---

R

IN THE INDUSTRIAL COURT OF BOTSWANA

HELD AT GABORONE

CASE NO. IC. 500/2004

IN THE DISPUTE BETWEEN

ROOSEVELT KGOSI
………………………. APPLICANT

AND

CHINA CIVIL ENGINEERING ……………………….
RESPONDENT

CONSTITUTION OF THE COURT

M. EBRAHIM-CARSTENS INDUSTRIAL COURT JUDGE

M.B.S. LESELWA NOMINATED MEMBER
(BOCCIM)

R. TSHEPHE NOMINATED MEMBER
(UNION)

FOR THE APPLICANT

T.C. KETSHABILE
KETSHABILE

MANKGE-MASUGE AND CO.

FOR THE RESPONDENT

C.E. SMITH
CONSULTANT

PLACE AND DATE OF PROCEEDINGS

GABORONE
5^TH
APRIL 2005

-Requirements for valid probationary period–

– Section 24 (g) of Trade Disputes Act as a factor
for assessment of compensation –‘Employer’s ability to pay’
is whether
employer in a position to pay – Does not mean employer
is a cash cow and that the wealthier the employer, the higher the
compensation

– Preparedness of attorneys –– Purpose of
pleadings – Attorneys must be prepared to address court when invited
to do so.

JUDGMENT

[1] The applicant referred his
claim for three months compensation for alleged unfair dismissal by
letter of referral dated 19^th
October 2004 against the respondent “China
Civil Engineering (Lobatse Mental Hospital Project).”

[2] In his hand written
statement of case of even date he avers that he “commenced
work for the Lobatse Project”
as Human Resources person on 20^th
September 2004, only to be dismissed on 29^th
September 2004.

[3] The
applicant’s hand written particulars of the dispute in full

read
as follows:

“DETAILS
OF ALLEGED DISPUTE:

Roosevelt
Kgosi vs. China Civils

I commenced work for the Lobatse Project on 20-10-04 as
the Human Resources Person. For a salary of P4,500 per month.
Despite
the fact that I had been retrenched from another project
belonging to the company only a month previously, the project
manager
put me under probation for three months. During the first
ten day’s of my probation I was never shown any rules or
conditions
for being tested, routine issues which had been in
existence before I was employed emerged and I paid them due
attention. However
on 29-1-09 the Project Manager unduly
terminated my services citing unsuitability as the reason. I
contested the dismissal on
the grounds of lack of notice, arbitrary
dismissal and repatriation.”

[4] The respondent filed its
statement of defence signed by Mr. Li Hua on 28^th
October 2004 setting out the reasons for the applicants’ dismissal
and denying any prior employment relationship. Pleadings were
then
deemed closed.

[5] In the court file, there
appears an “Appendix 3”
on behalf of the applicant. This undated typed document which bears
no court or registry stamp, set out several averments not previously
contained in the applicant’s statement of case. For the sake of
clarity I set out hereunder the full document:

“APPENDIX
3

ROOSEVELT T KGOSI (Applicant) and CHINA CIVIL
ENGINEERING (Respondent)

Case Number 500/04

The applicant was offered employment by the respondent
as an administrator at the Shoshong Village Water and Sanitation
Project
on 27/05/02 under the leadership of Mr. Song Liu (Project
Manager). The applicant was retrenched in
August 2004 but by then a major project for the construction of the
New Lobatse Mental Hospital was under way and a large number
of
drivers and operators were transferred to the new project. The
applicant had the legitimate expectation of securing further
employment but was compelled to re- apply. An interview was held at
which the applicant was offered employment along similar lines
as
the former position, but he was verbally contracted to serve three
months probation.

The Applicant commenced work on 20-09-04 and
immediately began to tackle some outstanding routines as well as
requests from the
Project manager Mr. Tony Wang who tended to
antagonize the applicant at the nearest opportunity, besides that,
the employees also
looked up to the applicant to represent their
aspirations. Finally on pay-day (29-09-04) the project manager
declared the applicant
dismissed by paying him ten days wages
without payment of entitlement to notice pay, the reason being that
he was unsuitable.

The applicant protested against the dismissal at the
Industrial Court on the grounds that his conduct had been fair that
the respondent
was unable to specify the standards of performance
which were used to determine the applicant’s suitability.

The applicant further submits that the retrenchment was
a trick to prevent him from deriving high benefits and compensation,
to
prove his point, the applicant invokes the case of Rapula
Kgosiemang Versus Peace Motors (Pty) Ltd.) which was decided at
the Industrial Court 10^th January 1994, the Court ruled
out the retrenchment as unfair.

The applicant also puts it to the Court that the
probation is illegal for the reason he was employed by the
respondent (China Civil
Engineering) for two years previously, in
addition the probation was not made out in writing as Section 20 (3)
of the Employment
Act requires. The applicant invokes the case of
Lesego Mabua vs. Maharaja Restaurant (8^th January
1999).

In his pleadings the applicant asked for three months
compensation which addresses notice pay, settlement and
repatriation, however,
he also begs the court to make the following
considerations;

(a) the applicant is about fifty years of age which
limits the chances of employment.

(b) The actual losses suffered by the applicant as a
result of the wrongful dismissal.

(c) The value of the project is high.

(d) The purported circumstances of the dismissal
revolve around office war for which there is no immediate remedy.”

[6] On the morning of the
hearing, attorney Mr. T.C. Ketshabile appeared for the applicant and
Ms. Cornelia Smit a consultant, appeared
for the respondent. Mr.
Ketshabile made no application to the court for acceptance of his
client’s “Appendix 3” which
appeared to have found its way into the court file after pleadings
were closed. Furthermore, it transpired that the respondent
had not
even had sight of “Appendix 3”
and Ms. Smit requested some time to peruse the document. The court
then stood the matter down until the parties were ready.

[7] At the commencement of the
proceedings proper, I pointed out the law relating to contracts
providing for a probationary period
of employment. – See Lesego
Mabua vs. Maharaja Restaurant Case
No. IC 50/97 dated 8^th
January 1999 (J261).
I also pointed out to Mr. Ketshabile that there appeared to be a
difference between the respondent CCEC (China Civil Engineering
Company), and the applicant’s previous employer CGC/CCEC Joint
Venture (China Geological Company/China Civil Engineering Company
Joint Venture); and that his client’s argument on continuity of
employment may not be sustainable therefore. I further pointed
out
to him the law relating to the termination by operation of law of
fixed term contracts and contracts for specified pieces of
work. The
court then adjourned for the parties to consider their positions.

[8] When we reconvened at 11.35
a.m., Ms. Smit advised the court that her client had upped its offer
or tender of 14 days wages in
settlement hereof to one month’s
notice pay, even though the applicant only worked for 10 days.

(9) Mr. Ketshabile rejected this
offer and countered two months compensation in settlement, on the
grounds that his client had been
in the continuous employ of the
respondent CCEC since May 2002; this averment notwithstanding the
applicant’s certificate of service
from CGC/CCEC Shoshong Project
stating he worked there from 27^th
May 2002 to 25^th
June 2004. And further, said averment also notwithstanding the clear
documentary proof that the applicant left the Shoshong project
on
25^th
June 2004 and only took up the Lobatse Project some three months
later on 20^th
September 2004. And further notwithstanding that the applicant had
applied in writing for employment, (and not a transfer), on 24^th
July 2004 for the Lobatse project; “Following
our telephone conversation in which I enquired about the position of
administrator, I am submitting my curriculum vitae,
certificates and
references”. Furthermore,
notwithstanding that his client had not challenged the alleged
wrongful retrenchment from the CGC/CCEC Shoshong Project.

[10] In the light of the
documents before us and the admitted facts, I cautioned Mr.
Ketshabile at the outset regarding costs, should
his client’s
persistence in alleging continuous employment with the respondent
from 2002 prove to be spurious. Mr. Ketshabile nevertheless
decided
to proceed with his client’s claim as pleaded in Appendix 3.

The Evidence

[11] The applicant testified
that his employment relationship with the respondent commenced in
June 2002 when he worked on the CGC/CCEC
Shoshong Project. In June
2004 he was given notice that there was no more work due to
completion of the project. He became aware
of the Lobatse Project
because he was arranging the transfers of some employees from
Shoshong to Lobatse. He applied for the post
of administrator at
Lobatse although he had several other irons in the fire.

[12] Following the interview
where he agreed to serve three months probation, he commenced at the
Lobatse project on 20^th September 2004. He was
immediately tasked with preparing employment contracts for all the
employees. On 29^th September 2004, before he could
complete any of the contracts, the project manager Tony Wang paid him
his wages for the 10 days and
dismissed him on the grounds of
unsuitability.

[13] The assistant project
manager Li Hua testified for the respondent. He said after the
applicant agreed to a three months probationary
period and commenced
employment, Li instructed him to immediately draw up an employment
contract for the applicant himself, and a
standard contract for all
other employees. All these contracts were to include a probationary
period and needed to be signed immediately.
On 21^st
September 2004 the applicant had produced nothing. Li gave him a
deadline of two more days to complete the contracts as the project
had started. Due to the applicant’s failure to deliver on the
contracts and other tasks and instructions given to him, and
following
a verbal warning, he was dismissed on 29^th
September 2004.

[14] It is the respondent’s
case that as the applicant had been offered totally new employment at
the Lobatse Project, and was dismissed
during the probationary
period; no compensation or notice is due to him.

The issues

[15] The applicant’s main
contention is that set out in Appendix 3 viz;

– that the probation was
illegal as he worked for CCE for two years previously;

• that the probation period was
  invalid as it was non- compliant with Section 20 (3) of the
  Employment Act; and

• that his alleged retrenchment
  from Shoshong was a ruse to simply sever his continuous employment
  with CCE, thereby depriving
  him of higher compensation.

[16] I shall deal firstly with
the first and last points above. I have set out at paragraph [9] of
this judgment that the applicant’s
representative persisted with
this line of argument despite and notwithstanding the circumstances
set out under paragraph [9] which
I will not repeat again.

[17] Furthermore, having pursued
this line of argument regarding his client’s alleged continuous
employment for the most part of
the trial, Mr. Ketshabile was
eventually forced very late in the proceedings to admit that the
court’s time had been unnecessarily
wasted. The transcript of the
taped proceedings verbatim reads:

Mr.
Ketshabile: “Now that he said he was
employed by China for the project, and the project was completed,
then my understanding is totally different
from that one. And in
that case the only point that remains is that then there are two
different contracts like he said. I thought
there was the one. We
should now concentrate on the second one, the Lobatse project. We
should have not wasted the court’s time
by in fact talking about
Shoshong”.

[18] Following this belated
admission the only issue remaining was that of the termination of the
applicant’s employment on 29^th September 2004 during the
alleged probationary period.

Probationary Period:
Requirements

[19] The ILO Termination of
Employment Convention C 158 of 1982 inter alia requires that the
termination of a contract of employment
must be substantively and
procedurally fair – See Articles 4 and 7. Article 2.2 of Convention
No. 158 states that a member may
exclude, from some or all of its
provisions, workers serving a probationary period which is
“determined in advance and of reasonable
duration”.

[20] The Court has already said
that it was the Respondent’s contention that since the Applicant
was serving a probationary period,
no reason was required to be given
for the termination of his employment in accordance with Section 20
(2) of the Employment Act
since it was deemed to be for just cause.
This section reads:

“20(2)
Where a contract of employment is terminated during a probationary
period by either the employer or employee under section
18 or 19 by
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 therefor.”

[21] The Applicant on the other
hand submitted that his employment was not terminated during a valid
probationary period because of
the Respondent’s non-compliance with
Section 20(3) of the Employment Act; ergo, the Respondent had to
justify the Applicant’s
dismissal.

[22] It is clear that an
employer may provide for a probationary period where the contract of
employment is of an indefinite nature. Section 20 (1) of
the Employment Act states that:

“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 3 months in the case of unskilled employees and 12 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.”

[23] However, in terms of
Section 20 (3) of the Act:

“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.”

[24] It is trite law that the
word “shall” in any Botswana statute cannot mean anything else
other than “shall” – see G. Moroka vs. Feedem Catering
Services Botswana (Pty) Ltd Case No. 137/96 dated 23^rd
August 1996. See also Charlotte Mosala vs. Car World
IC. No. 21/97 per Acting Judge S.M. Hardisty:

‘The word “shall” in Section 20 (3) of the Act is
construed by virtue of Section 45 of the Interpretation Act (Cap.
01:04) as “imperative”.

…………Accordingly an employer prior to entering
into a contract of employment for an unspecified period of time must
advise a prospective
employee of the length of the probationary
period and he must advise the employee in writing.’

[25] There is no ambiguity in
the reading or purport of Section 20 (3) of the Act. It simply says
that before entering into a contract
of employment which is to be
subject to a probationary period the employer-to-be shall inform
the employee-to-be in writing of the length of the
probationary period.

[26] That the provisions of
Section 20 (3) of the Act require written
notification by the employer
of the length of the probationary period before entering into a
contract of employment was affirmed in the case of Lesego
Mabua vs. Maharaja Restaurant,
supra. It is also clear that a probationary period applies “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”; the
Lobatse Project being such latter type of contract.

Findings

[27] It is common cause that the
employer did not notify the applicant of the length of the purported
probationary period in writing
before entering into the contract of
employment contrary to the above provisions of the Act. The
probationary period was therefore
invalid. By commencing employment
without written notification of the length of the probation, an
employee does not waive the right
to strict compliance with Section
20(3)- see at page 19 of my judgment in the matter of Connie
McLean v Consolidated Contractors Company Case No. IC 125/98
dated 11^th March 1999{J276}.

[28] The applicant was
therefore employed for the Lobatse project with no valid probation.
The respondent led no evidence of an enquiry.
No doubt in the
mistaken belief that the applicant was on probation, no disciplinary
enquiry was convened before his dismissal. The
applicant’s
dismissal was therefore procedurally unfair.

[29] Not only was the
probationary period invalid in law, but the respondent gave a reason
for the termination of the applicant’s
employment as unsuitability
and failure to comply with lawful instructions to draw up a standard
contract of employment. The applicant
did not deny that he failed to
deliver. Instead he gave various reasons for his failure. At first he
said the printer had broken
down. He said he had problems with the
secretaries. Then he said he was delayed because the employer wanted
“something classy”,
incorporating codes of conduct and grievance
procedures; and not just an employment card. He said he was delayed
because he took
it upon himself to attempt to translate the Code of
Conduct into Setswana.

[30] The court finds the
applicant’s explanations regarding his admitted refusal to comply
with lawful and reasonable instructions,
unconvincing. The court
finds that the respondent had reason to summarily terminate his
contract of employment without notice. His
dismissal was therefore
substantively fair, although procedurally unfair.

Compensation

[31] In any case where the court
determines that an employee has been wrongfully dismissed or
disciplined, it may order the payment
of such compensation as it
considers just, subject to its discretion to make any other order it
considers just. The court may take the following factors into
account in assessing the appropriate amount of compensation under
Section 24 of the Trade Disputes
Act:

(a) the actual and future loss likely to be suffered by
the employee as a result of the wrongful dismissal;

(b) the age of the employee;

(c) the prospects of the employee in finding other
equivalent employment;

(d) the circumstances of the dismissal;

(e) the acceptance or rejection by either the employer
or the employee of any recommendations made by the Court for the
reinstatement
of the employee;

(f) whether or not there has been any contravention of
the terms of any collective agreement or of any law relating to
employment
by the employer or the employee;

(g) the employer’s ability to pay.

[32] The relevant factors are
(a) to (d) and (g). The applicant said he obtained new employment in
February 2005; between his dismissal
and this time he was involved in
training. At 50 years old he was still employable as evidenced by the
fact that he had other options.
Factors (a) to (c) therefore favour
the respondent.

[33] The applicant says he is
entitled to more compensation as the contract value of the Lobatse
Project is high. This is a mistaken
impression. Factor (g) requires
that the court consider the employer’s ability to pay; i.e. that
the employer is in a position
to meet an award. It does not mean that
the employer is a cash cow and that the wealthier the employer, the
higher the compensation.

[34] The circumstances of the
dismissal are that it was only procedurally unfair; and that the
applicant was employed for an extremely
short period of 10 days.
Although he was dismissed on 29^th September 2004, he
refused to vacate the site accommodation until about 6^th
October 2004 and unjustly enriched himself with the benefit of an
extra week’s accommodation. He rejected an offer of 1 month’s
compensation and the court’s time was unduly taken up on unfounded
issues. In the circumstances we find that compensation of half
a
month i.e. P 2,250.00 is appropriate.

Conclusion

[35] Some 4 months after this
matter was heard; notwithstanding Section 4 of the Ombudsman Act Cap.
02:12 which states that the Ombudsman
shall not investigate any
action or action taken in respect to “the
commencement or conduct of civil or criminal proceedings in any
court”; the applicant,
bypassing his attorney and the Industrial Court; wrote a letter of
complaint to the Ombudsman about the delay in
his case. On the
contrary, the applicant was indeed fortunate to have his case listed
for hearing at the Industrial Court within
5 months of his dismissal
in what I can only describe as undue haste; whilst many applicants
are waiting patiently in the queue due
to the substantial increase in
the number of cases before us.

[36] Cases and judgments may be
delayed for any number of reasons. The court must say that it was not
impressed by the level and extent
of unpreparedness in this case. The
applicant’s unfounded insistence on continuity of employment wasted
valuable time. So too
the respondent’s reasoning that the
applicant was on probation when clearly the employer had not complied
with the Act requiring
written notification and or the payment of
notice. Furthermore, that probation is not applicable to contracts
for a specified piece
of work without reference to time. However,
the respondent was caught wrong footed because the applicant failed
to serve Appendix
3 on the company as he had done with his initial
statement of case. In the latter document he did not take issue with
his probationary
status, he changed horses subsequently without
notifying the respondent. Parties who delay proceedings and fail to
follow procedure,
must suffer the consequences.

[37] “In
Beck’s Theory and Principles of Pleading in Civil Actions it is
stated at p32 that the functions of pleadings are three-fold:

To ensure that both parties know what are the points of
issue between them so that each party knows what case he has to
meet; pleadings
clarify the issues between the parties and they
should not direct the attention of the other party to one issue and
then at the
trial, attempt to canvass another.

To assist the court by defining the limits of the
action hence the parties will be kept strictly to their pleas where
any departure
would cause prejudice or would prevent full inquiry.

To place on record the issues as raised in the action
so that when judgment is given it may be a bar to the parties
litigating again
on the same issues ….” –
I am indebted to Honourable Justice Chinhengo for the above extract
(See paragraph 39 of this judgment).

[38] As issues were not clearly
identified, and the law apparently unclear despite my directions at
the outset, court time was wasted
by irrelevant and tangential
questions. At one stage of the proceedings when I moved to disallow a
question, rather than convince
the court as to the relevance or
propriety thereof, the applicant’s attorney threatened to withdraw
from the case without consulting
with his client. At the conclusion
of the evidence as well, the applicant’s representative begged
leave to file written heads as
he was unprepared on the grounds that
“I cannot write and speak at the same time”.

[39] “A legal practitioner
should be prepared to address the court when invited to do so at the
end of a trial. In Goto
v Goto
2000 (1) ZLR 525 (H)
at 258 D-E it is stated that:

Legal practitioners should be prepared and ready to
address the court at the end of a trial. It is the time honoured
practice for
all legal practitioners to do so. It saves the court’s
time. It facilitates the immediate handing down of a judgment. It is
an
indication that the legal practitioner has closely followed the
proceedings understood them and has prepared himself to persuade
the
court as to his client’s cause. The practice of routinely requesting
the court to file written addresses must be discouraged.
In future,
I would not hesitate as a general approach to deny a legal
practitioner the costs associated with the preparation of
written
addresses where he has been unable because of unpreparedness, to
make an oral address to the court”.

The judge ordered that the
defendant’s legal practitioner in that case should not charge or be
paid any costs in respect of the preparation
and the filing of the
written address. Allowance will, no doubt always be made for the more
complex cases where it may be necessary
to prepare and file a written
address.” – (From an address by the Honourable Justice Chinhengo
currently of the High Court of
Botswana titled “The
Shortcomings In A Legal Practitioner –
A

Judge’s Perspective” delivered
at a
Seminar on
Continuing Legal Education
Rainbow Hotel:
Bulawayo: 12 October 2002.)

[40] The applicant is fortunate
that Ms Smit did not press for costs. Counsel are advised to take
sufficient instructions from client,
prepare adequately, and to warn
client when he is flogging a dead horse.

Determination

In all the circumstances of this
case, the court makes the following determination:

1. The applicant’s purported
probationary period was invalid in law.

2. The termination of the
applicant’s contract of employment on

29^th September 2004
was substantively fair but procedurally unfair.

3. In terms of Section 25 (1) as
read with Section 24 of the Trade Disputes Act, the respondent is
hereby directed to pay to the
applicant, the sum of P2,250.00 being
compensation.

4. The respondent is further
directed to pay the aforesaid sum of P2,250.00 to the
applicant through the office of the Registrar of the Industrial
Court on or before Friday 24^th March 2006.

5. No order is made as to costs.

Dated at Gaborone this
day of February 2006.

…..………………………………..

M.
EBRAHIM-CARSTENS

INDUSTRIAL
COURT JUDGE

We agree on the facts:

….……………………………………….

M.B.S. LESELWA

NOMINATED
MEMBER (BOCCIM)

..……………………………………..

R. TSHEPHE

NOMINATED
MEMBER (UNION)

---