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IN THE
INDUSTRIAL COURT OF BOTSWANA

HELD AT
GABORONE

 
CASE NO. IC. 61/2004

IN
THE DISPUTE BETWEEN

 

MALEBOGO
SIMANA ………………………. APPLICANT

AND

 

NEW
ERA SECONDARY SCHOOL ………………………. RESPONDENT

—————————————————————————————-

CONSTITUTION
OF THE COURT

D.
J. de VILLIERS INDUSTRIAL COURT JUDGE

T.
MAKUNGA NOMINATED MEMBER (UNION)

M.K.
MASHUMBA NOMINATED MEMBER (BOCCIM)

FOR
THE APPLICANT:

IN
PERSON

FOR
THE RESPONDENT

MR SAM
MAHONEY HEADMASTER OF RESPONDENT SCHOOL

PLACE
AND DATES OF PROCEEDINGS

GABORONE
18 MARCH 2006

28
NOVEMBER 2005

Wilful
disrespect for head of school by receptionist/secretary is serious
misconduct – it warrants summary dismissal.

Dismissal
procedurally unfair – no disciplinary enquiry held –
circumstances warrant only one month’s compensation.

Summary
of evidence

[1] The
applicant gave evidence and she had no witnesses to call. She
testified that she started working at the respondent school
as a
receptionist on 1 September 2000. Her receptionist duties also
included secretarial work. She had to attend to customers,
do filing
and taking mail to teachers and other staff members. In 2002 she was
given the additional duty of having to go to the
labour and
immigration offices to submit application papers for expatriate
teachers.

[2] The
applicant put it to the headmaster that he did not like her and he
did everything within his power to get rid of her. She
said he was
always trying to find fault with whatever she was doing and
eventually out of the blue she received the following letter
of
dismissal, dated 18 April 2003 and signed by the headmaster.

“To: Ms.
Malebogo Simana April 18, 2002

Dear
Ms. Simana

This
letter serves the purpose of informing you that your services as a
receptionist is no longer required and terminated at this
institution
with immediate effect.

This
is due to your repeated misconduct, disobedience, arrogant attitude
and ignorance of counselling.

This
decision is a result of thorough consultation at administration level
with Managing Director.

Please
find the attached cheque for your pro rata salary of April 2002.”

[3] The
headmaster denied that he had anything personal against the
applicant. He said the abovementioned are genuine complaints
he had
against the applicant. He was the only witness who testified on
behalf of the respondent. In his evidence he had a much
longer list
of complaints against the applicant. He inter alia
mentioned the following:

a) He
found that she was not conscientious about her duties. He wrote a
long letter to her on 27 February 2002 in which he Inter alia
clarified her duties

2. She
   had the habit or arguing about everything he told her to do.

2. She
   had a quick temper.

2. Her
   arguments always ended by her abusing him

2. She
   was very disrespectful towards him

2. When
   going to the labour and immigration offices she stayed away for long
   periods as she was also attending to her own private business

2. She
   was not responding to counselling and warnings.

Run
up to and reasons for dismissal

[4] The
headmaster testified that he came to this school and took over as
headmaster in January 2002. He found the applicant already
working
there and from the start he did not approve of her attitude. He said
he was therefore obliged to write a letter to her on
27 February 2002
clarifying her duties and commenting on her attitude and behaviour.
This letter inter alia
mentioned the following:

“Dear
Ms Simana

This
letter serves the purpose of informing you on the standard of work
you are expected to offer to this school.

1. ——————————

2. ——————————

3. You
   are expected to provide receptionist and secretarial services. You
   are NOT to make a decision about a process unless you are
   asked.

4. Insubordination
   causes waste of time, productivity and energy. You are strongly
   advised to provide the required services rather
   than criticising the
   procedures.

5. ——————————–

You
are invited to provide efficient services of high standard.”

[5] The
headmaster said that shortly after this, at the beginning of March
2002, the applicant had gone out to file applications for
work and
residence permits and never came back to work after lunch. He asked
her to write a letter explaining her absence and to
apologise. She
wrote a letter of apology dated 6 March 2002 apologising for not
coming back to the school after lunch. Her explanation
was that she
had gone to the bank to apply for a loan to clear the loan she had at
NDB as she was 5 months in arrear with that loan’s
instalments.
The headmaster said he accepted her apology conditionally on
condition she improved the communication between them.
He made this
endorsement at the bottom of her letter.

[6] He
stated that on 9 April 2002 she was out of the office from about 11
a.m. to about 4 p.m. to sort out residence permits for
2 teachers.
She was responsible to see that she had all documents for such
applications before handing in the application forms.
On that day
she had the audacity to phone the headmaster and told him she is 2
documents short, the teacher’s letter of appointment
and a letter
of permission to teach from the Ministry of Education. She told him
to prepare and get these forms and send them to
her. He sent these
forms down to her.

[7] When
the applicant returned at about 4 p.m. he said she was disgruntled
and annoyed because she had to take a taxi back and because
he had
taken so long to prepare the documents she required, which made her
to spend almost the whole day at these offices. When
he was trying
to explain to her that it is her duty to get all the necessary
documents before going to labour and immigration, she
started arguing
with him and said he never wants to listen to other people’s views
and uttered a few more abusive remarks.

[8] As
a result of this incident the applicant had to appear at a
disciplinary meeting on 10 April 2002. Present at this meeting
were
the deputy headmaster, the assistant headmaster and the applicant.
According to the minutes of this meeting, all the above
facts were
before the meeting and these two headmasters then counselled and
warned the applicant. The last two paragraphs of these
minutes read
as follows:

“f) The
Assistant Principal, Mr Nkwazi felt that we were all terribly
embarrassed by Malebogo’s behaviour and that if she did not learn
to control her temper, we would not hesitate to recommend for her
suspension from work.

g) Malebogo
accepted our counselling and as a Deputy Principal, I suggested that
she should personally apologise to Mr S. Mahoney
the Principal. She
gladly accepted this advice.”

[9] The
headmaster said that the applicant did apologise to him, which
apology he accepted, but he said it did not last long, because
on 18
April 2002 she was again disrespectful and again made abusive
remarks. He said on that day the applicant and one Naledi again
went
to labour and immigration for work and residence permits for
teachers. The applicant again stayed away for almost the whole
day.

[10] The
applicant and Naledi returned to the school at about 4 p.m. They met
the headmaster, who asked the applicant whether she
had done her duty
and whether she had achieved what she had gone there for. She
totally ignored the headmaster and just carried
on walking. Naledi
then told him what happened. He then said to the applicant that he
was talking to her and expected at least
a brief reply. He also told
her that it was disrespectful just to walk away when he is speaking
to her. This then developed into
a heated argument between them
during which argument the applicant was very abusive towards him.
She then gave the following absurd
explanation that she was not
walking away from him but was rushing to get her things in her
office, because it was time to lock up.
The headmaster said that is
nonsense because the applicant knew that he had the keys for the
school.

[11] He
said that was the last straw that broke the camel’s back. He could
see that all the counselling, warnings and apologies
were of no
avail. The applicant had no intention of improving her performance,
or changing her attitude. He said he tried hard
during the 3 months
and 3 weeks the applicant had worked with him to counsel her and to
get her to improve herself. As there was
no improvement, he felt
that they could not carry on like this. That is when he went to his
office and typed her aforesaid dismissal
letter. He dismissed her
summarily.

[12[ The
headmaster said that the applicant was not dismissed for any single
misconduct, but it was all the above complaints from
management,
taken collectively, that made him decide to dismiss her after
discussing it with the managing director.

[13] The
court will now first set out general principles of law and equity
relevant to a fair dismissal, especially regarding wilful
acts of
disrespect and will then determine whether the respondent had
complied with such general principles.

Substantive
fairness

[14] 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 of by paying him
notice pay in lieu of notice, if he has a valid
reason for such
termination.

[15] In
terms of section 26 (1) of the Employment Act, an employer may only
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.

[16] A
dismissal as a result of misconduct, albeit ordinary misconduct or
serious misconduct, on the part of an employee, is also
known as a
disciplinary dismissal. This means that the general rule is that an
employee may not be dismissed for misconduct unless
a disciplinary
enquiry has been held. In this court’s judgment in the case of M.
Phirinyane v. Spie Batignolles,
Case No. IC.18/94 (J.4), dated 6 January 1995, the court found that,
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 a dismissal. To establish whether there is a
valid reason, it is necessary to hold a proper
disciplinary enquiry
prior to dismissal.

[17] 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).

[18] 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.

[19] From
some of the applicant’s replies in court and from her demeanour on
the witness stand, the court could see that the applicant
was, to say
the least, a cheeky person. From the facts set out in the above
summary of evidence, the court finds that the probabilities
favour
the headmaster’s version and therefore accepts his evidence and
rejects the applicant’s evidence where it is in conflict
with that
of the headmaster.

[20] The
court finds that what the applicant had done was not as a result of
incompetence or negligence. They were all wilful acts
of, inter
alia, wilful disrespect
for the head of the school.

[21] The
court further finds that wilful disrespect by a
receptionist/secretary for the head of a school, is serious
misconduct, which
can warrant summary dismissal. The court finds
that such dismissal in this case, was based on the operational
requirements of the
school. The court finds that the circumstances
of this case do warrant summary dismissal and that the respondent
therefore had a
valid reason for dismissing the applicant summarily
and that her dismissal was therefore substantively fair.

Procedural
fairness

[22[ Procedural
fairness relates to the procedure followed by an employer prior to
dismissing an employee. The basic requirements
for a procedurally
fair dismissal is set out in article 7 of ILO Convention no. 158 of
1982, which article reads as follows:

“{t}he
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”.

[23] The
court has already stated above that in order to determine whether
there is a valid and fair reason for dismissing an employee,
a fair
and proper procedure must be followed by the employer prior to
dismissing an employee. A fair procedure means that a fair
and
proper disciplinary enquiry must be held. In the Spie Batignoless
– case, supra the court set out the equitable requirements
(rules of equity) for a fair disciplinary enquiry. As the headmaster
seems to be under
the impression that there is no need for a
disciplinary enquiry when an employee is dismissed for serious
misconduct, the court will
once again repeat these equitable
requirements.

[24]
The following are the equitable requirements for a fair disciplinary
enquiry, as set out in the Spie Batignolles – case:

“(a) The
employee who faces discipline must be given reasonable notice of the
time and place the employer intends holding a disciplinary
enquiry in
order to prepare for such enquiry.

(b) At
the same time the employee must be informed of the nature of the
charge or charges against him in writing.

(c) The
employee must be given the option of being assisted or represented at
the enquiry by a co-employee of his choice.

(d) The
employer should place sufficient evidence before the enquiry to prove
that the alleged misconduct has been committed and that
it has been
committed by the employee so charged.

(e) The
employee should be entitled to question any witness who testifies
against him.

(f) The
employee must be entitled to give evidence himself and to call his
own witnesses.

(g) In
the event of being found guilty of the alleged misconduct, the
employee must be given a further opportunity of putting forward
facts
in mitigation before a sanction is decided on.

8. If
   found guilty and after a sanction has been imposed, the employee
   should be informed of his right to appeal against such finding
   and/or sanction.

9. The
   enquiry should be conducted in good faith.”

[25] The
aforesaid rules of equity are not binding rules of law. They are
merely guidelines to assist employers in arriving at a
fair decision
when an employee is charged with misconduct. This applies to
ordinary misconduct as well as serious misconduct. The
general rule
is still however that an employee may not be dismissed for
misconduct, albeit it ordinary or serious misconduct, unless
a fair
and proper disciplinary enquiry has been held. Although the said
guidelines are not binding rules of law, if an employer
fails to
comply with such guidelines, the court could find such dismissal to
be procedurally unfair.

[26] It
was common cause that no disciplinary enquiry was held in this case
prior to the applicant’s dismissal. The applicant is
under the
impression that she has done nothing wrong. She would therefore have
pleaded not guilty to any charge that may have been
brought against
her at a disciplinary enquiry. It was therefore all the more
necessary that a disciplinary enquiry should have been
held. The
headmaster would have been the main witness and either the deputy or
assistant headmaster could have been chairman.

[27] In
the circumstances the court finds that, although the dismissal of the
applicant was substantively fair it was nevertheless
procedurally
unfair.

Compensation

[28] Having
found that the dismissal of the applicant was substantively fair but
only procedurally unfair, will entitle the applicant
to some award of
compensation. When the court determines an appropriate award of
compensation for procedural unfairness only, it
usually grants one,
two or three months compensation, depending on the circumstances of
the case.

[29] Having
considered the circumstances of this case the court finds in favour
of the respondent that the applicant was disrespectful,
abusive,
argumentative and that she had a quick temper and despite counselling
and warnings she showed no improvement in her attitude.
The only
factor in favour of the applicant is that no disciplinary enquiry was
held prior to her dismissal.

[30] Having
considered the aforesaid factors in favour of the respondent and the
applicant, 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 1 month’s
monetary wages
for the applicant. 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 her.

[31] It
was common cause that at the time of the applicant’s dismissal, her
salary was P640 per month. In the circumstances the
applicant is
entitled to compensation, for procedural unfairness only, in the
amount of P640.00

Accrued
leave pay

[32] The
applicant stated that with her final pay she was also paid accrued
leave pay, but she thinks it was not correctly calculated.
She now
wants the court to recalculate her accrued leave pay. The applicant
did not dispute the headmaster’s evidence that she
was entitled to
15 days paid leave per year, which is 1.25 (15 ÷12) days per month
and that she had only taken 4 days leave.

[33] It
was common cause that the applicant worked for the respondent from 1
September 2000 till 18 April 2002 when she was dismissed,
which is
for a period of 19 months and 18 days. In terms of section 98 (6)
(a) of the Employment Act, when calculating accrued leave,
a part of
a month will be reckoned as a full month. The applicant’s accrued
leave must therefore be calculated over a period of
20 months. The
applicant had therefore accumulated 25 (20 x 1.25) days leave of
which she has taken 4 days leave. She is therefore
entitled to
accrued leave pay for 21 days. The respondent has calculated it over
20 days.

[34] It
was common cause that the applicant worked 5 days a week. In terms
of section 95 (8) of the Employment Act, a 5 day working
week
converts to a 22 day working month. To calculate an employee’s
daily rate of payment, his/her monthly salary must be divided
by 22.
The applicant’s daily rate of payment was therefore P29.09 (P640
÷22). The respondent calculated the applicant’s daily
rate of
payment as P29. The applicant was therefore entitled to accrued
leave pay in the amount P610.89 (21 x 29.09). The applicant
has
already been paid P580.00 as accrued leave pay. She is therefore now
entitled to a further payment of P30.89 (P610.89 – P580.00)
being
the balance of her accrued leave pay.

Notice
pay

[35] The
applicant said she also wants one month’s notice pay in lieu of
notice as she was summarily dismissed. The court has already
dealt
with the provisions of section 26 (1) of the Employment Act in
paragraph [15] hereof. There the court set out that in terms
of
section 26 (1) an employer may only dismiss an employee without
notice if he is guilty of serious misconduct in the course of
his
employment. The applicant was found guilty of serious misconduct, so
the respondent was entitled to dismiss her summarily.

[36] The
said section 26 (1) of the Employment Act is in line with
international labour standards. Article 11 of ILO Convention no.
158
of 1982 provides as follows:

“A
worker whose employment is to be terminated shall be entitled to a
reasonable period of notice or compensation in lieu thereof,
unless
he is guilty of serious misconduct, that is, misconduct of such a
nature that it would be unreasonable to require the employer
to
continue his employment during the notice period.”

The
court consequently finds that, as the applicant has been found guilty
of serious misconduct, she is not entitled to notice or
notice pay in
lieu of notice.

Determination

[37] The
court consequently makes the following determination:

1. The
termination of the contract of employment of the applicant, Malebogo
Simana, by the respondent on 18 April 2002, was substantively
fair
but procedurally unfair.

2. In
terms of section 19 (1) (b) of the Trade Disputes Act, the respondent
is hereby directed to pay to the applicant the amount
of P640.00,
being compensation.

3. In
terms of section 20 (1) of the Trade Disputes Act, read with section
98 (6) of the Employment Act, the respondent is hereby
directed to
pay to the applicant, the amount of P30.89, being the balance of her
accrued leave pay.

4. The
respondent is hereby further directed to pay the said amounts,
referred to in subparagraphs [37] 2 and 3 hereof, totalling
P670.89,
to the applicant, through the office of the registrar of this court,
on or before Friday, 24 February 2006.

5. No
order is made as to costs.

Dated
at Gaborone this day of January 2006

________________________

D.J. de Villiers

INDUSTRIAL
COURT JUDGE

We
agree on the facts:

___________________________

M.K. Mashumba

NOMINATED
MEMBER (BOCCIM)

_______________________________

T. Makunga

NOMINATED
MEMBER (UNION)

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