Court dismisses urgency of BOPEU case against Stats Botswana
Mpho Mokwape | Wednesday April 22, 2015 14:19
The union also accused the management of Statistics Botswana of re-structuring and outsourcing posts within the company without consultation.
Judge Virgil Vergeer dismissed the application on the basis of urgency and not the merits. “The matter is not urgent and the court is satisfied in the circumstances and on the undisputed facts that the applicant has failed to establish any urgency,’’ he said. To
Vergeer noted that the matter of urgency arose when the applicant’s claimed that they only realised on March 24, 2015 that Statistics Botswana was tendering for the provision of cleaning services, after failing to renew employee’s contracts.
“The court finds that on the undisputed facts that the applicants’ members were aware as from January 13, 2015, and that they were again made aware that at the latest that their contracts of employment were ending on March 31, 2015 therefore Statistics had every right to tender,” he said.
On the issue of contempt of court, Vergeer said it did not hold as the invitation to tender was issued subsequent to February 18, 2015.
He said the court found that the invitation to tender did not amount to a staff circular or correspondence amending terms and conditions of service.
The judge added that the applicant’s contention that Statistics Botswana have breached, or are in contempt of court should be rejected on the basis that there was no clear evidence of such.
“There is no such evidence on papers before court and as such I can not entertain it,” he said. BOPEU had gone to court two weeks ago, seeking an urgent application to stop the Statistics Botswana from restructuring and outsourcing services.
BOPEU said the advertising and awarding a tender resulted in the drivers and cleaners losing their jobs, despite an order preventing such action, thus wanted Statistics Botswana management held in contempt of court.
The employees were hired on three-year contracts, which expired on March 30, 2015.
Their attorney Odirile Otto Itumeleng argued that Statistics Botswana management failed to engage the union for bargaining and negotiations. “The posts are still there, they have not been cancelled like the company is claiming and they are already filling those posts while they could have negotiated with the employees whose contracts were expiring,” he argued.
Itumeleng further argued that the company re-structured and outsourced the posts going against a court order, which interdicted Statistics Botswana from further implementing its policies without the presence of the union.
According to the interim court order that was issued on February 18, 2015 and made final on March 9, 2015, Statistics Botswana were interdicted, restrained and prohibited from carrying out or implementation memo canceling overtime allowance. The company was also prohibited from continuing to issue staff circulars and or any correspondence unilaterally amending or varying terms and conditions of service.
However Thabiso Tafila, legal representative of Statistics Botswana, argued that the application was not urgent and therefore should be dismissed with costs.
“The order we are seeking is that there is no urgency on the matter and it should be dismissed because my client was exercising his discretion, the former employees are just holding my client in ransom unnecessarily and preventing them from implementing its policies,” he said. Tafila said the applicants had, for a long time, known about the ending of their contracts and that they did nothing to address whatever was bothering them.
He said the employees were hired on a three-year basis and they knew that the time would come when their contracts would expire and not be renewed.
“They were informed that their contracts would expire and that their posts would be outsourced as the company was looking to save costs, they were even engaged in several meetings as a reminder to the expiry of their contracts and 10 posts were opened for all drivers to apply and those that were not taken were told that their job was finished,” he said.
Tafila said Statistics Botswana had no legal obligation to involve the union on the ending of the contracts.
“The company was simply implementing its policies that have been in place and what would give the court a legal right to interfere with the business in making economically viable decision for sustainability and growth,” he argued.
He said the applicant’s contention had no bearing on the order that was issued as the policies that were implemented had been introduced a long time ago before the order was even issued and that he did not see any reason why the company should stop outsourcing the posts.