Typically, an organisation transacts its business by the hand of an employee.  Life dynamics are such that some employees are themselves also providers of work or employers in their own right as, in their private lives, they own businesses which employ others. 

As a result, a work space often becomes a market-place of ideas from which a learning organisation can tap, seeing that some of its employees are themselves businesspeople or employers in their own right, and are often tuned up to aspects that make a business successful.

However, some organisations and some such employees (hereafter called 'employer/s' for this discussion) overlook, from time to time, the legal aspects that relate to the management of their human capital, particularly at the provisioning or recruiting stage and/or during the currency of the employment.

Although rather obvious, it must be said that those whom one employs do not cease to be his/her employees, if they be lawfully employed, simply because it is him/her, who ordinarily is someone else's employee, who is now in the employer's seat.  

The Employment Act Chapter 47:01 quite clearly provides for certain types of employment, namely 'casual', 'specified piece of work without reference to time', 'specified period of time', and 'employment for an unspecified period of time' (some call this one 'permanent').  The said Act also makes reference to the making of regulations relating to other types such as 'short-term', 'part-time' and 'temporary' employment, although nothing further is said about these.  Issues arise when employers decide to pick and choose, from all these labels, what to call employees whom they engage from time to time. 

In my observation, the types where serious misapplication of the law happens relate to 'casual' and 'temporary' employment.

In terms of the said Act, by casual employee is meant an employee whose terms of contract are for a period which does not exceed 12 months. 

The terms of the contract limit the employment to not more than 3 days, or more than 22 1/2 hours, work in a given week.  Black's Law Dictionary defines 'temporary' thus:  "Lasting for a time only; existing or continuing for a limited (usu. short) time; transitory".  Barker & Holtzhausen 1996; South African Labour Glossary, Juta & Co Ltd 1996 submit 'temporary work' as "Employment governed by a fixed-duration contract where the term of the contract is defined by objective conditions such as reaching a specific date, the completion of a specific task, the occurrence of a specific event or the period required to replace an employee who is absent in the short-term". 

The practice by some employers of initially recruiting someone as a casual or temporary employee, and then somersault as the contract endures by treating him/her in a manner largely or wholly consistent with that of a permanent employee, is common-place. 

This can be due either to sheer recklessness, or simply not knowing any better.  In one local case the Industrial Court held that a litigant who had been employed as a 'casual', but was made to work just like a permanent employee, and for a fairly lengthy period, could no longer be said to be a casual employee, following the fact that as the contract endured, the employer violated every provision governing the management of casual employment. 

I join the Court's position when, in another local case where an employer engaged someone as a temporary employee, but managed him in a manner consistent with someone on permanent employment, it remarked that we have no such thing as unqualified temporary employment.

Found below are some proposals, which are fairly simple, practical and quite cost-conscious. 

*No matter how small an employer you may be, familiarise yourself with the Acts and any Regulations that may apply specifically to you or your industry. 

It should not take much to, for example, simplify this by having the departmental clerk or an identified central person within a given department to be the custodian of these, for ease of access by users.  As pointed out in one of my last year's article, these Acts and related documents could be interpreted for you by experts, for easy understanding within the organisation.

* Familiarise yourself with ILO Conventions and Recommendations, as they are relevant on the human capital management landscape.  Not doing so could lead to a situation where an employee can join issues with you, sometimes to the point of the matter becoming a court case.  You will not be excused simply because you did not know about their existence, or that you did not find certain of their provisions incorporated anywhere in the Acts.

Further, one should understand that over and above the rigours of strict law, there are what are called principles of equity.  You would need to familiarise yourself with these, and incorporate the elements, to the extent possible, in your work space toolkits.  Failure to do so could find you getting stuck where the strict  law itself is non-existent or is silent about a particular work issue.

*Upon engaging an employee, as was proposed for independent contractors, consultants and such in my earlier article, the label and other terms and conditions of the contract should be clear to both parties, and the relationship should be managed in a manner consistent with the terms and conditions of the contract. 

Failure to do so could expose the employer to the risk of the person later arguing that s/he should be regarded as having been on permanent employment for the purposes of application of both the labour laws of the country and the employer's  conditions of employment applicable to comparable permanent employees. 

Case law from within Botswana and from several other jurisdictions shows that while in certain situations an aggrieved's arguments failed in this regard, in other cases they were successful, with costly consequences for the erring employer.

*'Losing' a case before an Arbitrator or courts sometimes comes with huge costs.  To mitigate against this, an employer should consider having timeous in-house capacity building, particularly for those to whom confidence and trust are reposed to manage human capital. 

This can be done by means of building internal organisational capacity to develop and deliver internally same in the interest of self-sufficiency, or by outsourcing this body of work to external experts.  I am persuaded this would be a wise investment, if regard is had to the lesser costs attached to taking this approach compared to the likely high costs, both monetary and non-monetary, of 'losing' cases.

This article does not purport to be a full and complete treatment of the issues discussed.

Masango is in the Doctor of Laws (LLD) programme.  He writes fully and completely in his personal   capacity.  As such, his views do not represent, in any way whatsoever, those of any institution or organisation/s he may be associated with however and whenever.

He can be contacted on
Email: 64 jmasangoworkspacesolutions@gmail.com  or cell: (267) 71313730 or land: (267) 2971547.1198