employment;
which
in this case it clearly was not- See the case of Marcano
Felix v Shangor Insurance Brokers
Industrial Court case No IC 555/05 dated 26 September 2007 (J1716).
In that case De Villiers J, held that a bonus payable at the
employer’s discretion is not a dispute of right but a dispute
of interest; and that in terms of Section 18(1) (a) of the Trade
Disputes Act, this court clearly has no jurisdiction to hear disputes
of interest. The court finds that the applicants are extremely
fortunate that they received any bonus at all as they had not even
completed a year’s service at the material time, and the
respondent was not contractually bound to pay them anything. In
any
event this court has no jurisdiction to hear this claim as it is a
dispute of interest.
Clearing
of personal loans
[26] The
applicants testified that following their engagement by the Embassy,
they committed to bank loans and hire purchase loans
for furniture
and the like. They claim that the decision to retrench left them in
dire financial straits as they had no means of
paying off their
loans, and that the employer should have assisted in the repayment of
their loans.
[27] Aside
from the fact that this claim is vague in the extreme in that it was
not even quantified; this claim has no basis or
validity in law. The
court finds this claim to be spurious, vexatious and without merit.
Accordingly, it is also dismissed.
Pro-rated
severance pay based on length of service
[28] Both
Dube and Rabasha claim that they should have been paid pro rated
severance benefit for their many years of service with
the
respondent.
[29] Severance
benefit rewards an employee for long service, the minimum qualifying
period being 60 months or five years of continuous
employment. As
the requirements for payment of severance benefit have been set out
in so many decisions of this court, I need
not set them out in any
detail herein. Suffice to say that, in terms of Section 27 of the
Employment Act; severance benefit is
payable at the conclusion of
each period of 60 months of continuous service by the employee, or
at the termination of her employment,
at the option of the employee.
There is no statutory entitlement to severance benefit on a pro rated
basis if an employee has not
completed the qualifying period of 60
months; it is paid on a pro rated basis only after the first 60
months have been completed.
– see the case of A
Mokoboto v Tswana Bus Builders
Case No IC 489/06 dated 20th
June 2008 (J1819).
[30] The
evidence regarding the employment history of both applicants in this
case is wholly unsatisfactory. The contracts of employment
produced
by the applicants do not indicate long service. Dube’s contract
signed on 6th
October 2005 clearly stipulates that “the completion date of
this agreement is June 2, 2006”. Rabasha’s contract
which
is signed on 8th September 2005 clearly indicates that “the
completion date of this agreement is July 24, 2006.”
[31] The
applicants allege that they were employed on several one year
contracts, from time to time. It is trite law that an employer
may
not place employees on yearly contracts simply to circumvent the
provisions of the law – see Mamphane
& Others v Bolux Milling (Pty) Ltd,
unreported Case No IC 147/99 dated 20th
October 2000 ( J471)
at page 17 of the
cyclostyled judgment where I said :
“ Article
3 of the Termination of Employment Convention ( No 158/82) states
that :
‘Adequate
safeguards shall be provided against recourse to contracts of
employment for a specified period of time the aim of which
is to
avoid the protection resulting from this Convention.’
Paragraph
3 of Recommendation No 166 (Recommendation concerning Termination of
Employment at the Initiative of the Employer); sets
out examples
whereby provision may be made against recourse to such contracts of
employment the aim of which is to avoid the protection
resulting from
Convention No 158 of 1982.
Although
we do not have such provisions entrenched in statute, and the use of
fixed term contracts is not absolutely proscribed
in our
jurisdiction, the Industrial Court has sounded a warning regarding
the obvious possibilities for evasion of the labour laws
by the
repeated renewal of fixed term contracts- see for example the case of
Samuel Bolokwe v Botswana Building Society Case No
59/98 dated 30th
November 1988. ”
[32] The
applicants however failed to produce the alleged one year contracts.
Moreover, Dube testified that she initially commenced
employment at
the Embassy where she was on pension and that on her subsequent
transfer to BOTUSA, she was reimbursed her pension
contributions and
the interest earned thereon. Section 27(1)(ii) of the Employment Act
makes it quite clear that severance benefit
is not payable where an
employee is at the date of payment of the severance benefit or at a
future date, entitled to the payment
of a gratuity or pension, or
both a gratuity and pension. Therefore any period of employment
during which the applicants were entitled
to pension cannot be taken
into account in the computation of ‘continuous employment’
for purposes of severance benefit.
[33] Even
if the court were to give the applicants the benefit of the doubt and
accept the dates of engagement specified in the
Statement of Case;
neither applicant completed 60 months of continuous employment in
terms of section 27. The applicants therefore
have no entitlement to
severance benefit and these claims are also dismissed.
Notice
for six months for the inconvenience caused
[34] There
is no contractual provision for the payment of 6 months notice in
this case; nor is there any statutory provision in
our law for
payment for such notice. Dube testified that this claim was for the
inconvenience caused by the early termination of
their contracts of
employment when the respondent unfairly retrenched them. I therefore
take this to be a claim for damages or
compensation.
Damages
[35] Numerous
judgments of this court have emphasised that the Industrial Court has
no jurisdiction for claims sounding in damages.
In a recent judgment
in the matter of Tanki
Mohlachua s. Hyper Home Centre
Case No. IC. 1153/2007 dated 21st
November 2008 (J1861).
I
said:
“Indeed,
this court has no jurisdiction over and does not entertain actions
for damages. – See the case of Fly
Lesole vs. Mak Construction
Case No. IC. 148/98 dated 3rd
June 1999 (J301). “This court is a creature of statute and
none of the empowering sections in the Trade Disputes Act empowers
this court to determine claims for damages. Such claims must be
instituted in a civil court like the High Court or the Magistrate’s
Court” per de Villiers, J in the matter of Makaya
vs. Payless Supermarket
Case No. IC. 737/05 dated 26th
January 2007 (J1593).”
Compensation
[36] In
any case where the Court determines that an employee has been
wrongfully dismissed or disciplined, the Court may order compensation
– see Section 24 of the Trade Disputes Act. Where the court
finds the retrenchment of an employee to be substantively or
procedurally unfair therefore, the employee may be entitled to an
award of compensation.
[37]
The law regarding retrenchments is well settled in our jurisprudence
and need not be repeated in any detail herein; suffice
to say that a
retrenchment must be lawful (in accordance with the provisions of the
Employment Act regarding notice, selection
and reemployment);
substantively fair in that there must be a commercial rationale; and
procedurally fair in line with the equitable
guidelines for a fair
retrenchment. – See the case of J
Galebolae & Others v The Vigilantes (Pty) Ltd
Case No IC 110/95 dated 29 November 1996.
[38] In
their particulars, the applicants are only challenging procedural
unfairness on the vague premise that “we
feel that the procedures used for this retrenchment were not correct
because we were never counselled or informed before
we were given the
letters which came as a big shock and surprise to us………………….We
did not get a free negotiation atmosphere”.
[39] The
above statement is clearly factually incorrect. The oral and
documentary evidence in this case illustrates that the applicants
were notified of the impending retrenchments in January 2006 at least
three months prior to receiving the retrenchment letters;
given a
further three months notice of the termination of their contracts in
April 2006; and that there were several consultative
meetings held on
a weekly basis from 21st
February 2006, there being no legal requirement for the employer to
negotiate but merely to consult- see the case of Chinu
& Others v Pelican Moving Co (Pty) Ltd and Another
[2005] 1 B.L.R. 159 at 165C:
“The
employees should be given a fair chance to participate meaningfully
in such discussions and be invited to propose reasonable
alternatives
to retrenchment, eg reduction in wages, short time etc. In such
consultation it is the duty of the employer to “consult”
and not necessarily to “negotiate.” If after fair and
adequate consultations the parties still cannot reach agreement
and
they remain intransigent in their attitudes, then the employer is
free to make the ultimate decision as long as he acts fairly.”
[40] On
the evidence before us, the court finds that the respondent acted
fairly and lawfully. The retrenchment of the applicants
was therefore
both substantively and procedurally fair; they therefore have no
claim for compensation.
Relocation
contributions of at least P10,000.00
[41] The
law regarding repatriation is set out in Sections 32 to 34 of the
Employment Act. The relevant portions of Section 32 state
that:
“32
(1) Every employee who
has been brought to the place of employment
by the employer or by any person acting on behalf of the employer
shall have the right to be repatriated at the expense of the
employer
to his place of recruitment in the following cases—
(a) at
the expiry of the period of time for which the contract of employment
was made;
(b) on
the termination of the contract of employment by reason of the
inability of the employer to fulfil the contract;…………….
”
[42]
There is no evidence that either of the applicants was recruited
from home or brought to the place of employment by the employer-
see
the case of D.
Horton v Windorf
Case No. IC 184/00 ( J666) dated 13 March 2002. Besides, Dube
testified that this claim was merely a rough estimate of their
re-location
expenses (a mere thumb suck), and neither she nor Rabasha
relocated to their home villages after their retrenchments. The court
finds the claims for repatriation disingenuous and these also stand
to be dismissed.
Separation
pay
[43] The
applicants claim “separation pay equal to two months salary x
number of years worked.” Dube said this claim
is based on the
strength of severance or retrenchment packages contained in the
recognition agreements of private companies, parastatals
and other
organisations in Botswana. This is of course a preposterous basis for
any claim.
[44] Aside
from the unsatisfactory evidence of the number of years of service,
there is no provision for entitlement to a retrenchment
package in
our law. In the matter of Boitumelo
Moseje & Another vs. United National Breweries (Botswana )(Pty)
Ltd Case No. IC.
345/2008 dated 17th
June 2008 (J1817)
I
said:
“Unlike
other jurisdictions, there is no provision or formula in our law for
a retrenchment “package.” – See the case
of Asher
Moyo vs. Mega Brick
Case No. IC. 83/05 dated 14th
March 2006 (J1426). Therefore in the absence of any provision in the
recognition agreement or conditions of service, an employee’s
recourse is to either negotiate a package, or to approach the court
for a compensation award for unfair retrenchment. If the retrenchment
is found to be fair; no compensation would be payable and even a long
serving employee would be left cap in hand without a “package”.
[45] The
claim for separation pay has no statutory basis in our law. Neither
does it have any contractual basis on the facts of
this case. This
claim too is dismissed.
Conclusion
[46] In
the final analysis, the applicants in this case have no sustainable
claim against the Respondent. Indeed the court has found
some of the
claims to be frivolous and vexatious in the extreme. Section 29 of
the Trade Disputes Act states that:
“ 29
(1) No costs shall be awarded by the Court except against a party
held by the Court to have acted frivolously or vexatiously,
or with
deliberate delay in the bringing or defending of a proceeding.”
[47] The
applicants in this case did not appear to be uneducated or naïve,
yet their claims were opportunistic and unsustainable
in law. They
are fortunate that there is no prayer for costs as I would have given
serious consideration to awarding costs against
them, even if only on
a nominal scale.
Determination
In
all the circumstances of this case, the court makes the following
determination:
-
The
applicants’ claims for bonus, clearing of loans, severance
benefit, notice pay, repatriation and separation package
are all
dismissed.
2 No
order is made as to costs.
Dated
at Gaborone this 30th
day of January 2009
………..……………………………
M.EBRAHIM-CARSTENS
INDUSTRIAL
COURT JUDGE
I
agree on the facts;
…………………………………..
PV
MOYO
NOMINATED
MEMBER (BOCCIM)