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IN THE
INDUSTRIAL COURT OF BOTSWANA

HELD AT
GABORONE

 
CASE NO. IC. 437/2004

IN
THE DISPUTE BETWEEN

 

PATIENCE
RAPOO ………………………. APPLICANT

AND

 

METROPOLITAN
BOTSWANA (PTY) LTD ………………………. RESPONDENT

—————————————————————————————————-

CONSTITUTION
OF THE COURT

D.
J. de VILLIERS INDUSTRIAL COURT JUDGE

P.
D. CHENGETA NOMINATED MEMBER (UNION)

B.
O. TSHEKO NOMINATED MEMBER (BOCCIM)

FOR
THE APPLICANT:

MR
F. NGANDU OF SHIRIPINDA & COMPANY

GABORONE

FOR
THE RESPONDENT

MR
G. W. BECK GROUP INDUSTRIAL RELATIONS

MANAGER
OF RESPONDENT COMPANY

PLACE
AND DATE OF PROCEEDINGS

GABORONE 6
DECEMBER 2005

Rest
days – employer cannot require employees to work on their rest days
– can only request them to do so – employee’s choice
to comply
with request or not. Charge of dishonesty – serious misconduct –
it is for employer to prove that employee acted with
intent to
deceive.

JUDGMENT

Introduction

[1] Mr. Ngandu,
for the applicant, informed the court that the applicant is not
challenging the fairness of the disciplinary enquiry.
She accepts
that the dismissal was procedurally fair except that the chairman
came to the wrong conclusion.

Applicant’s
evidence

[2] The applicant
was the only person to testify in her case. She called no other
witnesses. She testified that she started working
for the respondent
on 22 February 1999. When this dispute arose in June 2004 she was
the administration supervisor and as such she
was part of management.

[3] On 1 June 2004
the applicant and all other members of staff received the following
e-mail from the managing director’s personal
assistant. “You’re
all invited to the above mentioned session. The session will be held
at Mokolodi Game Reserve on the said
dates.” The session was a
strategic planning session for the next 5 years and it was held on
Friday, 25 June 2004, Saturday, 26 June 2004 and Sunday,
27 June 2004.

[4] The applicant
attended the first day of this session on the Friday. She also went
there on Saturday morning although she was
not feeling well. She had
pains in the chest. During the morning tea break, she informed the
financial manager, mr. Mpofu about
these pains in her chest that was
not getting better. He then told her that she must go home or go and
see a doctor. One of the
staff members drove her home.

[5] As these pains
were still not getting better, she asked her boyfriend to drive her
to the Julia Molefe Clinic at Block 9, Gaborone.
There a nurse
attended to her and gave her some medication and a certificate that
she had attended there on that Saturday. The
nurse told her to come
again for a check up after a few days. She returned home and lay
down for a few hours. She had heard of
a good doctor at Letlhakeng
so towards evening that same day she asked her boyfriend to drive her
there to see if she could find
this doctor. She wanted to speak to
him about her health in general as she is a sickly person and also to
speak to him about these
pains in her chest.

[6] After driving
around and making enquiries there, they eventually found this doctor.
He attended to her and they left there at
about 22:00 the Saturday
evening to return home. The applicant said that the pain in her
chest was getting worse so she took some
of the tablets she had been
given at the clinic. This was just before they reached Molepolole.
She became drowsy and fell asleep
in the car. She said she slept the
whole night in the car and was woken up the next morning at about
06:00 by Bagaretsi Lasarwe,
who was her junior at work and he was
also at this planning session with her. He woke her up by knocking
on the car window. She
then noticed that her boyfriend’s car was
parked infront of the Chez Ntemba nightclub in Mogoditshane. She
asked Lasarwe where
her boyfriend was and he said that he was in the
night club and said he would go and call him.

[7] She said that
when her boyfriend came out she asked him to take her home as she was
not feeling too well. On their way home her
boyfriend stopped at
Barcelos, a 24 hour food outlet to buy something to eat. She also
had something to eat there. They then went
straight home where they
arrived at about 08:00. As she was not feeling well she did not go
back to this planning session. She
stayed at home the whole Sunday.

[8] On Monday
morning, 28 June 2004, she was still feeling ill and did not feel fit
for work. She therefore went and saw a private
doctor on that Monday
morning. After examining her, he booked her off work for 3 days,
from that Monday to Wednesday, 30 June 2004.
He gave her a medical
certificate to that effect, which her boyfriend handed to management
on that very same Monday.

[9] The applicant
felt a bit better on Wednesday, 30 June 2004, and although she was
still booked off ill for that day, she nevertheless
went back to work
on that Wednesday. On arrival at work she found an envelope on her
desk, containing a notice to attend a disciplinary
enquiry on 5 July
2004. The charges against the applicant are set out as follows in
this notice:

“The purpose
of the enquiry is to investigate the following complaint(s) against
you:

1. Dishonesty in
   course of employment by requesting time off from the company’s
   strategic planning session due to illness on Saturday,
   26^th
   June 2004 and later being seen at a night club in the early hours of
   Sunday morning, 27 June 2004

2. Absence from
   work on Sunday, 27 June 2004 and failing to communicate lack of
   attendance for the Strategic Planning session.”

[10] The applicant
was found guilty at the disciplinary enquiry on both the aforesaid
charges and was summarily dismissed. She then
appealed to the
managing director, who confirmed the convictions on both the
aforesaid charges, but found that the summary dismissal
of the
applicant was unfair. He amended it to dismissal on notice and that
the applicant should be paid one month’s notice pay
in lieu of
notice.

[11] The applicant
said that she is no longer interested in reinstatement as she managed
to secure other employment as from January
2005. She said that her
said dismissal, even on notice, was unfair for which she now wants to
be paid compensation. She said this
is her only claim, as she has
been paid all her other entitlements.

[12] Before
dealing with further evidence of the applicant and with the evidence
of the respondent’s financial manager and the evidence
of one other
defence witness, the court will first set out general principles of
law and equity relevant to a fair dismissal, and
in particular as
regards the two charges with which the applicant had been charged.
The aforesaid further evidence will be dealt
with under the headings
of these two charges.

Substantive
fairness

[13] Substantive
fairness relates to the reason for terminating an employee’s
contract of employment. An employer can only terminate
an employee’s
contract of employment without notice or with notice or by paying him
notice pay in lieu of notice, if he has a valid
reason for such
termination.

[14] In terms of
section 26 (1) of the Employment Act, an employer may dismiss an
employee without notice, where the employee is guilty
of serious
misconduct in the course of his/her employment. What is deemed to be
“serious misconduct” is set out in section 26(4). The court
finds that this is not an exhaustive list and that there can
therefore be many more acts,
not mentioned here, that could be
classified as serious misconduct. In terms of section 26 (4) (d)
willful dishonesty against the
employer, another employee or a
customer or client of the employer, will constitute serious
misconduct.

[15] In terms of
section 18(1) of the Employment Act (Cap. 47:01) either party can
terminate a contract of employment by giving the
other party the
prescribed notice or by paying him notice pay in lieu of notice in
terms of section 19 (a) of the said Act, if there
is a valid reason
for such termination. In this case the applicant was dismissed by
paying her one month’s notice pay in lieu
of notice.

[16] The said
sections therefore provide that an employer may dismiss an employee
on notice if he is guilty of misconduct and may
dismiss him without
notice if he is guilty of serious misconduct. The employee need not
necessarily be dismissed summarily for serious
misconduct. The
employer can dismiss him on notice or pay him notice pay in lieu of
notice or he can be given a written warning
or final written warning,
etc.

[17] Although the
Employment Act does not prescribe any procedure which an employer
should follow before dismissing an employee for
misconduct, the rules
of natural justice nevertheless dictate that there must be a valid
reason for such dismissal. To establish
whether there is a valid
reason, it is necessary to hold a proper disciplinary enquiry prior
to dismissal.

[18] These rules
of natural justice, or rules of equity as they are sometimes called,
are derived from conventions and recommendations
of the International
Labour Organisation (ILO), which conventions and recommendations this
court, also being a court of equity, applies
when determining trade
disputes. These conventions and recommendations are international
labour standards. The basic requirements
for a fair dismissal are
set out in article 4 of ILO Convention no.158 of 1982. Article 4
reads 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”. (Court’s underlining).

[19] This article
4 is then also the origin of the equitable requirement that an
employee can only be dismissed if the employer has
a valid reason for
doing so.

[20] As to
dishonesty. Le Roux and Van Niekerk, The South African Law of
Dismissal (1994) state the following at page 131:

“Any form of
dishonest conduct comprises the necessary relationship of trust
between employer and employee and will generally warrant
dismissal
Dishonest conduct by definition implies an element of intent.
It is necessary, therefore, to demonstrate some deception on the part
of the employee which may assume a positive form, for example
by
making a false statement or representation, or a negative form, for
example by failing to disclose an interest in a corporate
entity with
which the employer does business.” (The court’s underlining)

[21] John Grogan,
Workplace Law, seventh edition, states at page 154:

“Dishonesty
in the employment context can take various forms, including theft,
fraud and other forms of devious conduct.”

Andre van Niekerk,
Unfair Dismissal, second edition, states at page 43:

“Dishonesty

Dishonesty
manifests itself in a number of forms, including providing false
information, non-disclosure of information, pilfering,
theft, and
fraud. The fiduciary duty owed by an employee to the employer
generally renders any dishonest conduct a material breach
of the
employment contract, justifying summary dismissal.

The labour
Appeal court established under the 1956 LRA adopted the view that
what was at issue in cases of dishonesty was whether
a continued
employment relationship was intolerable. On this basis the court
upheld the employer’s decision to dismiss a waiter
who had stolen a
can of cool drink from a restaurant.

…………………………………………

Dishonest
conduct is not limited to conduct that enriches the employee at the
expense of the employer. Misrepresentation of a qualification,
for
example, is an act of dishonesty and has been treated by the courts
on the basis of the principles outlined above.”

[22] John Grogan,
Dismissal, states at page 116:

“’Dishonesty’
is a generic term embracing all forms of conduct involving deception
on the part of employees. In criminal law, a person
cannot be
convicted of dishonest conduct unless that conduct amounts to a
recognized offence. However, in employment law, a premium
is placed
on honesty because conduct involving moral turpitude by employees
damages the trust relationship on which the contract
is founded. The
dishonest conduct of employees need not therefore amount to a
criminal offence. It can consist of any act or omission
which an
employer is morally entitled to expect an employee to perform or not
to perform. This may include withholding information
from the
employer, making a false statement or misrepresentation with the
intention of deceiving the employer.

………………………………………..

A charge of
dishonesty requires proof that the person acted with intent to
deceive.”(The court’s underlining)

The court finds
that the onus of proving such intention to deceive rests on the
employer because it is not for an employee to prove
his innocence,
but for an employer to prove his guilt. This is in line with the
equitable principle set out in paragraph 2 (a) of
article 9 of ILO
Convention no. 158 of 1982, which provides as follows:

“2. In order
for the worker not to have to bear alone the burden of proving that
the termination was not justified, the methods
of implementation
referred to in Article 1 of this Convention shall provide for one or
the other or both of the following possibilities:

1. the burden of
   proving the existence of a valid reason for the termination as
   defined in Article 4 of this convention shall rest
   on the employer;

2. ………………………..”

[23] From the
wording of the first charge of dishonesty against the applicant, as
set out in the said notice to attend a disciplinary
enquiry, it is
clear that the respondent’s case is that the applicant’s
deception assumed a positive form, in that on Saturday,
26 June 2004,
she made a false statement or representation to the financial manager
that she was sick in order to get the day off
so that she and her
boyfriend could go to the nightclub.

[24] This is also
obvious from the following extracts from the chairman’s written
verdict at the disciplinary enquiry:

“There is
sufficient proof that after Ms. Rapoo was released by her manager
after presenting herself as sick; she was seen at a nightclub
the
morning of the next day.

…………………………………………..

Given the fact
that she was returned from the Strategic Planning Session during the
day to go and see a doctor, it raises questions
as to the sudden
improvement of her condition to such an extent that she could be fit
to go and dance at a nightclub in the winter
cold just in a few
hours. The fact that she is said to have been seen dancing at a
nightclub makes one wonder if she was really
sick on Saturday during
the day. Ms Rapoo mentioned that she had gone to seek medical
attention at Julia Molefe Clinic, but she
did not mention the
clinic authorities giving her sick leave, this alone suggests that
she was fit to go back to work, possibly that afternoon and
or the
following day, but she did none of those.

It goes without
saying that since she was neither given sick off by the clinic
authorities nor authorised to be off duty by the employer
(unless for
those hours that she may see the doctor), she was unauthorised to
stay away.

After spending
the night at a nightclub, Ms Rapoo did not report for work the whole
day on 27^th (Sunday). There is no valid
reason that she gave for not attending the Strategic Planning Session
that day. Once more it should
be noted that she was not booked off
sick nor was she on authorised day off.

The fact that
Ms Rapoo had possibly spent Saturday night in a nightclub suggests
that she was fit to go for the Strategic Planning
Session on Sunday
morning (27^th). There is no doubt in my
mind that she was fit and well able to attend the Strategic Planning
Session that day.”

[25] The
chairperson ended off his findings as follows:

“Having
carefully analysed the above, I therefore find Ms. Rapoo guilty of
both charges and as a result issuing dismissal as a suited
disciplinary action for both charges.

When giving the
above disciplinary action I considered the following:

1. The fact that
   you deceived your employer into believing that you are sick only to
   entertain your personal interest, instead of being
   a part of a
   Strategic Planning Session that was meant to shape the future of the
   organization.

2. You have not
   just breached the trust that your employer has on you, but you have
   also breached the trust of your subordinates and
   such a thing has a
   likely effect of being counter-productive.

3. Your behavior
   is likely to set in motion an avalanche of like behaviours, which
   could prove difficult for the company to control.

4. Most
   importantly I have also taken into account the mitigating factor
   that you advanced being that it was your first time to commit
   an
   offence of such nature and magnitude.

In all fairness
I have found the factors against you outweighing both your defence
and your mitigation.”

[26] The court
finds that the chairman’s aforesaid findings are riddled with
assumptions. He just assumed and speculated that the
applicant was
not sick on that Saturday and that she deceived the financial manager
to give her off by pretending that she was sick.
Yet in his evidence
at court the financial manager said that when he gave her off, “she
did look ill to me.” The chairman had
just one thing in mind and
that is that the applicant must have been feigning illness just
because she was seen at a nightclub on
Sunday morning. For the
nightclub episode, he was relying on and totally accepted the
evidence of two of the applicant’s subordinates,
who said they saw
her in the nightclub, despite numerous discrepancies in their
evidence, with which he did not even deal. When
these contradictions
were pointed out to the chairman of the appeal hearing, all he said
was that the argument on contradictions
does not hold water.

[27] Only one of
these two witnesses gave evidence at court, namely Collin Otsile.
Lasarwe did not give evidence and the court was
also not told why he
was not called. All the evidence he gave at the disciplinary hearing
is not evidence before this court. The
court will only accept those
portions of his evidence where he corroborates the applicant. The
reason for this is because the other
evidence of Lasarwe has not been
tested under cross-examination in this court. The applicant denies
that she was ever in the nightclub
and stated that she slept in the
car the whole night. She said on Sunday morning at about 06:00
Lasarwe woke her up by knocking
on the car window. Lasarwe confirmed
this last portion at the disciplinary hearing and this is the only
evidence of his that the
court accepts.

[28] The court
found the evidence of Collin Otsile useless and unreliable and places
no evidential value thereon. He changed his
evidence as to when he
arrived at this nightclub and when he left and also as to where he
had been before coming to the nightclub.

[29] This court
therefore has no rebutting evidence to rebut the applicant’s
evidence. The respondent cannot dispute that;

(a) in the light
of the financial manager’s evidence, the applicant was in fact ill
when she reported her illness to him that Saturday
morning;

(b) that she did
attend the Julia Molefe Clinic that same Saturday;

(c) that she went
and saw another doctor that same day at Letlhakeng;

(d) that she was
still feeling ill on Sunday morning and did not feel fit to attend
the strategic planning session and remained at
home the whole Sunday
from 08:00;

(e) that she was
still feeling ill on Monday and Tuesday and that she went and saw a
doctor on Monday morning who found her unfit
for work and booked her
off sick for Monday, Tuesday and Wednesday;

(f) that she was,
generally speaking, a sickly person as she had already exceeded all
her sick leave days, which was common cause.

[30] The court
finds that the respondent has accepted that the applicant was still
ill on Monday and Tuesday. The medical certificate
handed to
respondent on that Monday stated so and the respondent must have
accepted it because it never charged the applicant for
being absent
without authorisation on that Monday and Tuesday. She was only
charged for being absent without authorisation on that
Sunday. The
court therefore finds that the applicant was in fact also ill on that
Sunday. There is her undisputed evidence to that
effect and as she
was sick on Saturday, Monday, Tuesday, the probabilities favour her
version that she must have been sick on Sunday
as well. In any case
it was for the respondent to prove that she was not sick on that
Sunday and that she feigned her illness with
the intention to deceive
the financial manager in granting her time off. The court finds that
the respondent failed hopelessly in
proving this and finds that the
applicant is not guilty of dishonesty and should never have been
found guilty of dishonesty at the
disciplinary hearing.

Absence from
work without consent

[31] On the second
charge the applicant was charged with “Absent from work on Sunday,
27 June 2004 and failing to communicate lack
of attendance for the
Strategic Planning Session.” It was common cause that the
respondent’s staff members worked only 5 days
a week and that
Saturdays and Sundays were therefore their rest days.

[32] The financial
manager agreed that Saturdays and Sundays were rest days for the
staff. He said because management had arranged
for this strategic
planning session, “all staff had to be there for that weekend.”
Later on in his evidence he said, “it was
compulsory for all staff
to attend this session that weekend.” In reply to a question he
said that “if a member of staff does
not come to work on a rest day
when told to do so, we take normal disciplinary action against him.”

[33] The court
finds that there is absolutely no merit in any of the aforesaid three
statements. In terms of sections 93(1) of the
Employment Act
(Cap.47:01) it is compulsory for an employer to grant to every
employee at least one rest day in a week, comprising
at least 24
consecutive hours. This section does not prevent an employer from
giving his employees more than one rest day in a week.
The court
finds that no employer can instruct, direct or require an employee to
work on his rest day or rest days, except only in
circumstances set
out in section 95(2) of the said Act. The court further finds that
an employee can therefore, subject to section
95(2), only be
requested to work on his rest day. It is his decision to comply with
such request or to refuse to work on his rest
day. The said section
95(2), regarding compulsory work on a rest day provides as follows:

“(2) An
employee may be required by his employer to exceed the limit of hours
prescribed by subsection (1) or to work during a rest
period
prescribed by section 93 in the case of –

1. an accident,
   actual or threatened;

2. work, the
   performance of which is essential to the life of the community;

3. work essential
   for national defence or security;

4. urgent work
   to be done to machinery or plant;

5. an
   interruption of work which was not reasonably possible to foresee;
   or

6. work to be
   performed by employees in any industrial undertaking considered by
   the Minister to be vital to the economy of Botswana
   or in any
   service declared by the Minister, by order published in the Gazette,
   to be an essential service for the purposes of this
   part:”

The court finds
that attending a strategic planning session does not fall under any
of the aforesaid exception and that no member
of staff could
therefore have been required to attend this session on Saturday and
Sunday.

[34] During
cross-examination, the finance manager changed his tune by saying
that the staff were not required to attend this session
on their rest
days; they were invited to attend, as appears from the aforementioned
e-mail. He said no-one declined this invitation
and further stated
that if you do however come to this session then it signifies that
you have agreed to work on your rest days and
to attend this session
to the end.

[35] Mr. Ngandu,
for the applicant, submitted that the financial manager has highly
inflated the importance of the applicant’s absence
at this session,
during his evidence-in-chief. Mr. Ngandu said it was however watered
down considerably from the following replies
given under
cross-examination. “What was the effect of her absence at this
session? – We did not have her input”.

“So the absence
of one person could cause problems? – Yes, especially where she is
part of management.”

“I put it to you
that her absence made no difference? – We all had to put our heads
together. She was very close to the top management.
I will say her
absence did not have a visible effect.”

[36] Mr. Ngandu
further submitted that the applicant was entitled to rest on her rest
days and could not have been instructed to work
on her rest days. In
response to the financial manager’s evidence that if an employee
decided to attend this session it signifies
that he/she has agreed to
attend the session to the end on his/her rest days, Mr. Ngandu
submitted that the respondent could in this
regard, have had only one
complaint against the applicant that she promised to attend this
session but failed to attend to the end.
She attended this session
on Friday and on Saturday morning till tea break. She was then,
through unforeseen circumstances beyond
her control, prevented from
attending any further.

[37] Mr. Ngandu
further submitted that it is irrelevant whether she had a sick note
for Sunday or not, because it was her rest day,
so it was her
decision whether she wanted to attend the session on Sunday or not.
As it was not a normal working day she needed
no-one’s permission
to be absent on Sunday nor was it necessary for her to notify anyone
that she was not coming on Sunday.

[38] The court
does not agree with this last submission of Mr. Ngandu. The court
agrees with the financial manager that by coming
to this session on
Friday and on Saturday morning the applicant signified her
willingness to work on her rest days. The court therefore
finds that
the said Saturday and Sunday should therefore be treated as normal
working days for the purpose of this determination
and the court will
therefore look to local legislation for guidance on absence from work
without prior consent.

[39] As to absence
from work, the Employment Act has general and special enactments to
provide for such eventualities. The first
of such provisions is to
be found in subsection 21 (2) of the said Act, which provides as
follows:

“(2) The
employee shall be deemed to be in breach of a contract of employment
if he is absent from work without the prior consent
of his employer
or his employer’s representative unless he has reasonable cause for
such absence and, as soon as it is reasonable
practicable to do so,
informs his employer or his employer’s representative of that
cause.”

This is a general
enactment and provides for as to what will happen if an employee is
absent from work without the prior consent of
his employer. It is a
general enactment because it will apply to any absence from work for
whatever reason.

[40] The second of
such provisions is to be found in subsection 100 (2) of the said Act,
which deals specifically with the absence
from work by an employee on
the grounds of sickness. It is therefore a special enactment.

[41] The third of
such provisions is to be found in section 113 of the said Act, which
deals with the absence from work by a female
employee because of her
pregnancy. This is therefore also a special enactment as to absence
from work.

[42] This third
provision is not applicable in this case as the applicant was not
pregnant at that time. The first general and/or
the second special
provision could be applicable, but in a case like this, which one
should be applied? This is therefore now a
matter of interpretation
of statutes. When interpreting statutes there are certain well
established external aids to statutory interpretation.
There are
inter alia several presumptions.

[43] Lourens du
Plessis, The Interpretation of Statutes, refers to one such
presumption that “an enactment applies to general and
not
particular instances” and states at page 64:

“The presumption
can also be formulated more positively, to wit that generally framed
provisions are presumed to apply to more usual
instances while
special and exceptional provisions are presumed to apply to
comparatively rare instances. This avenue has, however,
not been
fully explored in South African case law. Were
it to be recognized, the presumption could then also be understood to
be aimed at equitable accommodation
to the peculiarities of each concrete situation to which the
provisions of a statute stand to be applied, irrespective of whether
such a situation is more usual or comparatively rare.” (The court’s
underlining)

[44] Referring to
the above underlined words, “equitable accommodation” of the said
presumption, the court, also being a court
of equity, finds that in
labour law a general enactment will apply to any relevant instance
whatsoever. If there is also a special
enactment dealing with a
special instance which is in conflict with the general enactment, the
court finds that in such a case the
special enactment will apply to
that specific instance. If there is no conflict between the general
enactment and the special enactment,
the court finds that the
provisions of both enactments could be invoked.

[45] The court has
already found that the applicant was in fact still sick on that
Sunday. As she was charged with being absent from
work on that
Sunday, the court finds that the provisions of the aforesaid
subsection 100 (2) of the Employment Act, being a special
enactment,
should first and foremost be invoked. If necessary the court will
also invoke the provisions of the general enactment,
being subsection
21 (2), if the court finds that the applicant had no reasonable cause
for the absence on Sunday. She will then
be deemed to be in breach
of her contract of employment.

[46] Subsection
100 (2) provides as follows:

“(2) Any
employee who absents himself from his place of employment on the
grounds of sickness shall –

1. inform his
   employer of his absence as soon as it is reasonably practical to do
   so; and

2. where he is
   absent from his place of employment for 24 hours or more, provide
   his employer, upon his return to his place of employment,
   with a
   certificate signed by a medical officer or with other evidence to
   the employer’s satisfaction accounting for the entire
   period of
   absence.”

[47] On a proper
construction of the aforesaid subsection 100(2) (a), it is clear
that, when an employee absents himself from his
place of employment
on the grounds of sickness, he need only inform his employer of his
absence when such absence was without prior
consent of his employer.
The court finds that if he did have the prior consent of his employer
to be absent on the grounds of sickness,
there will be no need for
him to inform his employer of his absence as soon as it is reasonably
practicable to do so, because the
employer would be aware of the
reason for his absence.

[48] In this case
can it be said that the applicant had the respondent’s consent to
be absent from the strategic planning session
on Sunday as well? The
chairman of the disciplinary enquiry found that she had no prior
consent to stay away on the Sunday. His
finding on this aspect was
as follows: “it goes without saying that since she was neither
given sick off by the clinic authorities
nor authorized to be off
duty by the employer (unless for those hours that she may see the
doctor), she was unauthorized to stay
away.”

[49] On what the
chairman based his finding that the applicant was only given
permission on that Saturday to be absent “for those
hours that she
may see the doctor”, no-one will know. At the disciplinary enquiry
the financial manager stated as follows, as
appears from the minutes
of the enquiry: “Mr. Mpofu reported that it was on Saturday 26^th
that Ms. Rapoo appeared very sick and by tea break (around 10h00) she
indeed confirmed that she had chest pains. Mr. Mpofu gave
Ms. Rapoo
the permission to go and seek medical help.” At the court hearing
he said he told the applicant to go and seek medical
attention.
Later on in his evidence he stated: “I told her to go and see a
doctor and get medical attention.”

[50] Nowhere is it
recorded that he told her that he is only giving her a few hours off
to see a doctor and that she must then return
immediately to the
session. It is not surprising that he did not say it, because it
would have been nonsensical and impractical.
He did not know what
the nurse at the clinic or the doctor at Letlhakeng was going to say
or what medication they may give the applicant.
The applicant’s
undisputed evidence was that she was told to take the medication from
the clinic and rest. She said when she
took it, it made her drowsy.
She lay down at home on Saturday, she slept in the car on Saturday
night and she lay down again at
home on Sunday.

[51] In the
circumstances the court finds that the consent to be absent from the
strategic planning session, given to the applicant
by the financial
manager, was an open ended consent. It was not timewise restricted
in any way. It all depended on the outcome
of the medical
consultations, the applicant’s reaction to the medication and how
she felt thereafter.

[52] The court
therefore finds that the applicant did have prior consent to absent
herself from the strategic planning session, which
consent also
covered, in the aforesaid circumstances, being absent on that Sunday.
The court consequently finds that there was therefore
no need for
the applicant to inform the respondent, in terms of the said
subsection 100 (2) (a) of her absence on Sunday.

[53] In view of
the aforesaid finding, the court finds that the applicant has shown
reasonable cause for her absence on that Sunday.
It is therefore not
necessary for the court to invoke the provisions of the general
enactment as found in subsection 21 (2) of the
said Act.

[54] As
subsections 100 (2) (a) and 100 (2) (b) are joined with the word
“and”, the court finds that both these subsections, if
applicable, have to be complied with. The second charge with which
the applicant was charged, actually consists of 2 charges. Firstly
she was charged under the second charge with being absent from work
on Sunday, 27 June 2004 and secondly she was charged with “failing
to communicate lack of attendance for the Strategic Planning
Session.” Regarding the first part of being absent on that Sunday,
the court has already found that the applicant did have prior consent
to be absent on Sunday as well. The court has also already
found
that there was therefore no need for the applicant to inform the
respondent or communicate to the respondent her absence on
that
Sunday.

[55] If it had not
been for the aforesaid legislation on absence from work, this would
have been the end of this enquiry into the
charges with which the
applicant was charged. The provisions of subsection 100 (2) are
however imperative because of the use of
the word “shall”, which
means that the applicant must comply with such provisions, if
applicable.

[56] It was common
cause:

1. that the
   applicant did not notify the respondent that she would be absent
   from work on that Sunday;

2. that on that
   Sunday she was absent from work for more than 24 hours;

3. that she did not
   have a medical certificate and therefore could not and did not
   provide the respondent with a medical certificate
   accounting for her
   absence on that Sunday.

In the
circumstances the court finds that all the applicant was guilty of
was contravening the provisions of subsection 100 (2) (b).

[57] The court
finds that the said contravention of subsection 100 (2) (b) is a
minor offence, compared to the major offence of dishonesty
and being
absent without leave. The court has found that the respondent has
failed to prove both these major offences against the
applicant. The
court finds that being guilty only of the said minor offence does not
warrant dismissal. For this minor offence
the respondent should have
given the applicant a written warning or at the most final written
warning. In the circumstance the court
finds that the applicant’s
dismissal was substantively unfair.

Procedural
fairness

[58] As stated
above, it was common cause that the applicant’s dismissal was
procedurally fair. The court therefore finds that
her dismissal was
procedurally fair, save that the respondent came to a wrong
conclusion and a wrong finding.

Compensation

[59] Having found
that the dismissal of the applicant was procedurally fair but
substantively unfair, now entitles her to some award
of compensation,
as she is not interested in reinstatement.

[60] The court has
considered the seven factors set out in section 24 (4) of the Trade
Dispute Act, no 15 of 2004 and finds in favour
of the applicant the
fact that the respondent had no valid reason for dismissing her and
that her dismissal was therefore substantively
unfair, as well as the
fact that she had only managed to find other employment as form the
beginning of January 2005. She was dismissed
on 12 July 2004 and she
was paid one month’s notice pay in lieu of notice. She was
therefore without work for 5 ½ months and
without income for 4 ½
months.

[61] The court
finds in favour of the respondent that it had held a proper
disciplinary enquiry and that the applicant’s dismissal
was
therefore procedurally fair, save that the respondent had come to a
wrong conclusion and a wrong finding.

[62] By using the
word “may” in section 24 (4), the court finds that the
legislature did not intend the seven factors, mentioned
in section 24
(4), which the court may take into account in assessing the
amount of compensation, to be exhaustive. This means that there can
be other factors as well,
which the court may take into account.

[63] One such
factor, not mentioned in section 24 (4), which the court finds
relevant and will take into account also in favour of
the respondent,
is the fact that the respondent has paid the applicant one month’s
notice pay in lieu of notice. This court has
already stated in
numerous previous judgments that an employer can only dismiss an
employee on notice if he has a valid reason for
doing so. It
therefore follows that if an employer has no valid reason for
dismissing an employee on notice, he may also not dismiss
the
employee by giving him/her notice pay in lieu of notice in terms of
section 19 (a) of the Employment Act. That means that if
dismissal
on notice does not enter the picture, notice pay in lieu of notice
can also not enter the picture. To put it differently,
where an
employee is dismissed, but the court finds that the employer had no
valid reason to dismiss him/her, such employee is not
entitled to
notice pay. If such notice pay has however been paid, then it must
be deducted from any award of compensation made in
favour of such an
employee. In this case the court has found that the respondent had
no valid reason to dismiss the applicant.

[64] Having
considered the aforesaid factors in favour of and against each party,
leaving aside for the moment the said notice pay,
the members of the
court are agreed that a fair and an appropriate award of
compensation, in the particular circumstances of this
case, would be
compensation equal to 4 months monetary wages. From this amount must
then be deducted the one month’s notice pay,
which means that the
applicant will be awarded compensation equal to 3 months monetary
wages. The amount so to be awarded to the
applicant is not salary
but compensation. The full amount, without any deductions, must
therefore be paid to the applicant.

[65] It is common
cause that the applicant’s salary at the time of her dismissal was
P5642.00 per month. The applicant is therefore
entitled to
compensation in the amount of P16926.00 (3x P5642.00).

Determination

[66] The court
consequently makes the following determination:

1. The termination
   of the contract of employment of the applicant, Patience Rapoo, by
   the respondent on 12 July 2004, was unlawful
   as well as
   substantively unfair but was procedurally fair.

2. In terms of
   section 19 (1) (a) of the Trade Disputes Act, the respondent is
   hereby directed to pay to the applicant the amount of
   P16926.00,
   being compensation.

3. The respondent is
   hereby further directed to pay the said amount of P16926.00 to the
   applicant, through the office of the registrar
   of this court, on or
   before Friday, 24 February 2006.

4. No order is made
   as to costs.

Dated at Gaborone
on this day of January 2006

____________________

D. J. de Villiers

INDUSTRIAL COURT JUDGE

We
agree on the facts:

_____________________

P. D. Chengeta

NOMINATED MEMBER (UNION)

________________________

B. O. Tsheko

NOMINATED MEMBER (BOCCIM)

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