Court rules in favour of BNYC in P2m suit
Sharon Mathala | Friday July 29, 2016 15:44
The court overturned the decision by Lobatse High Court Judge Zaine Kebonang, which ruled in favour of the axed employees.
He said that BNYC by offering the former employees a three-year contract of employment had created a legitimate expectation that the two would have continued employment, barring anything unforeseen, for at least three years. BNYC challenged this at the CoA arguing that the duo’s dismissal was lawful and they were therefore not entitled to damages.
“The substantive and procedural fairness was exercised during termination. The contracts of the dismissed clearly stated that they were not entitled to a hearing prior to the receipt of termination,” he said.
Opposing the BNYC’s argument Mooketsi Segaisi had submitted that though the Employment Act does not particularise the procedural steps to be taken by the employer before an employee is dismissed for misconduct, the rules of natural justice must always be invoked in such cases.
However, the three-man bench made of Justice Isaac Lesetedi, Justice Craig Howie and Justice Jacobus Brand was of the view that the termination of their contract was lawful.
“The respondents were each paid the required one month’s salary in lieu of notice as required under clause 14 of the employment contracts. That rendered the termination lawful. In the event the issue of damages does not arise.”
The two former employees had also argued that BNYC was required by law to provide a reason for the termination of employment to determine if the reason was one susceptible of being dealt with under the laid out disciplinary process.
However the CoA disagreed; “there is no substance in this submission. The phrase “for whatever reason” gives each of the parties the right to terminate contract of employment even for a reason, which is not valid. No purpose could therefore have been served by going through a disciplinary enquiry when the outcome of such enquiry would have served no purpose as the validity or otherwise of the reason was of no consequence.”
“The lawful termination of a contract for a fixed period is not regulated by stature (in this case the employment Act). In the event the common law applies under common law the relationship of the employer and the employee in the circumstances falls within the ambit of the law of contract and is governed by the agreement between the parties.”
The two former employees, Goitse Mpolokang, a former events officer and Tibapi Gucha wanted close to a million pula each from their former employer BNYC, after what they said was a premature termination of their contracts.
The duo, Mpolokang and Gunda were paid a monthly salary of P19,000 and P23,000 respectively whilst employed by BNYC. They wanted BNYC to pay contractual damages for the unexpired period of their contracts, which was to last at least for three years and be paid damages for loss of employment, emotional distress, embarrassment, anxiety and shock.
The two contended that their dismissal was substantively and procedurally unfair as there were no valid grounds justifying termination nor were they given a hearing before their contracts were terminated.