BOPEU Ordered To Pay Tswaipe For Unfair Dismissal

Goitsemodimo Kaelo | Monday September 24, 2018 14:32

 

The troubled union, which at some point was considered one of the best-run unions, has been enduring a series of court battles, either with former employees, members and lately the bickering by the leadership.   The union employed Tswaipe in 2014, but his contract was terminated two years later in 2016 after he was accused of disclosing confidential information of the union on an Internet chat group called Strategy Room 14. Following the termination of his indefinite period contract, Tswaipe approached the court alleging that the dismissal was procedurally and substantively unfair.

This week Industrial Court judge, Galesiti Baruti ruled in favour of Tswaipe and ordered BOPEU to pay him an amount of P350,919 being 12 months of his salary as compensation for a procedurally and substantively unfair dismissal. He said the remedy of reinstatement is not appropriate under the circumstances. “Respondent shall pay the applicant the amount of P350,919 directly into his bank account or by way of a cheque within 14 days from today. The respondent shall, within 14 days from today, issue applicant with a certificate of employment,” Baruti said. Justice Baruti said the respondent did not comply with clause 11.1.2 of the disciplinary policy, which obligates it not to dismiss an employee unless he or she has received previous warnings.

“The applicant was shown the door after the hearing although he had no previous warnings. The severity of the offence is such that it did not warrant a dismissal given that it was only a serious offence, and not a dismissible offence. Furthermore, the disciplinary action was not progressive,” he added. Moreover, he stated that the union has violated its own disciplinary code by dismissing the applicant for having committed a serious offence whose sanctions are warnings, reduction in salary, demotion and or punitive suspension.

He indicated that the applicant never committed and was never charged with a dismissible offence. He outlined that for the respondent to charge the applicant with a serious offence and thereafter impose a more severe penalty of dismissal is an act of procedural irregularity. Another irregularity, he said, was that the general secretary instead of deputy general secretary dismissed the applicant. Baruti said the applicant was never furnished with copies of evidence material that was used to fire him. 

Regarding the issue of suspension, Baruti also said that it was unprocedural and unfair. He said that this has been taken into consideration when deciding on the quantum of compensation. Amongst the reliefs that Tswaipe were seeking included an order declaring the termination of employment of applicant by the respondents unfair and unlawful that his suspension from employment by respondent on the October 14, 2016 was without basis in law and done in bad faith. 

He also wanted an order for reinstatement based in terms of the Trade Disputes Act CAP: 48:02 or alternatively, an order to pay 15 months compensation in lieu of reinstatement, to which he claims entitlement, in terms of the Trade Disputes Act, CAP: 48:02, computed on the basis of applicant’s last salary and responsibility level at the time of termination of employment, for the actual pecuniary loss suffered by applicant as a result of wrongful dismissal. 

Tswaipe was also seeking an order for the respondent to reinstate the employer’s portion of the applicant’s pension benefits, which were forfeited on account of the wrongful dismissal and an order to be paid any other employment benefits due.  He also wanted the court to order the respondent in terms of Section 24 of the Employment Act (CAP:47:01), Laws of Botswana, to issue him a Certificate of Employment to applicant, which certificate shall reflect the expanded role, duties and responsibilities as at the time of termination of employment and be in such terms not unfavourable to the applicant.