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IN
THE INDUSTRIAL COURT OF BOTSWANA

HELD
AT FRANCISTOWN

CASE
NO. IC (F) 8/2005

IN
THE DISPUTE BETWEEN

MOKERESETE
MOSWELA ………………………. APPLICANT

AND

FURNITURE
MART (PTY) LTD. ………………………. RESPONDENT

CONSTITUTION
OF THE COURT

G.L.
TEBOGO-MARUPING INDUSTRIAL COURT JUDGE

L.
MATSHEKA NOMINATED MEMBER (BOCCIM)

B.
N. GAITHOBOGE NOMINATED MEMBER (UNION)

FOR
THE APPLICANT

K.
K. SECHELE KGALEMANG & ASSOCIATES

ATTORNEYS

FOR
THE RESPONDENT

J.
CHILISA BRISCOE ATTORNEYS

PLACE
AND DATE OF PROCEEDINGS

FRANCISTOWN
13 & 14 MARCH, 2006

JUDGMENT

Dismissal
– incapacity – Employer not obliged to retain employee who is not
productive – But alternatives to dismissal have
to be exhausted
before dismissal can be considered fair- medical evidence
establishing that employee fit to perform on post to which
he was
redeployed – employee productive – Respondent not entitled to act
against expert medical opinion

INTRODUCTION

[1] The
Applicant, Mokeresete Moswela was employed as a Branch Manager of
Respondent in Francistown on 1 February, 1996. It is common
cause
that the Applicant was a top performer and at one point was the best
performing Branch Manager of the Respondent in the whole
country. In
2001 he developed eye sight problems. In February 2003 he was
redeployed to work as a Relief Manager after consultation
with
Respondent because of the eye sight problems. This was a demotion
position wise as a Relief Manager post was equivalent to
that of
Assistant Branch/Shop Manager. However the Respondent allowed the
Applicant to retain the salary of a Branch/Shop Manager.

The letter
changing the designation of Applicant from Branch Manager to Relief
Manager is dated 21 February 2003 and appears on page
7 of the
compiled Pleadings. It is in these terms:

FURNITURE
MART LIMITED

EO/213/03/sd

21^st
February 2003

Mr. M. Moswela

Furniture Mart

P/Bag F234

FRANCISTOWN

Dear Mr. Moswela

CHANGE OF
DESINATION (sic)

As per our
discussion, this morning about your state of health (eyes) you agreed
to step down as Manager of shop 36 Francistown as
from the 1^st
of March 2003.

Your new
position in the company will be Relief Manager, your salary will
remain the same but your commission structure will be. 20%
of turn
over if sales targets are achieved.

I would like to
take this opportunity to thank you on behalf of the Management and my
self for all your hard work and loyal contribution
to the company.
Please sign acceptance of this letter and forward one copy to Mr.
Makwaje at Payroll department.

Yours truly,

For/furniture
Mart Limited

E. Odendaal

General Manager
Operations

[2] On
16 August, 2004 the Respondent asked the Applicant to be examined by
an eye specialist in order to determine whether he was
capable of
performing his duties given his sight problems. The Applicant was
examined by an eye specialist who issued a report which
confirmed
that Applicant had some serious eye defects but was fit to perform
the work of a Relief Manager. Notwithstanding the report
by a
qualified ophthalmologist the Respondent took the decision to
terminate Applicant’s employment on notice up to 31 December,
2004.
The letter of termination is dated 30 November, 2004 and marked
Annexure 6 and is in these terms:

FURNITURE
MART LIMITED

30 November,
2004

Mr. Mokeresete
Moswela

C/o Furniture
Mart Shop 2

Francistown

Dear Sir

TERMINATION
OF EMPLOYMENT – YOURSELF

Further to our
discussion held at Head Office on the 30^th November 2004,
management has decided to terminate your service as at today’s
date.

You will be paid
one-month’s notice up until the 31^st December 2004, one
week’s notice for every full year of employment, which is eight
years ten months and 15 days outstanding leave
pay.

Outstanding
prorata gratuity will be paid to you upon clearance by the
department of taxes.

All outstanding
loan amounts due to the company will be deducted form your final
salary.

One month’s
notice P4840.00

8 weeks
notice P9680.00

15 days leave
pay P3025.00

Gratuity
Awaiting clearance certificate

I wish you well
in future

Regards

Eric Odendaal

General Manager,
Operations

[3] It is the
Applicant’s case that the Respondent did not

have a valid
reason for dismissing him and he wants the court to order the
Respondent to reinstate him as a Relief Manager and to
pay him 6
months equivalent of salary as compensation for unlawful dismissal.
In the final submissions Mr. Sechele indicated that
the Applicant was
no longer interested in reinstatement and would settle for the 6
months compensation only.

[4] The
Respondent opposes the Applicant’s claim and avers that even though
the eye specialist report was to the effect that the
Applicant was
fit for the job of Relief Manager, practically the Applicant was not
fit to perform his duties due to his poor eye
sight. On this basis
the Respondent asked the court to dismiss the Applicant’s claim.

THE EVIDENCE

[5] The parties
were each represented by qualified Attorneys and they chose to call
witnesses to give sworn testimony. Mr. Sechele
elected to call the
Applicant to give evidence and Ms Chilisa for the Respondent called
the Regional Manager for Francistown, Mr.
Kebabonye Mavele and the
General Manager Operations, Mr. Eric Odendaal. Regrettably the
Respondent was not able to call the Ophthalmologist
Dr. Zheng Wen to
the stand.

[6] The
Applicant stated in his testimony that his job as Relief Manager
entailed bringing sales to the Respondent’s 3 shops in
Francistown.
These were shops 2, 36 and 42. He stated that his performance was
assessed on the basis of the sales he brought in
but that he also
trained the sales team. He testified that his job as Relief Manager
did not require him to use computers as the
equipment affected his
eyes. He stated that this was as a result of an agreement with
management.

[7] It was the
testimony of the Applicant that he performed well in the job of
Relief Manager as he met the millions of Pula sales
targets set for
him and he was rewarded with a performance bonus or commission. The
Applicant referred the court to a handwritten
document marked
“Annexure 1” which indicated that from March 2003 to October 2004
he achieved 100% and above of target in 16
months of the 20 months
reviewed. It was only in 4 months that he scored below 100% and he
confirmed that he did not receive commission
for those months. The
Applicant also produced some payslips for this period marked
“Annexure 2” which reflect the amount of
commission paid to him
each month. He stated that this was proof that he was a good
performer and that the Respondent was happy
with his performance as
Relief Manager or Assistant Shop Manager as reflected in the
payslips.

[8] The
Applicant testified that on 8 August, 2004 while he was attending a
course in Gaborone he was summoned to the office of Mr.
Odendaal,
General Manager, Operations. He stated that when he got to the
office Mr. Odendaal informed him that the Respondent wanted
to give
him early retirement. When he asked for the reasons for this he was
told that he needed to see an eye specialist. The Applicant
asked
that Mr. Odendaal should write formally to him on what he was
required to do.

[9] The letter
from Mr. Odendaal to Applicant requesting him to see an eye
specialist came on 16 August, 2004 and it is marked “Annexure
3(a)”. It is in these terms:

FURNITURE
MART LIMITED

Mr. Moswela

C/o Furniture
Mart Francistown

2004-08-16

Dear Mr.
Moswela,

As per our
discussion, can you please arrange to have your eyes tested by a
recognised eye specialist in order for us to establish
your
capabilities in order to perform your duties within our organisation.

In view of the
above we as a company would like to establish if you are fit to
continue with your duties as demanded from you on a
day to day basis.

I would like to
receive a comprehensive report from you and your doctor by
2004-08-31, in order for us to decide which path to follow
regarding
your employment with our organisation.

Kind regards

E. Odendaal

General manager
operations

[10] The
Applicant testified that it was not possible to meet the deadline for
the comprehensive report on 31 August, 2004 because
he was referred
by his Doctor in Francistown to another specialist in Gaborone for
further tests. This took from 20 August, 2004
to 17 November, 2004
when the eye examination was completed and the report was presented
to the Respondent. In the meantime the
Respondent had got impatient
and wrote a reminder to the Applicant on 13 October, 2004, marked
“Annexure 3(b)” in these terms:

Mr. Moswela

C/o Furniture
Mart Francistown

From: E.
Odendaal

Furniture Mart
Head office

2004-10-13

Dear Mr. Moswela

I refer to my
letter dated 2004-08-16 whereby I have clearly requested you to
establish your capabilities in order to perform your
duties within
our organisation with a recognised eye specialist.

It is clear that
you are not co operative with management request, which is seeing, in
a very serious light and it leaves us no alternative
to consider your
dismissal from our company, we have had no productivity from you in
the last few months hence the reason for our
proposed decision.

We will also
refer this matter to the commissioner of labour for his guidance and
recommendation.

If I do not
receive information as requested by 2004-10-20 you will be dismissed
on incapability to perform your duties.

Regards

E.Odendaal

General Manager
operations

[11] The
Medical report came on 16 November 2004 and was

as
follows:

3/12 Eye

16^th
November 2004

TO WHOM IT
MAY CONCERN

RE: MOSWELA
MOKERESETE

The above
mentioned patient was referred by Dr. Maso (He is eye specialist
working at Nyangabwe Hospital eye clinic). I agree with
the
diagnosis. The patient noticed decreased vision on both eyes for the
past 4 years from 2001. There was a history of chronic
uveitis in
both eyes. The right eye had acuity of 20/160 with intraocular lens,
the left eye 20/200 with intraocular lens. Both
eyes vitreous hazy
with fibrosis due to chronic uveitis, retina no detachment.

On 27/08/2004,
right eye treated with the YAG Laser but the vision was no improved.
So far, his vision:right 20/160, left 20/200.
On 16/11/04, eye exam
is same as above. In my opinion, the patient can fit for his job as
a Relief Manager.

Yours truly,

DR Zhen Wen

Ophthalmologist

Mr. Odendaal
acknowledged receipt of the medical report submitted by Dr. Zheng Wen
on 25 November 2004. Mr. Odendaal wrote as per
“Annexure 5”

FURNITURE
MART LIMITED

25 November 2004

Mr. Moswela
Mokeresete

C/o Francistown
Shop 2

Francistown

Dear Sir,

RE: Medical
Report

We acknowledge
receipt of the medical report submitted by Dr Zhen Wen and the
contents thereof.

I am currently
arranging for a meeting between yourself, Mr. Lebala and Myself on
the 30^th November 2004 at our head Office in Gaborone, in
order for us to resolve this issue to both parties’ satisfaction.

You will be
relieved from duty up until the 30^th of November 2004 when
you will report at Furniture Mart Head Office at 0900hrs on the 30^th
of November 2004.

Kind Regards

Eric Odendaal

General Manager
Operations

[12] The
Applicant confirmed that on 30 November, 2004 he did go for the
meeting in Gaborone. He stated that the meeting turned out
to be a
hearing when he had expected to be given proposals on early
retirement especially on how much Respondent was prepared to
pay him.
The Applicant testified that Messrs Odendaal and Lebala told him
that they had wanted him to use computers in his work
and since he
was not able to do so because of his eye sight problems they would
have to terminate his employment. The minutes of
this meeting appear
on page 6 of the Pleadings. The Applicant stated that he was unhappy
with the short notice and he asked Mr.
Odendaal to give him
sufficient time to pay off his debts before he terminated his
employment. This was not successful. The Applicant
said that he
asked Mr. Odendaal if he had done anything wrong and he received an
answer in the negative.

According to the
Applicant there was never a requirement for him to use computers in
the position of Relief Manager and he was surprised
that there was a
reference to him failing to use computers at the meeting. The
Applicant maintained this position in the very vigorous
cross
examination by Ms Chilisa for Respondent. He denied that the
Regional Manager, Mr. Mavila tried to teach him computers and
that he
refused to look into computers because this would destroy his eyes.
The Applicant also denied that his job was to relief
a Branch Manager
and maintained that his focus was on sales and training of sales
staff and he performed well in this area as he
met the performance
targets set.

[13] The
Applicant was referred to an Appraisal or Performance Evaluation Form
marked “Annexure 4” which indicated that he had
scored 57/72 or
79.2%. The Applicant denied knowledge of the appraisal and stated
that performance evaluation should normally be
done in the presence
of the appraisee but that he was not present when “Annexure 4”
was prepared and filled in. It is noteworthy
that the form does not
require an assessment on computer usage or competence.

However it
became clear during the cross examination by Ms Chilisa that some use
of the computer was required by a person doing sales.
The Applicant
referred to a computer printout referred to as the ‘day end print
out’. There was a portion on sales in this
print out which the
Applicant had to read at the end of each day. The Applicant
maintained that he did not need the assistance of
the Branch Manager
to read it.

During
questioning by the court Assessor Ms Gaithoboge the Applicant
maintained that his understanding of his new job as Relief Manager
was that he would be responsible for sales and this is the job he was
doing at the time he was dismissed.

[14] Mr.
Kebabonye Mavele was the Respondent’s Regional Manager for the
north and had responsibility for the 3 shops in Francistown.
In his
testimony he confirmed that the Applicant was reporting to him. He
stated that in the position of Relief Manager the Applicant
was
expected to relief a Manager who was absent from a branch at any
particular time. He told the court that the duties of a Relief
Manager were the same as those of Branch/Shop Managers. To enable
the court to appreciate these duties the witness explained that
to
process a Hire Purchase sale there is a history card which needs to
be filled in by the sales person. This enables the sales
person to
obtain important personal information about the customer. After this
the history card is sent to a debtor’s clerk who
will then capture
the information or data into the computer. A Credit Controller would
then go thorough the data in the computer
to check it and confirm it
through telephone calls using telephone numbers provided in the
card. The sign-off for a confirmation
is in the computer as the
Credit Controller would then forward the history card to the Branch
Manager. The history card will be
reflected in the Manager’s menu
in the computer as a pending deal. To attend to these deals the
Manager must log into the computer
with his password so that he may
authorize all pending deals and this will indicate that sales have
been completed or done in the
branch.

[15] It was the
evidence of Mr. Mavele that the Relief Manager was expected to
authorize all these deals from the sales department.
He stated that
this was part of a Relief Manager’s duties. Another duty of a
Relief Manager was for receiving stock and taking
stock when the
Branch Manager was absent. Mr. Mavele stated that all these duties
could only be performed through use of a computer
and if the
particular manager was not able to use the computer he could not
discharge them as Respondent did not do any manual operations.
All
business processes were computerized.

[16] Mr. Mavele
testified that he was aware of circumstances which led to Applicant
being redeployed to position of Relief Manager.
He confirmed that
before introduction of computers in 1999/2000 the Applicant was the
best Branch Manager in Botswana. After the
introduction of computers
the Applicant’s work suffered because he could not use computers.
The Applicant developed eye sight
problems and started using
spectacles. He stated that the Applicant had problems logging into
the computer and authorizing transactions.
It was a result of this
that he was given the job of Relief Manager. However the witness did
not agree that the Applicant was exempted
from using a computer when
he was appointed as a Relief Manager.

[17] Regarding
performance of Applicant Mr. Mavele confirmed that the Applicant was
given targets as Relief Manager and that he did
perform well on those
targets, even though he did not use computers. As confirmation of
the Applicant’s good performance Mr. Mavela
referred to the
Performance Appraisal ‘Annexure 4’ where the Applicant scored 8/8
on achievement of performance, 8/8 on ability
to work unsupervised
and was also paid a commission or bonus for good performance. He
however stated that the appraisal form did
not require him to comment
on the Applicant’s computer skills and he did not specifically make
a note of it in the appraisal as
he expected the Applicant to improve
his computer skills. The witness admitted that he never gave
Applicant any warning about deficiency
in computer skills.

The witnesses
admitted that he alone prepared and filled in the performance
Appraisal form in which the Applicant had scored 57/72
or 79.2%. It
was the witness’s testimony that he did not recommend annual
increment because the score was under 80%. The court
had some
difficulty with the reason given by Mr. Mavele based on the testimony
of Mr. Odendaal, the General Manager, Operations.
As noted below Mr.
Odendaal testified that annual increment could be given to a manager
who scored between 65% – 80% subject to
management discretion. It
was not clear why the Applicant did not merit annual increment given
his record of good performance.
The court had sympathy with Mr.
Sechele’s argument that Mr. Mavele acted arbitrarily and unfairly
against the Applicant.

[18] The last
witness for the Respondent was Mr. Odendaal, General Manager
Operations and he testified that the duties of Relief Manager
and
Branch Manager were the same for operational issues. He stated that
at the time he redeployed the Applicant to the post of Relief
Manager
he did not exempt him from any duties of Branch Manager including the
duty to use the computer. He confirmed that the Applicant
was
redeployed because of his eye sight problems. He stated that the
intention was to relief the Applicant from stress even though
his
duties remained the same as those of a Branch Manager. The witness
confirmed that the Applicant was a good performer and was
paid
commission for meeting sales targets. He stated that the Applicant
was required to focus on sales (9/10 times) in his post
as a Relief
Manager. On the annual increment he confirmed that based on
management discretion a manager who scored anything from
65%, would
be awarded annual increment. He stated that at the time the
appraisal report “Annexure 4” was prepared the Respondent
did not
require evaluation on computer competency or skills.

The court noted
that the testimony that the duties of the Relief Manager and the
Branch Manager were the same did not make sense at
all. Such
testimony calls into question the basis of the whole redeployment
exercise and the intention to relief the Applicant from
the stress of
a Branch Manager’s position.

[19] Mr.
Odendaal testified that during the meeting of 30 November, 2004 they
informed the Applicant that the Respondent could not
retain him in
employment because of his eye sight problem. When referred to the
medical report which stated that the Applicant was
fit for the job of
Relief Manager, the witness stated that he was shocked by the
Doctor’s recommendation. The witness stated that
the Doctor did
not have knowledge of the duties of a Relief Manager. He stated that
he considered the part of the Doctor’s report
which stated that
Applicant had chronic uveitis in both eyes to mean that he had an
acute eye problem and disregarded the part which
said that he was fit
to do the work of a Relief Manager. Mr. Odendaal admitted that he
was not an eye specialist but found the doctor’s
report sufficient
for a decision to dismiss the Applicant for medical or health reasons
without obtaining a second opinion. He said
he concluded that since
the eye condition of the Applicant had not improved he was not fit to
do his job. It would have made no
difference to consult another
doctor for a second opinion. He said it was the Doctor who was not
qualified to make a finding that
Applicant was fit to work as a
Relief Manager.

INCAPACITY
DUE TO ILLNESS

[20] The court
will examine the law on incapacity due to illness as the Respondent
position is that the Applicant was dismissed on
medical or health
grounds. In the context of HIV/AIDS the Industrial Court has dealt
with two cases on the subject. These are the
cases of Edison
Monare v Botswana Ash (Pty) Ltd. case No. IC 112/98 (J1052),
dated 28 April, 2004 (per De Villiers J.) and Nelson Mathodi Lemo
v Northern Air Maintenance Pty Ltd. case No. IC 166/2004
(J1157), dated 22 November, 2004 (per Dingake J). Both cases are
distinguishable from the present case in that the employers in those
cases
had to contend with long periods of absences by the employees
due to prolonged sick leave. In this case the employee’s
attendance
record was impeccable and on the evidence the employer had
very little to complain about regarding performance of the employee.

The only other
case of the Industrial court which had relevance to the factual
situation presented in this case is that of Thandi Marope v
Botswana Diamond Valuing Company Pty Ltd. case No. IC 68/97
(J235), dated 9^th October, 1998 (per De VilliersJ.).
For comparison the court will also refer to principles on dismissal
for incapacity due to illness
as enunciated by the Labour Appeal
Court in South Africa in the two cases of National Union of Mine
Workers & Another v Libanon Gold Mining Co. Ltd (1994) 15 ILJ 585
(LAC) and AECI Explosives Ltd (Zomerveld) v Mambalu (1995) 16
ILJ 1505 (LAC).

[21] Dismissal
for incapacity due to ill health requires an approach of
understanding rather than a disciplinary approach. This is
because
incapacity can be distinguished from misconduct where some degree of
‘fault’ is required on the part of the employee.
It will be a
case of misconduct rather than incapacity where an employee pretends
to be ill.

(22) In the
Thandi Marope case (supra) at page 19 of the typed
judgement the Court refers with approval to the emphatic approach
developed by the South African Industrial
Court to resolve disputes
of dismissal for incapacity. This approach has resulted in the
following test which is also referred to
on page 59 of the second
Edition of Van Niekerk’s book, Unfair Dismissal (2004
Siber Ink).

1. the
   employer is obliged to ascertain whether the employee is capable of
   performing the work for which he was employed;

2. If the
   employee is unable to perform the work, the extent to which he is
   able to perform his duties should be ascertained;

3. The
   employer is thereafter obliged to ascertain whether the employee’s
   duties can be adapted;

4. If the
   employee cannot be placed in his former position, the employer must
   ascertain whether alternative work, at a reduced salary
   if
   necessary, is available.

The above
factors are based on principles of equity and as the Industrial Court
is a Court of law and of equity it will apply these
principles in
resolving the present dispute.

(23) The
Respondent did not refer to these principles of equity in making the
decision to dismiss the Applicant. According to Mr
Eric Odendaal,
General Manager Operations of Respondent he dealt with the health
problem of the Applicant on the basis of the requirements
of the
business. There was no reference to any procedure in terms of a
code of conduct, disciplinary code and grievance procedures
which
guided the Respondent in arriving at the decision to dismiss the
Applicant. The only other documentation which the Respondent
referred to in their decision was the ophthalmologist report which
they selectively implemented. The Court will refer to this later
in
the judgment.

SUBSTANTIVE
FAIRNESS

[24] The basic
requirements for a substantively fair dismissal, which will include
dismissal because of incapacity due to ill health,
are stated in
Article 4 of ILO Convention No. 158 of 1982, which provides as
follows:

“The
employment of a worker shall not be terminated unless there is a
valid reason for such termination connected with the capacity
or conduct of the worker or based on the operational requirements of
the undertaking, establishment or service”. (underlining
provided by the court)

ILO Convention
No. 158 applies to incapacity due to ill health because of the
underlined word “capacity”.

[25] The
question to be answered in this case is whether from the medical
evidence available, the Respondent has in fact established
that the
Applicant was medically unfit to perform his work as a Relief Manager
and not as a Branch Manager. The reason for this
approach is that
the Applicant was effectively redeployed to the position of Relief
Manager as reflected above on 21 February, 2003.
Secondly, if the
Applicant was medically unfit, were all relevant alternative vacant
posts offered to the Applicant.

[26] Mr. Sechele
for the Applicant has urged the court to hold that on the contrary
the medical evidence has established that Applicant
was fit to
perform the work of Relief Manager. It is Mr. Sechele’s contention
that based on the medical report by the Ophthalmologist
Dr. Zhen Wen
there was no basis for the Respondent to decide that the Applicant
was medically unfit. Notwithstanding the report
by the Doctor the
Respondent found that the Applicant was medically unfit and dismissed
him. According to Mr. Sechele the requirement
for a medical
examination and a medical report by the Respondent had created a
legitimate expectation that the report would be considered
in
arriving at the decision on whether the Applicant was medically fit
or not. Mr. Sechele went on further to submit that if at
all the
Respondent had difficulty in accepting the report and the finding
therein he ought to have sought a second opinion on the
state of
health and capacity or incapacity of the Applicant.

[27] Ms Chilisa
for Respondent maintains that the Respondent did take account of the
report and was influenced by it in taking the
decision to dismiss the
Applicant. In this respect the court reminded itself that a decision
to dismiss in such cases is not a medical
question. It is a decision
to be taken in the light of available medical evidence and opinion.
Although a negative inference may
be drawn from an employee’s
refusal to undergo a medical examination an employer may not compel
an employee to undergo such an
examination. The question in this
case is whether an employer is entitled to decide against medical
opinion and substitute it for
his own.

[28] Case law
review will assist in answering the above question. In the Thandi
Marope case (supra) the Applicant was dismissed because
the employer decided that she was medically unfit to carry on the
duties of a diamond sorter.
The medical report and opinion stated
that her backache was such that she could not continue working as a
diamond sorter. The Doctors
supported her transfer to the Security
department on the basis that it was lighter and would not put her
health at risk.

In the National
Union of Mine workers case (supra) the employee’s duties
required him to work underground from time to time. He was certified
by the employer’s medical advisor/doctor
to be unfit for
underground work. It was the employer’s policy that once an
employee was found to be unfit, his services would
be terminated
unless a surface post was available. As there were no vacant surface
posts, the employee’s services were terminated.

In AECI
Explosives Ltd (supra) the employee was dismissed for
unsatisfactory time keeping in terms of the employer’s disciplinary
code because of his frequent
absences through illness. The Labour
Appeal court found that the employer had adopted an ambivalent
attitude towards the employee’s
conduct. On the one hand, by
relying on its rule relating to time keeping, the employer seemed to
accept that the employee was genuinely
ill. On the other hand, by
describing the employee’s conduct as ‘abuse of sick leave’,
it was implying that the employee was malingering. In the former
case, the grounds for dismissal would be incapacity, while in
the
latter case, the grounds for dismissal would be misconduct.

The court in the
AECI Explosives Ltd. (supra) found that the employer,
having accepted the authenticity of the medical certificates was
entitled to rely only on incapacity.

[29] In all the
above cases the employer, being an unqualified person on medical or
health issues relied on the expert opinion of
the doctors. The court
agrees with Mr. Sechele that the Respondent in this case was not
entitled to go against the medical opinion
available and to decide on
its own and without further expert input that the Applicant was
medically unfit and therefore liable to
be dismissed. The court is
fortified in this finding by the undisputed evidence that the
Applicant was very productive as a Relief
Manager focusing 9/10 times
on sales and achieving set targets to an extent that he merited to be
paid performance bonus or commission.
All the witnesses testified to
this aspect.

[30] The court
therefore finds that the Respondent had no valid reason to terminate
the Applicant’s employment on the basis of incapacity
and therefore
such termination of employment was substantively unfair.

PROCEDURAL
FAIRNESS

[31] Procedural
fairness relates to the procedure followed by an employer before
dismissing an employee. The basic requirements for
a procedurally
fair dismissal are set out in Article 7 of ILO Convention No. 158 of
1982 as follows:

“The
employment of a worker shall not be terminated for reasons related to
the workers conduct or performance before he is
provided with an opportunity to defend himself against the
allegations made, unless the employer cannot reasonably be
expected
to provide the opportunity.” (Underlining is provided by the
Court)

In
order to determine whether there is a valid reason for dismissing an
employee, a fair procedure must be followed by the employer
before
dismissing the employee.

[32] On
the basis of authority it was not necessary for the Respondent to
have held a disciplinary enquiry in this particular case,
as the
Applicant was not guilty of any misconduct. It is consultation and
counselling that are required in cases of dismissal for
incapacity.

In
the National Union of Mine workers case ((supra) the
court per Nugent J. found that it did not follow that once it is
established that an employee cannot perform at the required
level in
his particular position there is no duty on the employer to keep him
and that his dismissal will be fair. While an employer
may not be
obliged to retain an employee who is not productive, fairness
requires that a proper assessment be made of whether that
situation
has been reached before the employer resorts to dismissal. The court
stated that a fair employer will ensure that the
employee, assisted
if needs be by his trade union, will be kept informed and will be
properly consulted in the course of making that
assessment. It also
held that it would not be fair to dismiss an employee without first
exhausting the possible alternatives, which
depend on the facts of
each case, in consultation with the employee and his union if this is
required. The court said that observance
of a fair process was
fundamental to the question whether its decision to do so was fair
and that the fairness or otherwise of the
decision cannot be divorced
from the process by which it was arrived at. This court agrees with
the above approach.

At
page 591 of the judgment, Nugent J. also says the following:

‘Precisely
what is required by the concept of consultation in any particular
case will clearly depend upon the facts. In my view what
was
required in the present case was at least a full explanation to the
appellant of why it was that what had been accepted for
the past two
years could no longer be accepted; and a proper discussion with the
appellant, his supervisor and if required his union,
as to whether
and to what extent his post could be adapted and the extent to which
he could be fitted into the workforce in another
capacity either then
or in the future. In my view such discussion as took place with the
Appellant fell far short of this.”

[33] The
court has reviewed the procedure followed by the Respondent in
dismissing the Applicant in this matter. The minutes of the
meeting
of 30 November, 2004 which appear on page 6 of the pleadings confirm
that the consultation which took place fell short of
the required
standard. The Respondent had redeployed the Applicant to the
position of Relief Manager by letter of 21^st February 2003
because of the eye sight problem. The Applicant had therefore worked
in this post which focused more on sales for
more than 20 months.
During this period his performance was good and he was therefore
productive. It is not clear what the Respondent’s
General Manager
means when he says in the minutes of 30 November 2004 that ‘MM’s
performance is basically nil at the branch’.
This is not
supported by the evidence.

From
the evidence the Applicant was already a productive member of the
workforce of Respondent in his position of Relief Manager.
The
Respondent needed to explain to the Applicant how he was failing in
his post of Relief Manager despite achievement of targets
set and
bonus payments received. The court heard no evidence on this apart
from some reference to the Applicant’s inability to
use computers.
On the evidence this handicap, if indeed that is what it was, did not
prevent the Applicant from reaching the sales
targets set for him.

The
Doctor’s report stated that the Applicant was medically fit to work
as a Relief Manager. Fair procedure demanded that the Respondent
should explain to the Applicant why it was disregarding this
assessment of the Doctor after the Applicant was asked to seek expert
assessment. The court finds that it was reasonable for the Applicant
to expect that the Doctor’s opinion would be given the weight
it
deserved or else that the Respondent would explain to him why he was
not relying on it.

[34] The
court therefore finds that the dismissal of the Applicant was also
procedurally unfair.

[35] In
the peculiar circumstances of this case, the members of the court are
agreed that an appropriate award of compensation would
be
compensation equal to 4 months wages. The amount so to be awarded to
the Applicant is compensation and not salary. The full
amount,
without deductions must be paid to the Applicant.

It
was common cause that the Applicant’s basic salary at the time of
dismissal was P4,840.00 per month. He is therefore entitled
to compensation in the sum of P19,360.00(P4840.00 x 4).

DETERMINATION

[36] The Court
consequently makes the following determination:

1. The
termination of the contract of employment of the Applicant,
Mokeresete Moswela, by the Respondent on 30 November 2004, was
both
substantively and procedurally unfair.

2. In terms of
Section 24(1) of the Trade Disputes Act, the Respondent is hereby
directed to pay to the Applicant the amount of P19,360.00
being compensation.

3. The
Respondent is hereby further directed to pay the said amount of
P19,360.00 to the Applicant through the office of the
Registrar of this court, on or before Friday 26 May, 2006.

4. No order is
made as to costs.

DATED AT
GABORONE THIS DAY OF MAY, 2006

………………..………………………….

G. L.
TEBOGO-MARUPING

INDUSTRIAL
COURT JUDGE

We agree on the
facts.

……………………………………………………

L. MATSHEKA

NOMINATED
MEMBER (BOCCIM)

………………………………………………….

B. N.
GAITHOBOGE

NOMINATED
MEMBER (UNION)

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