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R

IN
THE INDUSTRIAL COURT OF BOTSWANA

HELD
AT MAUN

CASE
NO. ICF. 87/2004

IN THE DISPUTE
BETWEEN

KAGISANO
MOHUHUTSO ………………………. APPLICANT

AND

ELEPHANT BACK
SAFARIS ………………………. RESPONDENT

CONSTITUTION
OF THE COURT

M.
EBRAHIM-CARSTENS INDUSTRIAL COURT JUDGE

N.P. MOROKA
NOMINATED MEMBER (BOCCIM)

K.S. JANKIE
NOMINATED MEMBER (UNION)

FOR THE
APPLICANT

IN PERSON

FOR THE
RESPONDENT

MRS. ROSEMARY
SLOWGROVE MARKETING AND

RESERVATIONS
MANAGER

PLACE AND DATE
OF PROCEEDINGS

FRANCISTOWN
22^ND
AUGUST 2005

Applicant’s
employment terminated on unfounded diagnosis of epilepsy – No
consultation – Dismissal unfair – Compensation under
Workers’
Compensation Act and Trade Disputes Act separate and distinct –
Industrial Court no jurisdiction under former.

JUDGMENT

[1] The applicant was employed
on 16^th January 2004 as a Tent Lady and cleaner at Abu
Camp, a game camp operated in the Delta by the respondent. She is
claiming three
months’ compensation or reinstatement for the
alleged unfair termination of her employment in July 2004 following
what appeared
to be an epileptic fit she suffered whilst on duty at
camp. It is common cause that she suffered some form of seizure or
attack
following a prank by the chief mahout who leapt from behind a
bush with a mighty roar, causing the applicant to faint.

[2] The respondent does not deny
the mahout’s horseplay caused the applicant to have an attack, the
effects of which the respondent
says were that she could no longer be
deployed at the camp because of the serious risk factor; Abu Camp
being based in a wildlife
management area unprotected by fences or
electrical strands with wild animals often roaming round the camp.
In any event, the respondent
alleges that on examination of her
medical report and following discussions, the applicant was paid all
her terminal dues which she
accepted without protest, at the same
time collecting forms to pursue a claim for Workman’s Compensation.
It was only about a
month later that she raised a claim for unfair
termination.

[3] Rosemary Slowgrove, the
respondent’s then Operations Manager, testified that on receipt of
a report from Abu Camp on Saturday
3^rd
July 2004, the Managing Director Randall Moore immediately arranged
for a plane flown by a special freelance pilot, to airlift the
applicant from the camp to the Maun Hospital as she appeared to be
very ill. Slowgrove said that when she met the applicant at the
airport, she was limping, unable to talk properly and her right arm
was lame. In fact she appeared lame on one side of the body
and
looked seriously ill. She said the initial diagnosis was that the
applicant had had an epileptic fit.

[4] On Monday 5^th
July 2004, following two days sick leave, the applicant reported for
duty at the respondent’s Maun offices seeking a lift to go
back to
camp. She alleges she was dismissed immediately by Slowgrove who
handed her a termination letter. Under cross-examination
she agreed
that the letter was in fact addressed to the Labour Officer as
follows:

“On
Saturday morning we received an urgent radio message that our staff
member Kagiso Mohuhutso, had an epileptic fit at Abu Camp
and needed
to be flown out for medical attention. The company luckily flew its
private plane there to collect her and rush her
to hospital
whereupon she was diagnosed with epilepsy.

At present
our company is skeptical in sending her back to camp in case this
incident occurs again. We unfortunately have also no
further use of
the private plane as before and would not like to employ Kagisano,
as this a serious condition that can occur at
anytime and would not
like to be responsible for any serious consequences.

I would like to find out also
if Workman’s Compensation is able to provide for her whilst she is
not employed in the bush until
such time that she will be able to
support herself in Maun or another town.

Please advise if I have taken
the correct steps in this current situation.”

[5] Slowgrove said she wrote the
aforesaid letter because “I
wanted guidance from labour.”
Apart from a telephone call when she was scolded by a labour officer
for making a copy of the applicant’s hospital card, she received
no
further response from the labour department. On 7^th
July 2004 therefore, she paid the applicant P1,246.00 as her terminal
dues. On 9^th
July, the applicant registered a complaint for overtime. Slowgrove
testified that although the applicant worked from 7.00 a.m. to
7
p.m.; she had sufficient breaks to interrupt the 12 hour day.
Nevertheless, the company decided to pay her a further P300.00 on
26^th
July as a 1/3 (one third) bonus normally payable at year end
following her complaint for overtime.

[6] When Slowgrove received a
further notice on 8^th
August 2004 to attend a hearing for unfair termination about a month
later, she “disputed and said I am not paying any further.”

[7] It was not until the
specialist physician refuted her claim for disability for worker’s
compensation on the grounds that “medical
history and physical examination do not reveal anything. Diagnosis of
epilepsy cannot be made in this case;”
that the applicant lodged her protest for unfair termination on 4^th
August 2004.

[8] Slowgrove submitted
therefore that the applicant having accepted her dues; and crying
foul only much later in the day when she
had difficulty with her
claim for workers’ compensation; the matter had been settled or
resolved.

[9] It is clear that the first
issue to be decided is whether this matter had been settled and
whether there is any dispute remaining
for this court to decide.

Settlement

[10] It is settled law that the
Industrial Court only has jurisdiction to determine unresolved trade
disputes; if a matter has been
settled, there is no longer a dispute
for determination. See the case of Mothibedi Mogale vs Water
Utilities Corporation case No. IC. 33/94 dated 20^th
November 1995. See also the following cases:

[11] In the matter of Victor
Mokute vs. Senn Foods (Pty) Ltd), supra, I said at page 7 onwards
of the typed record:

“However, in the South African
Law of Unfair Dismissal (1994 Edition) at page 92 by P.A.K. Le Roux
and Andre van Nierkerk, it is stated
that an uncritical acceptance of
the argument that a Court should not hear a matter because it has
been settled, could give rise
to obvious problems, particularly where
an employee is unrepresented and the settlement agreement is made
shortly after his or her
dismissal.

Nevertheless, in most decisions
where the issue has arisen, the Court has been prepared to consider
the merits of this type of argument.
This it is submitted, is the
correct approach. To suggest otherwise would mean that no dismissal
disputes could be settled prior
to Court action. Not to accept the
possibility of settlement would also be contrary to the purpose of
the Labour Relations Act,
which encourages the settlement of disputes
through negotiation and agreement. However, the Court should be and
in fact has been,
prepared to investigate whether there was a
settlement and whether the agreement which led to the settlement was
a voluntary and
informed agreement” (at pages 92 and 94).

That the Trade Disputes Act Cap.
48:02 of Botswana, (as amended from time to time), encourages
settlement, can be found in various
provisions. By virtue of Section
6A (4) of the Act (as amended) a Labour Officer on receipt of a
protest “shall forthwith proceed
to enquire into the circumstances
giving rise to the protest to try to secure a resolution of the
conflict acceptable to both”
parties. Should there be failure to
reach a settlement, the Labour Officer then refers the matter to the
Commissioner’s office
with a report of his efforts to secure
settlement. Thereafter “where there is a failure, after what, in
the opinion of the Commissioner
….., is a reasonable time, to reach
a settlement of a trade dispute not being settled by other means, the
Commissioner or the Labour
Officer delegated by him shall issue a
certificate …. To the effect that either party may refer the matter
to the Industrial Court”
– (Section 7 of the Trade Disputes Act
as amended).

The Industrial Court itself is
established “with all the powers and rights set out in this Act or
any other written law, for the
purpose of settling disputes, and the
furtherance, securing and maintenance of good Industrial relations in
Botswana” (Section
17 (1) of the Trade Disputes Act.)”

[12] The applicant told the
court that she accepted her dues on the advice of the labour officer.
In the meantime her claim under
the Worker’s Compensation Act,
which she believed was to sustain her whilst unemployed, was under
process.

[13] In the case of Josephine
Santsoma vs. Bokamoso
Community Development Project Case
No. IC. 70/97 dated 12^th
May 1998, at page 9 of the typed judgment I said:

“Following
the South African case of Nouwens
Carpets (Pty) Ltd vs. NUTW
(1989)
10 ILJ C44 (N); 1989 (2) SA 363 (N) where the Court held that a
settlement agreement concluded at conciliation board level had the
effect of a contract, this Court
accordingly concludes that it has no
jurisdiction to entertain this matter unless the settlement was
involuntarily entered into or
forced upon the Applicant unwillingly
or that it was obtained in an improper manner. As to Applicant’s
allegation in passing that
she was forced by Miss Thebe to accept the
aforesaid sum as part payment, the Court finds that the evidence does
not support such
contention.”

[14] There
is no averment in this case of impropriety, irregularity or force.
The applicant said she accepted her terminal benefits
on the advice
of Molebatsi, a labour officer and because Slowgrove also offered to
pay her certain monies “but
later she said she cannot because the doctor said I have no illness.”

[15] In
the case of Philip
Monkutlwatsi vs. Scorpion Clothing (Pty) Ltd, supra,
at page 14 the Judge President E.W.M.J. Legwaila, JP, states:

“….
the Applicant accepted the recommendation of the Regional Labour
Office. Why was he in Court? Applicants going to Labour must
choose
whether they accept the recommendation of Labour. If they accept,
that must be the end of the case. If they do not, they
should not be
allowed to take the recommended compensation. They shouldn’t be
allowed to use one forum and accept its recommendation/decision
and
move on to the next forum on the same case asking for additional
compensation. Compensation is not like withheld wages where
an
employee may accept whatever is available at a point in time without
prejudice to continuing to demand the remaining amount.
Compensation
offered is supposed to be final. It is offered to settle the
dispute. Acceptance of compensation implies acceptance
of the terms
of settlement. If the amount is not accepted it should be rejected.”

[16] The
applicant in this case was in any event lawfully entitled to her
wages, overtime and leave pay. Her acceptance of the bonus
and one
month’s notice pay was clearly not in full and final settlement.
She was led to believe, and indeed expected to be compensated,
in
terms of the Worker’s Compensation Act Cap. 47:03. Worker’s
Compensation is entirely separate and distinct from compensation
payable under the Trade Disputes Act.

[17] Section
55 (1) of the Worker’s Compensation Act Cap. 47:03 provides that
“Except where otherwise
expressly provided, the provisions of this Act shall be in addition
to and not in substitution for the provisions
of any other law.”
In terms of Section 11
(1), the Workers’ Compensation Act applies to a worker who has
suffered personal injury or an occupational
disease arising out of
and in the course of the worker’s employment. The payment of
compensation in terms of the Trade Disputes
Act is for wrongful
dismissal or wrongful disciplinary action – (See Section 24).

[18] I
doubt very much that epilepsy can be classified as a “personal
injury or an occupational disease arising out of and in the course of
the worker’s employment.”
However, had the applicant suffered any injury, the employer would
have been vicariously liable in damages in terms of Section 41
of the
Act:

“41.
Where the injury was caused by the personal negligence or willful
act or default of the employer or of some other person for
whose act
or default the employer is responsible, nothing in this Act shall
prevent proceedings to recover damages being instituted
against the
employer by civil suit independently of this Act.

Provided
that –

(i) any damages awarded in such civil suit shall take into account
any compensation previously paid under this Act in respect
of the
same injury; and

(ii) any
compensation paid under this Act shall take into account any damages
previously paid in respect of the same injury.”

This
court has no jurisdiction over issues of workers’ compensation –
See my judgment in the case of Mmapula Phiri & Others
vs. Crispin Industries (Pty) Ltd
Case No. IC. 47/2002 (J800). I will therefore say no more about this
aspect of the case.

[19] The
applicant’s acceptance of the monies paid to her was therefore
conditional and uninformed. The court finds that the matter
was not
settled, and that there is a dispute for determination.

Substantive and procedural
fairness

[20] Procedural fairness relates
to the procedure which an employer should follow prior to dismissing
an employee. The list of equitable
guidelines for a fair procedure
are set out in the case of M. Phirinyana vs. Spie Batignolles
Case No. IC 18/94 dated 6^th January 1995. They need not be
listed here and are addressed further below.

[21] Substantive
fairness relates to the reason for an employee’s dismissal. The
requirement that there must be a valid reason
for a dismissal,
whether the dismissal is with or without notice; stems from Article 4
of the ILO Termination of Employment Convention
No. 158 of 1982 which
states that:

“The employment of a worker
shall not be terminated unless there is a valid reason connected with
the capacity or conduct of the worker
or based on the operational
requirements of the undertaking, establishment or service.”

[22] In the decision of Johani
Moseki vs. Johnson Crane Hire (Botswana (Pty) Ltd Case
No. IC 143/99 dated 18^th
February 2000; de Villiers J, found that the aforesaid Article 4 is
also applicable to the termination of a contract on the grounds
of
incapacity due to ill health, “since
the use of the word “capacity” in the said Article, used in the
said context also includes incapacity” –
See at page 15 of the typed judgment.

Termination on account of ill
health or injury

[23] Regarding the requirements
for dismissals on account of ill health, in the aforesaid case of
Moseki, at page 15 of the typed record Justice de Villiers
states that:

“There is no provision in the
Botswana legislation for termination of a contract of employment due
to ill-health … … … The
Court must therefore look elsewhere
for guidance in this respect. As dismissals because of ill-health
are so closely related to
dismissals for incapacity to perform, the
Court will now set out the International principles regarding
dismissals for incapacity
to perform…”

At pages 16 to 18, the Learned
Judge sets out the equitable substantive and procedural principles
discussed by various authors relating
to such dismissals, and
applicable in England and South Africa. These principles in a
nutshell are summarised at page 19 as follows:

“To sum up these principles,
there must first and foremost be a valid medical reason for an
employee’s incapacity to perform, i.e.
the illness must be such
that the employee can no longer, as a result of the said illness,
perform the duty for which he was employed.
Temporary absence from
work because of illness is not a valid reason for termination of a
contract of employment. The employer
must first assess what the
illness is, then the seriousness of such illness and then he needs to
make a prognosis. This must be
done in consultation with the
employee and if possible also with a medical practitioner. If the
employer is thereafter satisfied
that the employee is not capable of
performing the work for which he was employed and there is no
available alternative work, the
employer will be justified in
terminating the employee’s contract for incapacity to perform his
duties. That would be a valid
reason for such termination.

An employee who is incapable of
performing his duties due to ill health, is not guilty of any
misconduct, let alone serious misconduct.
Such an employee’s
contract of employment may therefore not be terminated without
notice. This is in accordance with the aforesaid
Article 11 of ILO
Convention No. 158.”

[24] In cases of incapacity due
to ill health, the Courts have tended not to impose adherence to the
requirements of the procedural
fairness test ā
la Phirinyana; since even according to ILO Convention 158,
procedural requirements extend only to reasons related to a worker’s
conduct or performance.
Le Roux and van Niekerk in the South African
Law of Unfair Dismissal, at page 229), find that :

“…The answer probably lies
in the close relationship between substantive and procedural fairness
which exists in cases of incapacity.
Substantive requirements
necessitate an assessment and a prognosis. To satisfy either of
these requirements entails the participation
of the employee in some
form.”

Incapacity arising from ill
health or injury can therefore be a legitimate reason for terminating
a contract of employment if it is
fairly done. Whilst the usual
disciplinary enquiry is not necessary, the employer is obliged to
establish the nature and extent
of the disability through meaningful
consultation with the employee, either with or without the
intervention of a medical doctor.

[25] If the incapacity is
serious or permanent, the employer should consider alternative
employment or adapting the employee’s work
to accommodate such
disability. If the employee is temporarily unable to work, the
employer should investigate the extent of the
incapacity. If the
employee’s absence is prolonged, the employer should investigate
alternatives short of dismissal taking into
account the nature of the
job, the period of absence, the seriousness of the illness or injury,
the possibility of obtaining a temporary
replacement and so on. –
See also my judgment in the matter of Ameliah Sanders vs. Dawson &
Frazer ((Pty) Ltd Case No. IC. 92/01 dated 24^th
January 2002.

The applicant’s case

[26] The
Court will now examine the facts of the Applicant’s case and apply
the legal principles pertaining to terminations on account
of
incapacity due to injury or ill-health. The respondent dismissed the
applicant for incapacity due to epilepsy. The applicant
says this
was not a valid reason since the specialist physician on 27^th
July 2004 said no such diagnosis for epilepsy was possible. Even the
initial dignosis on 3^rd
July 2004 on her out-patient card states “no known epilepsy”.
Slowgrove maintained that a diagnosis could not be made from a
mere
physical examination and that “on
speaking further to another private doctor, it was explained to me
that it was impossible to tell if a person suffered from
epileptic
fits without thorough examination, that requires an EEG, which I
presume, would cost a lot of money and cannot be done
locally in Maun
Hospital”.

[27] It
is clear from respondent’s own admission that no firm diagnosis was
made such as to warrant a conclusion of permanent incapacity
on the
applicant’s part. There was only a premature conclusion by
Slowgrove that the applicant suffered from epilepsy. There
was no
meaningful consultation and no proper assessment or prognosis.

[28] In
the circumstances of this case, the court finds that the respondent’s
unilateral premature and non-professional assumption
that the
applicant had epilepsy did not constitute a valid reason for the
termination of the applicant’s employment. Her dismissal
was
substantively unfair. The applicant’s dismissal was also
procedurally unfair because there was no consultation and there is
no
evidence that the respondent considered any alternatives short of
dismissal.

Compensation

[29] The
court having found that the termination of the applicant’s contract
of employment was both substantively and procedurally
unfair, the
applicant may be entitled to compensation. In terms of Section 24
the court may consider the following factors:

1. The actual and future loss
   likely to be suffered by the employee as a result of the wrongful
   dismissal;

2. the age of the employee;

3. the prospects of the employee
   in finding other equivalent employment;

4. the circumstances of the
   dismissal;

5. the acceptance or rejection by
   either the employer or employee of any recommendation made by the
   Court for the reinstatement of
   the employee;

6. Whether or not there has been
   any contravention of the terms of any collective agreement or any
   law relating to employment by the
   employer or the employee;

7. The employer’s ability to
   pay.

[30] Factors (a) to (d) are
relevant. At 30, the applicant is relatively young and should be
able to rehabilitate herself economically.
However, she testified
that potential employers always refused to give her a job after they
had telephoned the respondent. Apparently
Slowgrove was telling them
she had epilepsy. Slowgrove admitted that she may have told one or
two enquiring would be employer’s
that the applicant was not suited
to working in the bush although she denied the former allegation.

[31] The circumstances of the
dismissal are an important factor. The dismissal was a “no fault”
dismissal. Indeed, one of the
respondent’s employees is largely
responsible for the applicant’s predicament as there was no
evidence whatsoever of illness
prior to the mahout’s horse play.
The dismissal was both substantively and procedurally unfair. The
respondent prejudiced applicant’s
chances of employment on at least
one or two occasions.

Other factors

[32] The court may take other
factors into account. I find that the applicant’s short service of
six months is a consideration.
However, this must be balanced with
the fact that she had no adverse record and that this was a no fault
dismissal.

[33] The court finds that the
respondent at least made an effort to obtain guidance from the labour
office before applicant’s dismissal.
Unfortunately, this advice
was not forthcoming. Had the labour office made the correct
interventions, this case may have been long
resolved.

[34] The applicant received one
month’s wages in lieu of notice. She also received part of a bonus
normally payable at year end.
In all the circumstances of this
case, the court finds that compensation of two months wages in the
sum of P1,200.00 is appropriate
.

Determination

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

1. The termination of the
applicant’s contract of employment by the respondent on 7^th
July 2004 was both substantively and procedurally unfair.

2. In terms of Section 25 of the
Trade Disputes Act as read with Section 24 (4) the respondent is
hereby directed to pay to the
applicant the sum of P1,200.00 being
two months wages as compensation.

3. The respondent is further
directed to make payment of the aforesaid sum of P1,200.00 to
the applicant through the office of the Registrar of the Industrial
Court on or before Friday 31^st March 2006.

4. 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:

…..………………………………………

N.P. MOROKA

NOMINATED
MEMBER (BOCCIM)

……………………………………….

K.S. JANKIE

NOMINATED
MEMBER (UNION)

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