Court to determine US-Batswana pay dispute

Staff Writer | Thursday June 5, 2014 08:57

The case has dragged on since 2007, when 16 Batswana employed by the United States Agency for International Development (USAID) were retrenched. USAID has no distinct legal personality from that of the US government. The employees decided to take the matter up with the Industrial Court, arguing that their retrenchment was unnecessary. They said that the retrenchment was procedurally unfair in that the ‘last in, first out’ rule was not followed. The applicants demanded that the American government pay them separation packages in accordance with a 2002 Handbook for Locally Employed Staff, which formed part of the employment contract between the parties and was to be followed in the event of a retrenchment.

A letter written to the employees by former Foreign Affairs permanent secretary, Charles Ntwaagae says the position of the US government in 2007 was that it had reached the limit in terms of the time it had invested in the matter. Hence the US was disinclined to pursue the matter further.  “In the event that you wish your terminal benefits (to be) paid on the basis of the formula in the 2002 Hand Book, they would like you to refund the difference between what you have been paid and the calculation resulting from use of the formula in the 2002 Handbook. They still contend that the formula they applied is far more generous than the formula contained in the 2002 Handbook,” Ntwaagae wrote.

The case was complicated by the fact that the defendants were unable to serve the United States, as a sovereign state maintaining a presence in Botswana through its diplomatic mission, with their intent to sue. This is because the US offices and premises are considered immune from the service of such summons.  However, following a Justice Leatile Dambe’s ruling, the US government was finally served with the summons in 2011 through the Botswana Foreign Affairs Ministry.