Court halts doctors' 'strike'
Innocent Selatlhwa | Monday August 28, 2023 06:00
Justice Annah Mphetlhe ruled in favour of the Directorate of Public Service Management (DPSM) and the Attorney General (AG) who were litigating against BDU.
The case follows the recent Call Duties ‘strike’ doctors allegedly engaged in within the health sector, which BDU denied involved in arguing that "no strike or industrial action has taken place".
The employer’s case
The DPSM and the AG, represented by Vegeer Law Practice were seeking and were granted multiple orders as per their draft order. Redresses included an expedited hearing under special circumstances, the issuance of a provisional court order (rule nisi) requiring BDU to provide justifications for its actions, and the assertion that the strike and industrial actions by BDU doctors violate the Trade Disputes Act. Additionally, the application called for restraining BDU and its members from contravening the Trade Disputes Act, Collective Agreements, and employment contracts.
Further, it wanted instructions for BDU to ensure compliance from members with the Trade Disputes Act and employment agreements, alongside a directive for intervention to curb any unlawful behaviour.
The crux of the disagreement stems from a Founding Affidavit by Gaone Macholo, DPSM’s Director. Among other, she detailed that negotiations occurred between the government and public service trade unions, including BDU, regarding salary adjustments for the fiscal years 2022–2023 and 2023–2024. This negotiation involved the Doctors’ Emergency Call Allowance, resulting in an agreement and joint statement that included a 15% Emergency Call Allowance for BDU members starting from September 2022. Also, agreements were reached concerning the payment of arrears and the resumption of emergency call duties by doctors.
These agreements entailed a review of the Doctors’ Emergency Call policy, duty contracts, and rosters. However, BDU announced on August 1 that its medical and dental officer members would cease Emergency Call duties. The DPSM contended that this action infringed upon the Trade Disputes Act and Collective Agreements. Additionally, they argued that the strike by doctors providing essential services constitutes an unlawful and unprotected act under the Trade Disputes Act.
The doctors’ case
In response, BDU denied engaging in a strike, arguing that no strike or industrial action had taken place. “The Applicants have not clearly outlined the right which seeks protection before the court, what appears as a right is a smoke screen or simply put a bluff where the Applicants accuses the members of the Respondent to have engaged in a strike or industrial action, the Applicants are being untruthful before the court. In that there is no strike nor industrial action,” Mpho Chingapane who represented BDU stated. He highlighted that the Applicants had not filed any member roster ceasing performance within their contractual obligations.
Chingapane submitted that the matter is not urgent in that the applicant (DPSM) met with BDU on July 31, consequently meeting on August 4 as the last meeting in which both parties jointly made a concluding statement to refer the matter to mediation. “The Applicants with the Respondent on August 8 held mediation at Labour at Gaborone Block 8, where parties discussed issues. The mediator decided that the matter be deferred to August 30, giving both the DPSM and the three cooperating unions the time to meet and craft a position paper on whether they agree wholly or partially,” said Chingapane.
Chingapane further submited that the fact that BDU issued a statement notifying members to cease performing emergency calls, does not suffice to prompt the right seeking to be protected.
That is to say, a letter alone is not enough to prompt evidence that indeed there is a clear legal right seeking protection. “The Respondent has not announced that its members may cease performing essential service duties. The letter notified Respondent members of cessation of Call Duties which does not constitute cessation of essential service as noted in the replying affidavit.
Following from the above the Respondent begs the court to dismiss this interdict,” he stated. In his replying affidavit, BDU president, Kefilwe Selema submitted that the contract for call and the subsequent agreements regarding the performance of emergency call ended on July 31. Selema argued that the dispute is not concerning industrial action nor any violation of the Trade Dispute Acts, rather the dispute as alluded by the Applicant, arises from the issue of emergency call duty contract formation and the subsequent collapse of emergency call discussions.
“The Respondent submits that the issue of Emergency Call performance is not recognised by the Employment Act nor any Instruments governing Employment Relations in Botswana. The Respondent further submits that the parties have had interim agreements but there exists no agreement between the parties governing the operation or the function of call performance,” he stated.
The ruling
According to Mphetlhe, the issues that lie for determination are: Whether the respondent's members has withdrawn emergency call duties; If the answer to number 1 is in the positive then the next issue for determination is whether the actions of the respondent's members amount to a strike and or industrial action; Whether emergency call services fall under essential services; and Whether the applicants have satisfied the prerequisites of section 23(5) of the Trade disputes Act. “I have no doubt in my mind that some members of the respondent have ceased emergency call duties and their decision to do so was informed by the press release issued by the respondent. It may also be worth pointing out that there is no ambiguity in the wording of the press release which hitherto is still in operation as no evidence to the contrary has been adduced.
I am satisfied that the evidence adduced by both parties proof that some of the respondent's members have ceased emergency call services and accordingly rule as such'', said Mphetlhe. On whether the actions of the respondent's members amount to a strike and or industrial action, Mphetlhe said, “On August 1, 2023, the respondent by way of a press release communicated its decision to cease emergency call services to all and sundry. This was further reiterated in the closing agreement signed by the parties on August 4, 2023.
The conduct of the respondent through these documents falls squarely within the definition of industrial action and the court holds according that the respondents have engaged in an industrial action in violation of clause 14 of the recognition agreement.” Mphetlhe also found that the requirement to perform emergency call duty is part and parcel of doctors duties and held that these call duties are essential to the life of the community and therefore forms an integral part of doctors duties.
She said to divorce one from the other would be an absurdity and goes against the spirit and intent of the legislature in so far as it relates to essential services. On whether the matter was urgent, Mphetlhe said having considered the evidence adduced by both parties, “I am satisfied that the applicants did not rest on their laurel when it became apparent during the meeting of August 4, 2023 that the respondent was adamant to proceed withholding their service. I accordingly find that the applicants approached the court as soon as it became apparent that the respondent members have ceased emergency call services,” she said.