DPSM partly succeeds in ‘Call to duty’ appeal
Innocent Selatlhwa | Monday November 20, 2023 06:00
A panel of three Court of Appeal (CoA) judges, Justices Modiri Letsididi, Goemekgabo Tebogo- Maruping and Tshegofatso Mogomotsi, concurred in a ruling delivered on Thursday that the employer’s appeal succeeds in part in respect of two parts of the Industrial Court order which must reflect that the time spent on call by the nurses and midwives be regarded as working time and where appropriate as overtime, if they are required to be physically present at the health facility.
The government, through the DPSM, lost the case against the nurses and decided to lodge an appeal in an attempt to cling to the long standing ‘Call to Duty’ practice, which the nurses have argued is an abuse they have endured for a long time. In the ‘Call to Duty’, nurses are expected to report to duty when required to do so beyond their working hours. In the lower court, the nurses won the case where they had taken their employer to court seeking the discontinuation of the ‘Call to Duty’.
Through the Botswana Nurses Union (BONU), the health workers argued that the ‘Call to Duty’ is illegal, encroaches on nurses' rest period and exposes them to abuse by DPSM. The DPSM, represented by Oaitse Rammidi in its grounds of appeal, argued that the ‘Call to Duty’ has been part of the health profession and there is no way the Employment Act has been breached. Rammidi explained that the ‘Call to Duty’ has been catered for in the nurses’ fixed 30% overtime allowance contrary to allegations by the nurses that it was not paid for.
“The ‘Call to Duty’ arrangement is catered for in the employees’ 30% overtime allowance, which is also in line with the Employment Act. This simply means the Act has not been breached and that we have been compliant with it,” he said. However, the nurses are refusing to agree with the government that they are catered for and expected to work beyond their required working hours. BONU lawyer, Mboki Chilisa, argued that the ‘Call to Duty’ ought to be paid as it forces the nurses to work overtime.
He explained that the arrangement made by the DPSM was not reason enough for the nurses, more so that they are expected to go beyond the call of duty without being paid accordingly. “The Employment Act is clear in terms of how employees should be treated and it is not different for nurses.
The government needs to pay or discontinue the ‘Call to Duty’ at once,” he said. Industrial court orders In his judgment, Justice Baruti had ordered that the entire time that nurses and midwives are rostered to be on call, constitutes working time for which they must be paid for; that the time that a nurse or a midwife accompanies a patient on referral from one medical facility to another medical facility, and back, constitutes working time for which he or she must be paid; DPSM shall when computing overtime entitlement for nurses and midwives, take into account the time they are rostered to be on call and shall fully comply with Section 95(5) of the Employment Act; and DPSM shall when computing overtime entitlement for nurses and midwives, take into account the time that a nurse or midwife accompanies a patient on referral from one facility to another and back, and fully comply with Section 95(5) of the Employment Act; “Where the overtime worked exceeds the 30% commuted overtime allowance, the nurses or midwives so entitled shall be paid the excess after the overtime has been calculated using the formula stipulated in Section 95(5) of the Employment Act,” Justice Baruti ordered. The successful parts of the appeal The three justices ordered that the said employer’s appeal succeeds in part in respect of two parts of the Industrial Court order as below:
1. The entire time that nurses and midwives are rostered to be on call constitutes working time for which they must be paid. According to the justices, there is no doubt that the Judge at the lower court was in error in making the declaratory order.
“In the first place the order is too broad and ignores the reality at the work place that an employee may be rostered to be on call but fall sick, have to go on emergency leave or rest and otherwise be indisposed to discharge his obligations. A finding that such an employee must be deemed to have been working and paid for merely being rostered and on call when he had not been engaged in active service would be ill advised,” they stated. The judges further found that the on call declaratory order ignores Botswana law and the sensible approaches in the Namibian and European cases, which require that, a distinction, must be made between active and non- active on call duty. “There is no difficulty with a declaratory order that time spent on call by the nurses and midwives be regarded as working time, and where appropriate as overtime, if they are required to be physically present at the health facility. It is the time linked to the actual call to duty and provision of health care services, which will be regarded as working time and if after hours as overtime,” they stated. 2. DPSM shall when computing overtime entitlement for nurses and midwives, take into account the time they are rostered to be on call and shall fully comply with Section 95(5) of the Employment Act.
The justices are of the view that the declaratory order was made in error by the lower court and cannot stand as it is for the reasons already outlined above. “The same applies to this particular declaratory order. It cannot stand as it is,” the judges stated. All the other orders from Baruti stood as the CoA justices were in agreement with the lower court.