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R

IN
THE INDUSTRIAL COURT OF BOTSWANA

HELD
AT GABORONE

CASE
NO. IC. 222/04

IN
THE DISPUTE BETWEEN:

FRANK
MOLOKWE ……………………….
APPLICANT

AND

PHAKALANE GOLF
ESTATE HOTEL RESORT ………………………. RESPONDENT

CONSTITUTION
OF THE COURT

M.
EBRAHIM-CARSTENS INDUSTRIAL COURT JUDGE

B.S.
MASWIBILILI NOMINATED MEMBER (BOCCIM)

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

FOR
THE APPLICANT

MR
TENGO RUBADIRI RUBADIRI &
CO.

FOR
THE RESPONDENT

MR
AKHEEL JINABHAI MAGANG
& CO.

PLACE
AND DATE OF PROCEEDINGS

GABORONE
28^TH
APRIL 2005

25^TH OCTOBER 2005

No disciplinary
enquiry held prior to employee’s dismissal-Employer purporting to
reinstate employee with a view to convening a
hearing and remedying
procedural unfairness.

JUDGMENT

[1] The
respondent Phakalane Golf Estate & Hotel Resort, operates an up
market golf estate, clubhouse and hotel resort on the
fringes of
Gaborone. The applicant was employed by the respondent in September
2002 initially as a Waitron. He was subsequently promoted
to Food &
Beverage Supervisor, then to Restaurant Manager; and at the time of
his dismissal for absenteeism on 21^st June 2004, he was
Junior Assistant Food & Beverage Manager, earning a monthly
salary of P 4,500.00. He is claiming 2 years salary
as compensation
for his alleged unfair dismissal.

[2] The
respondent’s case is that the applicant was dismissed for serious
misconduct due to his persistent absenteeism despite several
written
warnings including two final written warnings; one still operative at
the commission of the last offence which finally broke
the camel’s
back. The applicant’s case is that whilst acknowledging the
numerous previous warnings, his dismissal was procedurally
unfair in
that there was no disciplinary enquiry prior to the termination of
his employment. Furthermore, that following his dismissal,
he was
verbally offered reinstatement subject to a disciplinary enquiry but
neither his reinstatement nor the charge, was reduced
to writing.

[3] Only
the applicant and Peter Van Huffel, the respondent’s Operations
Manager at the time testified. That the applicant faced
several
disciplinary enquiries and warning, for his bad record of poor time
keeping and frequent absenteeism during his two year
service, is well
documented in the bundle of papers before the court. It is a matter
of common cause and need not be set out for
the purposes of this
judgment. However, I find it necessary to set out in their entirety,
the correspondences surrounding the immediate
events leading to the
termination of the applicant’s employment.

[4] It
is common cause that on 24^th May 2004, the applicant
received the following letter from the Operations Manager:

“LETTER
OF WARNING

From: Peter van
Huffel

To: Frank Molokwe

Date: 24^th
May 2004

Re: Poor
Timekeeping & Reliability

Cc: Lesang Magang

Malebogo Bakwena

Frank,

It has been brought
to my attention that you constantly come late for your Sunday
Shifts. I have witnessed that personally on three
occasions, where
I have come to the clubhouse on a Sunday and enquired of your
whereabouts.

Last Sunday 23 May
2004, I had rostered you on a 07 -16 to take care of the Steelman
Group’s mini bar charges and assist your colleague with breakfast.
This group until Sunday morning, had only positive comments
of the
entire weekend. By you failing to arrive on time, you have put the
entire management team under pressure and therefore
the mini bar
charges had been delayed resulting in a 20 minute wait for our
departing guests which resulted in a major complaint.

Make I take this
opportunity in reminding you that I roster specified times for a
purpose and that management will abide by the
times specified on the
roster at all times. No changes will be authorised unless
previously approved by me.

You have acted very
irresponsibly and let your fellow management down. Due to the fact
that you have recently been promoted into
your position. I would
have expected a bit more dedication and commitment, especially that
I personally spoke to you about my
expectations with this group.
This letter will serve as a FINAL WRITTEN WARNING
valid for one year. Should this type of behaviour re-occur in the
future, you will leave me no alternative but to proceed with
formal
disciplinary action which could result in the termination of your
services with the company.

Please guide
yourself accordingly in future.

P. VAN HUFFEL

OPERATIONS MANAGER
”

[5]
On 14^th
June 2004, the applicant received yet another letter as follows:

“LETTER
OF WARNING

From: Peter van
Huffel

To: Frank Molokwe

Date: 14 June 2004

Re: Absenteeism

Cc. Lesang Magang

Frank,

Once again, you
have let the team down by absenting yourself from work on Sunday 13
June 2004. You failed to contact your employer
or fellow managers
to report that you would not make it to work. As previously
mentioned, Sundays requires management presence
in Halfway House and
Sunday lunch. By you absconding from work, you have let the entire
team down and set a poor example to your
subordinates. You were
issued with a final Written warning on 24 May for this precise
behaviour.

You have explained
to me that you have a serious drinking problem which is as a direct
result of family problems. May I take this
opportunity in reminding
you that everybody faces their own personal problems, however it is
not expected that they interfere with
one’s performance at work.

I am giving you the
week of 21 -27 June 2004 off, and would strongly recommend that you
seek professional advice from a medical
practitioner to assist you
with your mental state of mind and your excessive drinking habits.
I will further expect a progress
report from a doctor. I must
categorically state that this will be the last time that you abscond
yourself from work. Subject
to a repetition of such behaviour, you
will leave me no alternative but to terminate your services with the
company.

Please guide
yourself accordingly in future.

P. VAN HUFFEL

OPERATIONS MANAGER
”

[6] Alas,
the aforesaid letters proved to be of little effect for on 21^st
June 2004, a final missive was delivered at the applicant’s home in
the following terms:

“LETTER
OF TERMINATION

From: Peter van
Huffel

To: Frank Molokwe

Date: 21 June 2004

Re: Absenteeism

Cc. Lesang Magang

Thola magang

Frank,

It is recorded that
you have ignored my last two letters of warning with regards to your
absenteeism.

Once again you have
let the team down by absenting yourself from work on Sunday 20 June
2004. You failed to contact your employer
or fellow managers to
report that you would not make it to work. As previously mentioned,
Sundays requires management presence
in Halfway House and Sunday
lunch. By you absconding from work, you have let the entire team
down and set a poor example to your
subordinates. You were issued
with a final Written warning on 24 May 2004 for this precise
behaviour.

It is with regret
that I inform you that the decision has been taken to TERMINATE
your services with Phakalane Golf Club Hotel Resort with immediate
effect. You are to hand in your uniforms at your earliest
convenience.

Upon receipt of
company property you will receive your final benefits.

Yours truly,

P. VAN HUFFEL

OPERATIONS MANAGER
”

Reinstatement:
The Applicant’s Case

[7] It
is common cause that there was no disciplinary enquiry held prior to
this final missive of termination. Van Huffel testified
that as the
applicant had been absent without leave for more than 72 hours on
18^th,
19^th
and 20^th
June 2004; (although the documentation and pleadings indicate that he
was only absent on the 20^th
June); he was
deemed to have absconded or deserted the workplace, and no enquiry
was necessary. I should point out at the outset
that this is, in any
case, a mistaken interpretation of the law – see my judgment in the
matter of Dimpho
Molosiwa v E.S.O. 2000
Case No IC 475/2004 of even date.

[8]
Nevertheless, Van Huffel testified that following receipt of the
termination letter, a remorseful applicant came to see him
a day or
two later, apologising profusely and trying to explain that he had
had some problem regarding his brother. He pleaded with
Van Huffel
that his career as senior manager was in jeopardy and begged him to
reconsider. Van Huffel said management agreed to reverse
its decision
and informed the applicant that he would be reinstated subject to a
disciplinary enquiry being convened. Under cross-examination
he
explained that the applicant “came to see me Tuesday or Wednesday
and I said take the week off and I’ll give him a final chance
….He
was reinstated Tuesday or Wednesday the 22^nd
or 23^rd
June 2004.”

[9] It
is the applicant’s case that he did not report for work thereafter
the week commencing Monday 28^th June 2004 because the
respondent failed to give him a written confirmation of his
reinstatement. Van Huffel wrote him a further letter
on 29^th
June 2004:

“ Frank,

A message was sent
to you by Mr Isaac Mangalani to come and see me on Tuesday 29 June
2004 at 10h00. You have failed to make this
appointment. I am
re-scheduling an appointment for Thursday 01 July 2004 at 10h00 in
order to set a date and time for a formal
disciplinary enquiry.

Please make
yourself available at the specified time and date….. ”

[10] According
to the applicant, he kept this appointment on 1^st July
2004 when he found Van Huffel and Thola Magang the Financial
Director, although he did not understand the presence of the latter.

He attempted to relate his story but was cut short and told “case
closed.” Van Huffel on the other hand stated that the applicant
not
only failed to turn up for the first appointment, but became totally
uncooperative and argumentative on the 1^st July 2004 when
they tried to set the charge, hearing date, and venue. They stopped
the meeting, the applicant left and never came
back. About a week
later, the accounts department called him to say the applicant had
come to collect his pay. Under cross-examination
Van Huffel conceded
that the applicant’s uncooperativeness stemmed from the fact that
he wanted written confirmation of his reinstatement
and charge.

[11] Whether
there was an enquiry held after 21^st June 2004 or not,
this much is quite clear; that there was no enquiry held prior to the
applicant’s dismissal on 21^st June 2004. Therefore there
is no doubt that the applicant’s dismissal on 21^st June
2004 was procedurally unfair. However, was the applicant reinstated,
and if so, was the dispute settled? Or if the applicant
was
reinstated, could the respondent’s actions following thereafter
remedy the procedural irregularity of his dismissal?

Remedying
Procedural Unfairness

[12] The
court accepts Van Huffel’s evidence that management purported to
‘reinstate’ the applicant subject to a disciplinary
enquiry as he
still needed to explain his absence that Sunday. This is consistent
with the pattern of the employer’s previous course
of conduct in
always hearing the applicant out and giving him rope. In his hand
written statement of case the applicant states that
“after
I was dismissed from work, I was scheduled to come to work the
following week. I did not as I did not have a new contract
letter to
accept me back………I had given Phakalane Golf Estate a chance to
rectify their mistake but they failed to. I then
took action and
opened a case against them….”

[13] It
has been suggested by N.F. Rautenbach that an employer may rectify
procedural unfairness where an employee has been dismissed
for good
cause:

“….The
clear implication is that an employer who has dismissed an employee
for good cause, but without compliance with the requirements
of
procedural fairness, may rectify the mistake. To hold otherwise
would be unconscionable and unfair. It would mean that an
employer
who has made a procedural mistake would bear it as an albatross
around his neck for ever and a day. No principle of fairness
or
equity could ever endorse such an approach. On the contrary, it has
always been the approach of the industrial court to encourage
the
education of employers and employees towards a better understanding
of the correct procedures to be followed in resolving disputes.

Therefore, a respondent should not suffer by reason of a decision to
rectify procedural errors.

The
Rationale for the Rule

The employer is
entitled to reinstate the employee, subject to the right to continue
with a disciplinary enquiry on the same dispute.
This proposition
is illustrated by the following example. An employer dismisses an
employee for a serious offence such as assaulting
a manager, or a
major theft from the company premises, but fails to hold a proper
enquiry. It would be absurd to require the company
to retain the
employee in perpetuity because of the bungled enquiry. Labour law
is not a game: it is a set of principles or guidelines
aimed at
regulating the relationship between employers and employees in a
fair manner. Procedural non-compliance cannot be a bar
to the
ability of an employer to rectify mistake …………

….. Accordingly
an employer can reinstate an employee subject to holding a
disciplinary enquiry. Using Brassey’s terminology,
the dismissal
in these circumstances is not unfair but premature.”

See
“Remedying Procedural unfairness: an Employer’s Dilemma” (1990)
11 ILJ 466. See also Richard
Chikunyane vs Munnik Holdings (Pty) Ltd T/as Diamond Creek Spur Steak
Ranch Case No IC
168/98 dated 5^th
February 2002 (J 632).

[14] In
the South African case of MAWU
v Henred Freuhaf Trailers (1988)
9ILJ 488 (IC), the employee was dismissed on 2^nd
February 1987, but thereafter reinstated on 10^th
February with retrospective effect to the date of dismissal. The
employee was then suspended on full pay pending a fresh disciplinary
enquiry. An enquiry was held on 11^th
February and this resulted in the termination of his services. The
matter was then referred to an industrial council which failed
to
resolve the dispute. The dismissal complained about was that of 2^nd
February and not the later one of 11^th
February. In an application in terms of Section 46 (9) of the Labour
Relations Act, 1956, the respondent employer raised a special
plea
that the dispute concerning the dismissal of 2^nd
February had been determined by the reinstatement of the employee on
10^th
February. The court held that it was “abundantly
clear” that by
reinstating the employee on 10^th
February the “dispute relating to the dismissal
on 2^nd February
was resolved.” The
court also found that the reinstatement was not “a
sham” because the
employee had participated in the subsequent enquiry and was
remunerated for the interim period.

[15] It
has been said that the motivation of the employer is an important
consideration. In Van
Dyk vs. Markly Investments
(1988) 9 ILJ 918 (IC) an employee was reinstated without the employer
disclosing that it intended to hold a disciplinary enquiry.
The
court found that the employer had neither “played
open cards” with the
employee nor made a genuine attempt to settle the dispute; and
reinstated the applicant. N.F. Rautenbach finds
that this decision is consistent with that in Henred
Freuhauf and suggests
that there are two requirements for an offer of reinstatement to
resolve a dispute. Firstly, the employer must play
“open
cards” and be frank
with the employee on the terms of the reinstatement. Secondly, a
genuine agreement between the parties is prerequisite
for
determination of the dispute. An employee who accepts a conditional
offer of reinstatement thinking that it is unconditional
is not ad
idem with the
employer on the terms of the settlement.

[16] Rautenbach
acknowledges in the aforesaid article that it may be unfair to allow
an employer to repeat the procedural process
in order to “get
it right”, and that the
motive of the employer may well be mala fides. He concludes that
“no model or argument
can ever supply the answers to be given by the Industrial Court in
all cases. The reality of labour relations
is far too complex,
diverse and rich for this ….’.

The
Applicant’s Case

[17] The
South African cases cited above by Rautenbuch, dealt with temporary
reinstatement in an application for interim relief pending
resolution
of the dispute by conciliation or in court in terms of the old 1956
Labour Relations Act of South Africa. In the Chikunyane
case it was not
necessary for this court to come to a conclusion on the propriety of
an offer of reinstatement subject to an enquiry
in the ordinary
course of events. In this case too I find that it is immaterial to
decide whether an offer and mutual agreement
of reinstatement
conditional upon a hearing is applicable in our law. I say so for the
following reasons:

– If
the respondent had indeed fully reinstated the applicant to his
employment on the same terms and conditions, this would have
disposed of the dispute.

– If
the respondent reinstated the applicant with his consent subject to
a disciplinary enquiry being held, and this was indeed
appropriate
in terms of our law, there was in any case no enquiry held after the
alleged reinstatement following the meeting to
set a date and time
for a formal disciplinary enquiry.

– If
it is found there was no reinstatement at all or that such
reinstatement was not competent in terms of our law, then it is
common cause that that there was no disciplinary enquiry held
before the applicant was dismissed on 21^st June 2004.

– In
any event, the probabilities are that there was no reinstatement as
the applicant refused to accept a reinstatement until
he received a
clear and unequivocal letter setting out the terms of his purported
reinstatement.

[18] In
the final analysis, there was no disciplinary enquiry held prior to
the termination of the applicant’s contract of employment
on either
occasion. Van Huffel testified that they were unable to set a date
and to prefer the charges on the second occasion because
of the
applicant’s uncooperative conduct. He said if the court accepts
that the applicant was reinstated, he in any case, waived
his rights
to an enquiry.

[19] There
are exceptions to the general rule regarding pre-dismissal hearings.
One of these is where the circumstances are such
that the employer
could not reasonably have been expected to hold a hearing. Such
circumstances may arise where an employee has
by his conduct
abandoned or waived his right to the hearing e.g. by refusing to
attend the enquiry or by abusing the employer at
the disciplinary
hearing – See the case of Michael Phirinyana vs. Spie
Botignolles Case No. IC. 18/94 dated 6^th January 1995
and

Workplace
Law by John Grogan at page 182 (Seventh Edition).

[20] It
is clear that the applicant’s argumentativeness took the form of
his insistence on a written reinstatement and charges.
Other than
that, van Huffel described his uncooperativeness as “his body
language and facial expressions were of a care less attitude.”
The documents show a meticulous paper trail on the part of the
respondent. One fails to understand why the respondent failed to put
pen to paper as requested on this occasion.

[21] Even
if I were to accept that the applicant was reinstated, it is clear
from the evidence that at this stage, a date for the
disciplinary
enquiry had yet to be set. The court finds therefore that the
applicant could not have waived his rights to a disciplinary
enquiry
at all, if indeed he was still employed at that stage.

[22] In
the final analysis, the court finds that the applicant was not
reinstated. The termination of his contract of employment
on 21^st
June 2004 was therefore procedurally unfair, although substantively
fair. In assessing the amount of compensation he may be due,
the
court may take into account the following factors under Section 24
(2) of the Trade Disputes Act Cap. 48:02 (Laws of Botswana
Revised
Edition 2002):

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.

[23] The
relevant factors in this case are factors (a) to (d). The applicant
is a well qualified 26 year old youth whose prospects
of employment
are good if he could overcome his admitted failings. He is master of
his own destiny and his losses are self-inflicted.
Factors (a) to
(c) above therefore favour the respondent.

[24]
The circumstances of the dismissal are that the applicant’s
dismissal was only procedurally unfair. He was guilty of serious
misconduct and had several written warnings including a final written
warning. The applicant held a senior position and the respondent
had
given him many opportunities to correct his behaviour. The resort is
an international advertisement for Botswana. It boasts
of high
standards and excellent quality of service. I find that the
applicant’s persistent misconduct in these circumstances is
a
primary factor for consideration.

[25] In
the case of Pinkie Matlapeng vs. Lil-Que Consultants Case No.
IC. 425/04 dated 5^th April 2005 a middle management
employee admitted persistent and habitual late coming but alleged
procedural unfairness and lack of
formal written warnings. I held on
the facts of that case that such an employee cannot persistently
arrive late in the hope that
until a full fledged enquiry is held,
she is safe from dismissal. At paragraph [20] I said:

“[20]. In this
case, the applicant admitted guilt. She knew full well the nature
of the company business and the standards required
of her. She was
the only employee manning this department. Good time keeping is an
essential component of any business, in particular,
one where there
is direct contact with clients at a personal level. For one in the
applicant’s position, her persistent late
coming in these
circumstances, set a bad workplace example and compromised good
service delivery. In cases where management is
involved, the need
for warnings and an opportunity to improve is much less apparent. –
See Enoch Basimolodi vs. John Syllas
Transport Case No. IC. 75/89 of 18^th
November 1999 (J362).”

[26] In
all the circumstances of this case, the court finds that an award of
one month’s salary as compensation is appropriate.
There was no
counter-claim made by the respondent for overpayment of wages for the
week the applicant did not work but was paid
for in June 2004. I
find however that the applicant cannot have his cake and eat it. If
he declined the reinstatement, he must
account for the extra week’s
wages.

Determination

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

1. The
termination of the applicant’s contract of employment although
substantively fair, was procedurally unfair.

2. In
terms of Section 25 (1) of the Trade Disputes Act, as read with
Section 24, the respondent is hereby directed to pay to the
applicant the sum of P3,375.00, i.e. P4,500.00 being one month’s
wages as compensation, less the sum of P1,125.00 being overpayment
of wages.

3. The
respondent is directed to make payment of the aforesaid sum of
P3,375.00 to the applicant through the office of the
Registrar of the Industrial Court on or before Friday 31^st
March 2006.

4. There
is no order as to costs.

Dated
at Gaborone this day of February 2006.

……………………………………

M.
EBRAHIM-CARSTENS

INDUSTRIAL COURT
JUDGE

We
agree on the facts:

…………………………………………….

B.S.
MASWIBILILI

NOMINATED
MEMBER (BOCCIM)

…..…………………………………….

S.C.L.
DINGALO

NOMINATED MEMBER
(UNION)

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