Sekgolwane v Baletlwa (IC. 572/2004) [2006] BWIC 11; [2006] 1 BLR 613 (1 April 2006)
R
IN
THE INDUSTRIAL COURT OF BOTSWANA
HELD
AT GABORONE
CASE NO. IC. 572/2004
IN
THE DISPUTE BETWEEN
LEBITSAMANG
SEKGOLWANE ………………………. APPLICANT
AND
RANTHEBANA BALETLWA ……………………….
RESPONDENT
CONSTITUTION
OF THE COURT
M.
EBRAHIM-CARSTENS INDUSTRIAL COURT JUDGE
M.K.
NTETA NOMINATED MEMBER (BOCCIM)
S.C.L.
DINGALO NOMINATED MEMBER (UNION)
FOR
THE APPLICANT
IN
PERSON
FOR
THE RESPONDENT
NO
APPEARANCE
PLACE
AND DATE OF PROCEEDINGS
GABORONE
7TH APRIL 2006
Interpretation
of Section 32 (1)(f) of the Employment Act – Giving rise to
absurdity – Legislature does not intend legislation
which is futile
or nugatory.
Trade
Disputes Act 2003 not specifying nature or extent of compensation –
Court exercising discretion to compute on basic pay including
payment
in kind.
JUDGMENT
[1] The applicant’s statement
of particulars sets out his claim as follows:
“I
was working at Mr. Ranthebana Baletlwa’s cattle-post at
Morweetsana as a herd boy. Sometimes this year I asked for a leave
and it was granted. They then found someone to take care of the
cattle while I was on leave. When the 14 days that I had been
given for leave elapsed, I went back to the cattle-post. Mr. Two,
the gentleman who had been hired while I was on leave told
me that
Mr. Baletlwa’s son said I was dismissed and that I should not come
back. I went to ask Mr. Baletlwa about this and
he said he did not
know anything about the issue. Mr. Baletlwa’s wife confirmed
that her son said he did not want me to work
at the cattle-post
anymore.
I am asking for repatriation
from their cattle-post to Nneneke, notice pay, compensation and
gratuity.”
[2] On 8th
November 2004, the applicant served the statement of case and
particulars on the respondent. The latter failed to respond and the
matter was set down for a default hearing on 7th
April 2006, notice of the hearing having been despatched to both
parties by the Court Registry on 25th
January 2006.
[3] On the day of the default
hearing there was no appearance by or for the respondent. The court
therefore proceeded to hear the
applicant’s sworn testimony in
support of his claim in accordance with the rules relating to default
hearings. Since the respondent
failed to appear or to file any
papers, the court’s findings are therefore based on the
applicant’s evidence alone.
[4] The applicant testified that
he was employed as a herdsman on 29th
January 2000 and dismissed in September 2004 in the manner alleged in
his particulars of claim. He was earning a monthly salary
of P400.00
and supplied with food rations of P200.00 per month.
[5] The applicant said he was
unfairly dismissed and prayed that the court grant him notice pay,
compensation, severance benefit
and repatriation costs being
travelling costs from Kanye to the cattle post.
Termination of Employment
[6] The applicant falls under
the category of a domestic employee per Section 2 (1) of the
Employment Act Cap 47:01:
‘“domestic employee”
means any house, stable or garden servant, motor car driver or
domestic animal attendant employed in
or in connection with the
domestic services of any private premises, including land devoted
to cultivation or grazing other than
for commercial purposes.”
[7] It is trite law that the
termination of a worker’s contract of employment must be both
substantively and procedurally fair.
This means that there must be a
valid and fair reason for the termination. It also means that an
employer must follow a fair procedure
before dismissing an employee.
See M. Phirinyana vs. Spie Batignolles Case No. IC. 18/94
dated 6th January 1995 (J4). This is in line with
Articles 4 and 7 of ILO Convention No. 158 of 1982. Article 4 states
that 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.
[8] Article 7 of the ILO
Convention No. 158 of 1982 states that the employment of a worker
shall not be terminated for reasons related
to the worker’s 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. The guidelines for
a fair disciplinary enquiry were
set out in the Phirinyana
case and need not be repeated here.
[9] These procedural guidelines
are not to be slavishly or mechanically applied and the court may
look at factors such as the size
and nature of the business or the
employment relationship. There are also exceptions to the general
rule – see the Phirinyana case. In the case of Ellen
Lucas vs. Lurgi Lentjies Botswana ICF. 69/2004 dated 22nd
March 2005 (J1229) I said:
“[9] It has also been held
that in cases of a true “master- servant” relationship, for
example that of a domestic worker,
these guidelines need not be
fully adhered to, as long as the worker has some opportunity to
answer charges. {See the case of
National Development vs. Thothe
[1994] BLR at page 109; B. Defemo vs. Stephen Collins IC.
124/98; (J333) September 1999}.
[10] I have some discomfort
with the fact that
Dickensian terminology such as
‘master-servant’ and ‘man- servant’ has any place in our
modern labour law jurisprudence.
In particular, it is common
knowledge that, save perhaps for herdsmen and gardeners, most
domestic workers in this country are
female.
[11] Whilst I appreciate that
the relationship is of a close personal nature in such a situation,
I cannot subscribe to the view
that the applicant, simply because
she was a cleaner, domestic or otherwise, was not entitled to a
hearing after 10 years of service
with the respondent. Particularly
as, according to her undisputed testimony, she had no previous
warnings written or otherwise
….”.
[10] In the applicant’s case,
he was not given any reason other than that the respondent’s son
did not want him to work at the
cattle post anymore. This is not a
valid reason. There was no disciplinary enquiry held, nor any
opportunity to answer any charges,
if indeed the applicant committed
any misconduct; nor any consultation if the reason for dismissal was
operational. He was simply
told he was dismissed. The court finds
therefore that the applicant’s dismissal was both substantively and
procedurally unfair.
The Applicant’s
Entitlements
[11] Section 25 of the Trade
Disputes Act 2003 (Act No. 15 of 2003) states that this court may
order the payment to any person, of
money it finds to be due to him
under the terms of his contract of employment, the Trade Disputes
Act, or any other written law.
If not provided for in the
contract of employment, an employee’s entitlements may be found
under the Employment Act.
Repatriation
[12] In terms of Section 32
(1) of the Employment Act, an employee is entitled to his
repatriation costs in the following circumstances:
“32 (1) Every employee who has
been brought to the place of employment by the employer or by any
person acting on behalf of the employer
shall have the right to be
repatriated at the expense of the employer to his place of
recruitment in the following cases—
(a) at the expiry of the period
of time for which the contract of employment was made;
(b) on the termination of the
contract of employment by reason of the inability of the employer to
fulfil the contract;
(c) on the termination of the
contract of employment by reason of the inability of the employee to
fulfil it owing to sickness,
accident or his rejection after medical
examination section 46;
(d) on the termination of the
contract of employment by the employer for just cause, whatever
that cause may be;
(e) on the termination of the
contract of employment by agreement between the parties, unless the
contract otherwise provides;
or
(f) on the termination of the
contract of employment by order of a court, unless the court
otherwise directs.”
[13] In terms of Section 32(1)
(a) to (e) therefore, the right to repatriation arises at the expiry
of a fixed term contract; on the
inability of either party to fulfill
the contract; and on the termination of the contract by mutual
consent, or for just cause.
[14] On a plain reading of the
section, there is no right to repatriation on the wrongful or
unlawful termination of the contract
of employment by the employer;
only on a “termination of the contract of employment by order of a
court,” – per Section 32(1)
(f).
[15] The plain reading of
Section 32(1) (f) clearly gives rise to an absurdity for I can
envisage no situation where a court orders
the termination of a
contract of employment. Nor can I find that it was the intention of
the legislature to deprive an employee of
his repatriation costs when
he has been wrongfully dismissed, yet allow such costs where he has
been dismissed for just cause.
[16] Section 26 of the
Interpretation Act Cap 01:04 provides that “Every enactment shall
be deemed remedial and for the public good
and shall receive such
fair and liberal construction as will best attain its object
according to its true intent and spirit.”
[17] Section 27 of the
Interpretation Act provides that in the construction of an enactment,
an interpretation which would render
the enactment ineffective shall
be disregarded in favour of an interpretation which will enable it to
have effect.
[18] Unless the contrary is
clear, it is presumed that the Legislature does not intend
legislation which is futile or nugatory. This
is the principle of
“effectual and purposeful legislation”. This presumption forms
the crux and basis of the most important
principle of interpretation,
namely that the court has to determine the purpose of the legislation
and give effect to it.
[19] Punctuation in an enactment
may,
and not shall, be used as an aid to its construction (Section 8 of
the Interpretation Act). Since the punctuation in Section 32(1)
(f)
leads to an absurdity, I do not believe that I should be doing any
violence to the said provision by reading it thus – “on
the termination of the contract of employment, by order of a court
unless the court otherwise directs.”
[20] I find and order therefore
that the applicant, whose contract of employment was wrongfully
terminated by the respondent, is entitled
to his repatriation costs.
He testified that these costs were
a mere P 7.00 being transport
from Kanye.
Notice Pay
[21] An employer may terminate
an employee’s contract of employment for a valid reason on payment
of one month’s notice – B. Motsumi vs. First National Bank of
Botswana Case No. IC. No. 36/95 dated 29th September
1995. There was no reason given, let alone a valid reason, for the
applicant’s dismissal. He was in fact summarily dismissed.
Notice
is therefore not payable.
Severance Benefit
[22] By virtue of Section 27 of
the Employment Act, an employee must complete 60 months or 5 years of
continuous employment before
he is eligible for severance benefit or
“gratuity” as it is commonly known. The applicant unfortunately
was four months short
of 60 months when he was dismissed. He is
therefore not eligible for severance pay.
Compensation
[23] Having found that the
termination of the applicant’s contract of employment was both
substantively and procedurally unfair,
the applicant is entitled to
compensation for his unfair dismissal – See Section 24 of the Trade
Disputes Act. In assessing the
appropriate amount of compensation,
the court may consider the following factors:
-
The actual and future loss
likely to be suffered by the employee as a result of the wrongful
dismissal;
-
the age of the employee;
-
the prospects of the employee
in finding other equivalent employment;
-
the circumstances of the
dismissal; -
the acceptance or rejection by
either the employer or employee of any recommendation made by the
Court for the reinstatement of
the employee;
-
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;
-
The employer’s ability to
pay.
[24] Of all the aforesaid
factors, only factor (e) is not relevant in this case. In considering
factors (a) to (c), the court finds
that the applicant is an elderly
man with no prospects of employment.
His working days are
over. He has suffered actual loss of his monthly income and any
future earnings for no apparent reason. He
has been deprived of his
severance benefit by the premature termination of his employment
without cause.
[25] As regards factor (d), the
‘circumstances of the dismissal’ are that the dismissal was
unfair both procedurally and substantively.
The respondent dismissed
the applicant at a time when he was shortly due to qualify for his
severance benefit. The court finds that
this aggravating factor must
be taken into account in the assessment of compensation.
[26] As to the remaining
factors, the respondent breached the provisions on repatriation.
There is no evidence of inability to pay.
In fact, there are no
factors in favour of the respondent. The court therefore finds that
six months wages as compensation is
appropriate.
Computation of compensation
[27] Prior to the 2003 Trade
Disputes Act which came into force on 23rd April 2004, compensation
payable by the employer or employee
was expressed in terms of
‘monetary wages’. It was also limited to a maximum of six months
monetary wages either way. The new
Act retains the maximum of six
months ‘monetary wages’ payable to the employer in the instance
of wrongful termination by the
employee- Section 24(6). The Act is
however silent regarding both the nature of, and the maximum
compensation payable to the employee
in the instance of wrongful
termination by the employer. Section 24(1) simply states that where a
court determines that an employee
has been wrongfully dismissed, it
may order reinstatement of the employee with or without compensation,
or order compensation in
lieu of reinstatement, “subject to its
discretion to make any other order which it considers just.”
[28] The evidence is that the
applicant’s actual loss consisted of a monthly salary of P400.00
and food rations of P200.00. Section
84 (1) of the Employment Act
allows for the partial payment of an employee’s wages in kind,
other than in the form of intoxicating
liquor provided that such
payments in kind are appropriate for the personal use and benefit of
the employee and his family, the value
attributed to such payments in
kind is fair and reasonable, and does not exceed 40 percent of the
employee’s wage.
[29] In the case of Oageng
Modikwa v Debswana Diamond Company IC 66/96 dated
14th April 1999 (J281), Justice DJ de Villiers set out
that the definition of ‘monetary wages’ means “consisting of
money” and
will therefore include any remuneration sounding in
money. ‘Wage’ or ‘wages’ means the aggregate of basic pay
and all other
forms of remuneration payable to an employee by virtue
of the contract of employment – Section 2 (1) of the Employment
Act. Whereas
“basic pay” means the rate of payment, including
any payment in kind, made by an employer for work done or services
performed
during an hourly, weekly, fornightly or monthly period
excluding all other remuneration.
[30] Had the applicant qualified
for severance benefit, this would have been calculated on his basic
pay in accordance with Regulation
3 of the Employment Act
(Miscellaneous Provisions) Regulations SI 110/1992. In the light of
the particular circumstances of this
case, and in the exercise of my
discretion, I find it would be just and equitable to calculate the
applicant’s
compensation based on a basic
salary of P 600.00. The respondent is therefore to pay to the
applicant the sum of P 3,600.00 as compensation
(P 600.00 x 6).
Determination
In all the circumstance of this
case, the court therefore makes the following determination:
1. The termination of the
applicant’s contract of employment by the respondent was both
substantively and procedurally unfair.
2. In terms of Section 25 (1) of
the Trade Disputes Act as read with Section 24 of the Trade Disputes
Act, the respondent is hereby
directed to pay the applicant six
months wages as compensation.
3. In terms of Section 24 (1)
of the Trade Disputes Act, the court in its discretion orders that
such compensation be computed
on the applicant’s basic pay of
P600.00 per month;
4. The respondent is therefore
directed to make payment of P3,600.00 (P600.00 x 6) to the
applicant.
5. In terms of Section 25 (1) of
the Trade Disputes Act as read with Section 32 (1) of the Employment
Act, the respondent is directed
to pay the applicant P7.00 being
repatriation costs.
6. The respondent is further
directed to pay the aforesaid sums, P 3,600.00 in total, to
the applicant through the Office of the Registrar of the Industrial
Court on or before Friday 26th May 2006.
7. No order is made as to costs.
Dated at Gaborone this day
of April 2006.
.……………………………..
M.
EBRAHIM-CARSTENS
INDUSTRIAL
COURT JUDGE
We
agree on the facts:
………….. ……………………………..
M.K.
NTETA
NOMINATED MEMBER
(BOCCIM)
………………………………………..
S.C.L.
DINGALO
NOMINATED MEMBER
(UNION)