Simana v New Era Secondary School (IC. 61/2004)  BWIC 3;  1 BLR 178 (1 January 2006)
INDUSTRIAL COURT OF BOTSWANA
CASE NO. IC. 61/2004
THE DISPUTE BETWEEN
SIMANA ………………………. APPLICANT
ERA SECONDARY SCHOOL ………………………. RESPONDENT
OF THE COURT
J. de VILLIERS INDUSTRIAL COURT JUDGE
MAKUNGA NOMINATED MEMBER (UNION)
MASHUMBA NOMINATED MEMBER (BOCCIM)
MAHONEY HEADMASTER OF RESPONDENT SCHOOL
AND DATES OF PROCEEDINGS
18 MARCH 2006
disrespect for head of school by receptionist/secretary is serious
misconduct – it warrants summary dismissal.
procedurally unfair – no disciplinary enquiry held –
circumstances warrant only one month’s compensation.
applicant gave evidence and she had no witnesses to call. She
testified that she started working at the respondent school
receptionist on 1 September 2000. Her receptionist duties also
included secretarial work. She had to attend to customers,
and taking mail to teachers and other staff members. In 2002 she was
given the additional duty of having to go to the
immigration offices to submit application papers for expatriate
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
dismissal, dated 18 April 2003 and signed by the headmaster.
Malebogo Simana April 18, 2002
letter serves the purpose of informing you that your services as a
receptionist is no longer required and terminated at this
with immediate effect.
is due to your repeated misconduct, disobedience, arrogant attitude
and ignorance of counselling.
decision is a result of thorough consultation at administration level
with Managing Director.
find the attached cheque for your pro rata salary of April 2002.”
headmaster denied that he had anything personal against the
applicant. He said the abovementioned are genuine complaints
against the applicant. He was the only witness who testified on
behalf of the respondent. In his evidence he had a much
of complaints against the applicant. He inter alia
mentioned the following:
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
had the habit or arguing about everything he told her to do.
had a quick temper.
arguments always ended by her abusing him
was very disrespectful towards him
going to the labour and immigration offices she stayed away for long
periods as she was also attending to her own private business
was not responding to counselling and warnings.
up to and reasons for dismissal
headmaster testified that he came to this school and took over as
headmaster in January 2002. He found the applicant already
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:
letter serves the purpose of informing you on the standard of work
you are expected to offer to this school.
are expected to provide receptionist and secretarial services. You
are NOT to make a decision about a process unless you are
causes waste of time, productivity and energy. You are strongly
advised to provide the required services rather
than criticising the
are invited to provide efficient services of high standard.”
headmaster said that shortly after this, at the beginning of March
2002, the applicant had gone out to file applications for
residence permits and never came back to work after lunch. He asked
her to write a letter explaining her absence and to
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
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.
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
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.
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
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
with him and said he never wants to listen to other people’s views
and uttered a few more abusive remarks.
a result of this incident the applicant had to appear at a
disciplinary meeting on 10 April 2002. Present at this meeting
the deputy headmaster, the assistant headmaster and the applicant.
According to the minutes of this meeting, all the above
before the meeting and these two headmasters then counselled and
warned the applicant. The last two paragraphs of these
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.
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.”
headmaster said that the applicant did apologise to him, which
apology he accepted, but he said it did not last long, because
April 2002 she was again disrespectful and again made abusive
remarks. He said on that day the applicant and one Naledi again
to labour and immigration for work and residence permits for
teachers. The applicant again stayed away for almost the whole
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
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
headmaster said that the applicant was not dismissed for any single
misconduct, but it was all the above complaints from
taken collectively, that made him decide to dismiss her after
discussing it with the managing director.
court will now first set out general principles of law and equity
relevant to a fair dismissal, especially regarding wilful
disrespect and will then determine whether the respondent had
complied with such general principles.
fairness relates to the reason for terminating an employee’s
contract of employment. An employer can only terminate
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
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,
mentioned here, that could be classified as serious misconduct.
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
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
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
prior to dismissal.
rules of natural justice, or rules of equity as they are sometimes
called, are derived from conventions and recommendations
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
for a fair dismissal are set out in article 4 of ILO
Convention no. 158 of 1982. Article 4 reads as follows:
employment of a worker shall not be terminated unless there is
for such termination connected with the capacity or
of the worker or based on the operational requirements of the
establishment or service”. (Court’s underlining).
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.
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
the headmaster’s version and therefore accepts his evidence and
rejects the applicant’s evidence where it is in conflict
of the headmaster.
court finds that what the applicant had done was not as a result of
incompetence or negligence. They were all wilful acts
alia, wilful disrespect
for the head of the school.
court further finds that wilful disrespect by a
receptionist/secretary for the head of a school, is serious
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.
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:
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
court has already stated above that in order to determine whether
there is a valid and fair reason for dismissing an employee,
and proper procedure must be followed by the employer prior to
dismissing an employee. A fair procedure means that a fair
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
The following are the equitable requirements for a fair disciplinary
enquiry, as set out in the Spie Batignolles – case:
employee who faces discipline must be given reasonable notice of the
time and place the employer intends holding a disciplinary
order to prepare for such enquiry.
the same time the employee must be informed of the nature of the
charge or charges against him in writing.
employee must be given the option of being assisted or represented at
the enquiry by a co-employee of his choice.
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.
employee should be entitled to question any witness who testifies
employee must be entitled to give evidence himself and to call his
the event of being found guilty of the alleged misconduct, the
employee must be given a further opportunity of putting forward
in mitigation before a sanction is decided on.
found guilty and after a sanction has been imposed, the employee
should be informed of his right to appeal against such finding
enquiry should be conducted in good faith.”
aforesaid rules of equity are not binding rules of law. They are
merely guidelines to assist employers in arriving at a
when an employee is charged with misconduct. This applies to
ordinary misconduct as well as serious misconduct. The
is still however that an employee may not be dismissed for
misconduct, albeit it ordinary or serious misconduct, unless
and proper disciplinary enquiry has been held. Although the said
guidelines are not binding rules of law, if an employer
comply with such guidelines, the court could find such dismissal to
be procedurally unfair.
was common cause that no disciplinary enquiry was held in this case
prior to the applicant’s dismissal. The applicant is
impression that she has done nothing wrong. She would therefore have
pleaded not guilty to any charge that may have been
her at a disciplinary enquiry. It was therefore all the more
necessary that a disciplinary enquiry should have been
headmaster would have been the main witness and either the deputy or
assistant headmaster could have been chairman.
the circumstances the court finds that, although the dismissal of the
applicant was substantively fair it was nevertheless
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
considered the circumstances of this case the court finds in favour
of the respondent that the applicant was disrespectful,
argumentative and that she had a quick temper and despite counselling
and warnings she showed no improvement in her attitude.
factor in favour of the applicant is that no disciplinary enquiry was
held prior to her dismissal.
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
for the applicant. The amount so to be awarded to the applicant is
not salary but compensation. The full amount,
deductions, must therefore be paid to her.
was common cause that at the time of the applicant’s dismissal, her
salary was P640 per month. In the circumstances the
entitled to compensation, for procedural unfairness only, in the
amount of P640.00
applicant stated that with her final pay she was also paid accrued
leave pay, but she thinks it was not correctly calculated.
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.
was common cause that the applicant worked for the respondent from 1
September 2000 till 18 April 2002 when she was dismissed,
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
accrued leave pay for 21 days. The respondent has calculated it over
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
converts to a 22 day working month. To calculate an employee’s
daily rate of payment, his/her monthly salary must be divided
The applicant’s daily rate of payment was therefore P29.09 (P640
÷22). The respondent calculated the applicant’s daily
payment as P29. The applicant was therefore entitled to accrued
leave pay in the amount P610.89 (21 x 29.09). The applicant
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)
the balance of her accrued leave pay.
applicant said she also wants one month’s notice pay in lieu of
notice as she was summarily dismissed. The court has already
with the provisions of section 26 (1) of the Employment Act in
paragraph  hereof. There the court set out that in terms
section 26 (1) an employer may only dismiss an employee without
notice if he is guilty of serious misconduct in the course of
employment. The applicant was found guilty of serious misconduct, so
the respondent was entitled to dismiss her summarily.
said section 26 (1) of the Employment Act is in line with
international labour standards. Article 11 of ILO Convention no.
of 1982 provides as follows:
worker whose employment is to be terminated shall be entitled to a
reasonable period of notice or compensation in lieu thereof,
he is guilty of serious misconduct, that is, misconduct of such a
nature that it would be unreasonable to require the employer
continue his employment during the notice period.”
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.
court consequently makes the following determination:
termination of the contract of employment of the applicant, Malebogo
Simana, by the respondent on 18 April 2002, was substantively
but procedurally unfair.
terms of section 19 (1) (b) of the Trade Disputes Act, the respondent
is hereby directed to pay to the applicant the amount
terms of section 20 (1) of the Trade Disputes Act, read with section
98 (6) of the Employment Act, the respondent is hereby
pay to the applicant, the amount of P30.89, being the balance of her
accrued leave pay.
respondent is hereby further directed to pay the said amounts,
referred to in subparagraphs  2 and 3 hereof, totalling
to the applicant, through the office of the registrar of this court,
on or before Friday, 24 February 2006.
order is made as to costs.
at Gaborone this day of January 2006
D.J. de Villiers
agree on the facts: