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THE INDUSTRIAL COURT OF BOTSWANA

HELD AT GABORONE

 

CASE NO. IC 707/04

IN THE DISPUTE BETWEEN

 

ISAAC IKALAFENG
………………………. APPLICANT

AND

 

TARGET MEAT INDUSTRIES ………………………. RESPONDENT

——————————————————————————————–

CONSTITUTION OF THE COURT

D. J. de VILLIERS
INDUSTRIAL COURT JUDGE

S. C. L. DINGALO NOMINATED
MEMBER (UNION)

B. O. TSHEKO NOMINATED MEMBER (BOCCIM)

FOR
THE APPLICANT:

IN
PERSON

FOR
THE RESPONDENT

MR M. P. M. MBAAKANYI MANAGING DIRECTOR OF RESPONDENT
COMPANY

PLACE
AND DATE OF PROCEEDINGS

GABORONE 24
AUGUST 2005

JUDGMENT

Probationary
period – to be a valid probationary period it must comply with all
the

imperative
provisions of subsections 20 (1), (2) and (3).

Notice
of termination – when employee is literate, notice to terminate
contract shall be in writing.

Unauthorised
deductions.

Applicant’s
evidence

[1] The applicant
testified that he started working for the respondent as a sales
representative on 2 August 2004. The respondent’s
head office is
in Lobatse, but the applicant was stationed in Gaborone. The
respondent’s business is to process and sell meat
products as well
as selling fresh meat. The applicant had to service existing
customers and enlist new customers. The area that
he was responsible
for was Gaborone, Mochudi and Molepolole.

[2] The applicant
was employed in terms of a written agreement of employment dated 28
July 2004. There is some dispute as to when
the applicant received
this letter of appointment, which sets out the terms and conditions
of his employment. The court will revert
to this dispute and to
certain clauses of this agreement here below.

[3] In terms of
this agreement it was expected of the applicant to “achieve
a sales turnover of above P60,000.00 a month for normal sales.” The
applicant said that during September 2004 one of the managers spoke
to him and said that management was not satisfied with his
performance as he was performing well below the aforesaid sales
target. At the beginning of October 2004 management again told him
that they were not satisfied with his performance and that he should
work harder to get more new customers. The applicant said he
could
not reach the target because he was still trying to get used to
selling this commodity, namely meat, as he had never sold meat
before.

[4] The applicant
testified that he was told to come to a meeting at Lobatse every
Tuesday morning. On 19 October 2004 after the
said Tuesday meeting
the managing director called him to his office, where they then
discussed his work and his work performance.
That is when the
managing director also told him that he was not happy with the
applicant’s work performance as he is not doing
enough for the
company. He said the managing director said he would put everything
in writing and give it to the applicant later,
without mentioning
anything about dismissal.

[5] He said after
this meeting with the managing director he returned to Gaborone after
checking for post in the front office. There
was no post for him.
The following Tuesday, 26 October 2004 he again went to Lobatse for
the weekly Tuesday morning meeting. At
the front office he found his
letter of termination, dated 19 October 2004, the first two
paragraphs of which read as follows:

“To

Mr Isaac O. Ikalafeng

P. O. Box 501153

Gaborone

Dear Sir or Madam

RE: TERMINATION OF
YOUR SERVICES

Your employment with Target
Meat Industries is hereby terminated with immediate effect, and you
shall serve notice as discussed up
to the end of this month.

As discussed you have not
complied with items 1 to 7 of your employment letter and the targets
set for you in the first page of employment
letter have not been
achieved by yourself.”

[6] The applicant
stated that his last working day was Saturday, 30 October 2004. He
said according to his last salary advice slip,
it shows his gross
earnings for October was P5850.00, being his basic salary of P4000, a
car allowance of P1500 and P350 for cellphone
airtime. From this
amount was deducted PAYE of P113.55 and P1495.70 which was the amount
one of the applicant’s customers owed
the respondent. After
collecting this amount, the respondent only paid him P1339.95. He is
now claiming the balance of P155.75.
Then he also wants notice pay
for the balance of his notice month as well as accrued leave pay.

Evidence for
respondent

[7] The said
managing director is the only witness who testified on behalf of the
respondent. He agreed with most of the applicant’s
evidence. He
said that as the applicant was still on probation he needed to give
him only 14 days notice, but he in fact gave him
3 weeks notice, as
he gave him verbal notice on 9 October 2004 that his services would
be terminated on 30 October 2004. He said
he therefore owes the
applicant no notice pay in lieu of notice. The applicant denies such
verbal notice. The court will deal with
further aspects of his and
the applicant’s evidence here below, after first setting out the
requirements for a valid probationary
period.

Probationary
period

[8] From the
pleadings and from the evidence of the managing director, it is
obvious that the managing director has no idea as to
what legal
requirements for a valid probationary period are. These requirements
were set out in detail in this court’s judgment
in the case of J.
Gaopotlake v. Dulux Botswana (Pty) Ltd., case no. IC.
197/99 (J.433), dated 20 June 2000. For the sake of the respondent
the court will now repeat these requirements.

[9] Probationary
periods are dealt with in section 20 of the Employment Act, the
relevant portions of which, for purposes of this
judgment, provide as
follows:

“20.(1) In the case of a
contract of employment for an unspecified period of time (other than
a contract of employment for a specified
piece of work without
reference to time) such a period not exceeding three months in the
case of unskilled employees and twelve months
in the case of skilled
employees, as the contract may specify immediately after
the commencement of employment under the contract may be a
probationary period (hereinafter referred to as a probationary
period) if the contract so provides.

(2) Where a contract of
employment is terminated during a probationary period by either the
employer or employee under Section 18
or 19 not less than 14 days
notice the contract shall be deemed, for the purposes of this part,
to have been terminated with just
cause and neither the employer nor
the employee shall be required to give any reasons therefore.

(3) Before
entering into a contract of employment which is to provide
for a probationary period the prospective employer shall
inform the prospective employee in writing of the length of the
probationary period.

(4) ——————————-”
(The Court’s underlining).

[10] In the said
Dulux Botswana –
case, supra, the court
interpreted and analysed the provisions of the said section 20, which
could be summed up, as set out here below.

[11] Section 20
(3) does not specify in what form the written notification of the
probationary period must be. What is however very
clear, is that a
probationary period to be valid, an employer shall inform the
prospective employee in writing
what the length of the probationary period is going to be before,
and not after, the contract of employment is entered into. (The
court’s underlining)

[12] Section 20
(1) also requires that the length of the
probationary period be contained in the
contract of employment. The court therefore finds that such written
notification can be contained in a separate
letter offering
employment or in the contract of employment or employment card,
before it is signed. (The court’s underlining)

[13] The aforesaid
are the salient requirements for a probationary period to be valid.
Non-compliance with any of the said requirements,
set out in
subsections 20 (1), (2) and (3), will render the probationary period
null and void and therefore not enforceable because
of the use of the
underlined imperative word “shall.” This
employer cannot rely on the provisions of the said subsections. In
such cases the contract of employment will be regarded as
a contract
without probationary period.

[14] In the
applicant’s aforesaid written offer of employment, the probationary
period clause provides as follows:

“You
will serve a probationary period of 3 to 6 months extendable
dependant upon your self-application on the job. Notice period
within
the probationary period is 14 days and remunerated as such.”

[15] Reverting now
to the evidence of the parties, the applicant testified that although
his letter of offer of employment is dated
28 July 2004, he only
received it one or two weeks after commencing employment on 2 August
2004. The managing director was adamant
that, although he did not
ask the applicant to sign the said letter of offer of employment, he
gave the said letter to the applicant
on 28 July 2004.

[16] The court
finds the evidence of the managing director more probable than that
of the applicant and finds that the applicant was
notified in writing
of this probationary period before the contract of employment was
entered into.

[17] Section 20
(3) also requires that the prospective employer “shall
inform the prospective employee in writing of the
length of the probationary period.”
This is also an imperative provision because of the use of the said
imperative word “shall”.
The court finds that this means that an exact period of probation
must be mentioned. The applicant at that stage was an unskilled
employee and in terms of the said section 20 (1) the probationary
period for an unskilled employee shall not exceed 3 months. As
stated above the applicant was informed in writing that, “You
will serve a probationary period of 3 to 6 months.”

[18] The court
finds that the said probationary clause is defective in two respects.
“3 to 6 months”
is not an exact period and secondly, it also exceeds the mandatory
maximum period of 3 months, as set out above. In the circumstances
the provisions of the said section 20 (1) have not been complied
with. The court consequently finds that the said probationary clause
is null and void and the contract of employment is therefore a
contract without any probationary period.

[19] Even if it
had been a valid probationary period, the managing director also
faulted by thinking that the notice period during
probation is only
14 days.

[20] In the case
of O Mosedame
v. Institute of Development Management, case
no. IC. 22/96 (J.96), dated 7 January 1997, this court analysed
section 20 (2) of the Employment Act and made the following findings.
When an employee is paid fortnightly or a lesser period, an employer
who intends terminating such employee’s contract of employment
during a probationary period, must give him at least 14 days notice.
If an employee is paid monthly during a probationary period,
he must
be given at least one month’s notice. The aforesaid findings were
confirmed by the Court of Appeal in the case of O.
Mosedame v. Institute of Development Management, Civil
Appeal No. 29/97, dated 30 January 1998.

[21] As the
applicant was not dismissed for any misconduct but for poor work
performance, he could not have been summarily dismissed,
i.e. without
notice. The court finds that the respondent did have a valid reason
to dismiss him on one month’s notice for poor
work performance, as
he was paid monthly.

Notice pay

[22] One of the
applicant’s claims is that he was given very short notice and he
now wants notice pay in lieu of the balance of
his notice. Before
dealing with this claim the court will first set out the requirements
for a valid notice period.

[23] Section 18
(5) of the Employment Act deals with such requirements and provides
as follows.

“(5)
Notwithstanding anything to the contrary contained in a contract of
employment, notice of intention to terminate the contract
shall
be in writing and shall be given on a working
day at any time and, except where the wages are payable in respect of
any period not exceeding a
week, that day shall be included
in the period of notice:

Provided
that, notwithstanding anything to the contrary contained in the
contract of employment, notice of intention to terminate
the contract
may be given oraly by either party if
he is illiterate”. (The court’s underlining)

[24] The
applicant’s undisputed evidence was that he had passed his O-levels
at school. He is therefore not illiterate and in terms
of the said
section 18 (5) he should therefore have been given one month’s
notice in writing as to the termination of his contract
of
employment. Even if the court accepts the evidence of the managing
director that he gave the applicant verbal notice on 19 October
2004
that his contract would be terminated on 30 October 2004, such verbal
notice would have been invalid and of no force and effect,
as it
should have been in writing.

[25] The managing
director testified that the applicant’s termination letter was
typed on 19 October 2004, on which day he also
signed it and the
procedure was that the said letter should have been left in the front
office that same day, where all sales representatives
collect their
post. He was unable to say whether it was in fact done. The court
therefore accepts the applicant’s evidence that
when he left
Lobatse on 19 October 2004 there was no letter for him in the front
office. He only received the letter of termination
the following
Tuesday, 26 October 2004 when he went to Lobatse for the weekly
meeting.

[26] As the
applicant only became aware of this notice period on 26 October 2004,
his one month’s notice period started running
from 26 October 2004,
as “that day shall
be included in the period of notice.” The
applicant only worked 5 days of his notice month as he worked till 30
October 2004. He is therefore entitled to notice pay in
lieu of the
balance of his notice period.

[27] It was common
cause that the applicant worked 5½ days per week. In terms of
section 95 (8) of the Employment Act, a 5½ days
week converts to a
24 day working month. To calculate an employee’s daily rate of
payment his monthly rate of payment must therefore
be divided by 24 .
In terms of section 19 (a) of the Employment Act, an employer may
terminate a contract of employment by paying
an employee, instead of
giving him notice, his basic pay
as notice pay for the notice period. (The court’s underlining) It
was common cause that the applicant’s monthly basic pay was
P4000.00. His daily rate of payment was therefore P166.67 (P4000.00
÷ 24).

[28] As the
applicant had worked 5 days of his notice month, he is now entitled
to notice pay in lieu of notice for 19 (24 – 5)
days, being the
balance of his notice month. He is therefore entitled to notice pay
in the amount of P3166.73 (P166.67 x 19).

Unauthorised
deductions

[29] The applicant
testified that his final salary for October 2004 should have been
P5736.45 after the lawful PAYE deduction of P113.55.
He however only
received P4240.75 as the respondent deducted a further P1495.70,
being the amount the applicant had not yet collected
from a customer.
After the applicant had collected and paid in the said amount, the
respondent only paid him P1339.95, which was
P155.75 short. The
managing director conceded that he did deduct the said P155.75 from
the applicant’s salary because on the applicant’s
last day of
work he filled up his private car with petrol from the company bowser
in the amount of P155.75. He said this was wrongful
in terms of
their said written agreement, which provides, “you
will be allowed two full petrol tanks a month to assist you in your
sales drive.” The managing director said
that as the applicant was not going to work anymore after that date,
30 October 2004, he was no longer
entitled to a full tank of petrol.
The court agrees with this submission.

[30] Section 79
(1) of the Employment Act states that only authorised deduction shall
be made from an employee’s wages. Section
80 (1) sets out what
authorised deductions are and deducting monies owing by a customer to
the employer from the employee’s salary
and unauthorised filling of
an employee’s private car from the employer’s bowser, are
definitely not authorised deductions.
Section 79 (1) further states
that if a deduction is not authorised, no such deductions shall be
made from an employee’s wages,
not even with
his consent. Section 79 (2) provides that
where an employer makes such unauthorised deductions, he shall be
guilty of a criminal offence and
upon conviction, may be sentenced to
a fine not exceeding P2000 or to imprisonment not exceeding 18 months
or to both such fine and
imprisonment.

[31] The managing
director therefore had no right to deduct the said amount of P1495.70
from the applicant’s salary for money owed
by a customer. When the
managing director repaid this amount to the applicant, he had no
right to deduct P155.75 from this amount
for the applicant’s
unauthorised filling of the tank of his private car with company
petrol. The only way the respondent could
have claimed this money
would have been to issue summons against the applicant in a civil
court, e.g. the magistrates’ court.

Accrued leave
pay

[32] In terms of
the applicant’s aforesaid agreement he was entitled to 20 days paid
leave per year. He said that he never took
any leave during this
short period he worked for the respondent, for which he now wants
accrued leave pay. The managing director
does not dispute this and
he calculated the applicant’s accrued leave pay to be P833.33. He
said he has not paid this amount to
the applicant because he set it
off against the amount the applicant owes the company for the very
unauthorised filling of car’s
tank with company petrol. The court
finds that the managing director is thoroughly confused because in
another document he handed
in, he wrote, “on
last day of work, he filled up his petrol tank for this amount,”
which is indicated as P155.75. A set off is tanta-mount to a
deduction from an employee’s wages or salary and the court has
already
held that such a deduction would in any case have been an
unauthorised deduction.

[33] The court
therefore finds that the respondent still owes the applicant the full
amount of his accrued leave pay. In terms of
section 98 (2) of the
Employment Act, the applicant’s agreed leave is earned at the end
of each month worked and not only after
having worked 12 months. The
applicant therefore earned 1.67 (20 ÷ 12) leave days per month.

[34] In terms of
section 98 (6) (a) of the Employment Act, where a contract of
employment is terminated by either party, the employer
shall
pay to his employee, his basic pay
in respect of all accumulated leave. In terms of section 98 (6) (b),
when calculating accrued leave, a part of a month will be reckoned
as
a full month. It was common cause that the applicant worked for the
respondent from 2 August 2004 to 30 October 2004, without
taking any
leave, which is for a period of 3 months. His accrued leave, in
terms of section 98 (6) (b) must therefore be calculated
over a
period of 3 months, which amounts to 5.01 leave days (3 x 1.67).
(The court’s underlining). The court has already calculated
the
applicant’s daily basic pay as being P166.67. He is therefore
entitled to accrued leave pay in the amount of P835.02 (5.01
x
P166.67).

[35] In terms of
section 98 (9) of the Employment Act an employer who fails to pay
such accrued leave in terms of section 98 (6) (a),
shall be guilty of
a criminal offence and upon conviction may be sentenced to a fine not
exceeding P1000 or to imprisonment for a
period not exceeding 6
months or to both such fine and imprisonment. The respondent
therefore had no right to withhold the applicant’s
aforesaid
accrued leave pay.

Determination

[36] The court
consequently makes the following determination:

1. In
terms of section 25 (1) of the Trade Disputes Act, read with
sections 18 (2) and 19 (a) of the Employment Act, the respondent
is
hereby directed to pay to the applicant Isaac Ikalafeng, the amount
of P3166.73, being notice pay in lieu of notice.

2. In
terms of section 25 (1) of the Trade Disputes Act, read with section
79 (1) and 80 (1) of the Employment Act, the respondent
is hereby
directed to pay to the applicant the amount of P155.75, being for
unauthorised and unlawful deduction from the applicant’s
salary.

3. In
terms of section 25 (1) of the Trade Disputes Act, read with section
98 (6) (a) of the Employment Act, the respondent is hereby
further
directed to pay the amount of P835.02, being accrued leave pay
unlawfully withheld.

4. The
respondent is hereby further directed to pay the said amounts,
referred to in subparagraphs [36] 1, 2 and 3 hereof, totalling
P4157.50, to the applicant, through the office of the registrar of
this court, on or before Friday, 2 December 2005.

5. No
order is made as to costs.

Dated at
Gaborone on this day of October 2005.

_________________________

D. J. de Villiers

INDUSTRIAL COURT JUDGE

We agree
on the facts:

____________________________

S. C. L. Dingalo

NOMINATED MEMBER (UNION)

____________________________

B.
O. Tsheko

NOMINATED
MEMBER (BOCCIM)

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