Debswana dismissal- the aftermath (part 3)

| Friday March 16, 2007 00:00

Records indicate that 461 employees were dismissed for their involvement in the strike.  The company  reiterated its message that 'those dismissed were a group of employees who by their own involvement in the illegal strike action breached not only their contract of employment but also collective agreements between the parties by endangering the safety/health of their fellow employees and the community or the security of the mines and the product...All other non-essential services employees who participated in the illegal strike action have had appropriate disciplinary action taken against them,' stated a Debswana press release of 13 October 2004.

Debswana also moved swiftly to fill vacancies created by the 461 dismissals. In the press, the Company revealed that ' in Orapa 5,371 applications have been processed to date...At Jwaneng Mine over 6, 500 applications received for the 126 jobs advertised are being processed and 91 people have been given offer letters'.

Following the dismissal of the employees, the BMWU began a process of trying to engage  Debswana to have them re-hired. In a letter dated 27th August 2004, the
BMWU intimated that it would 'accept, in full and final settlement, the company's offer of a 10percent cost of living adjustment, a once off 10percent annualised bonus with a minimum of P3,500 and housing allowance (as agreed) in respect of the 2004/5 Wage negotiations' leading to a written agreement to be signed by both parties which would result in the reinstatement of all employees dismissed (without any exception whatsoever) for their action in the strike subject to the following:
a. Each employee receiving a 'Written Final Warning' in terms of which any participation in unlawful industrial action within a period of 12 months will result in immediate dismissal, subject to normal hearing procedures.

b. The applicant reserves the right to review the cases of all employees who were involved in the strike in consultation with a representative of a body regulating their respective professions in those cases where the company is of the opinion that a serious dereliction of duty has occurred, the company will be entitled to re-open the case and after an enquiry in terms of the disciplinary code, impose a more appropriate sanction subject to the right of representation by the union and all rights in terms of the existing disciplinary rights and procedures.

The draft agreement containing the above had been written with the assistance of its legal representatives the Union stated. The BMWU also sent a similarly worded letter to Debswana dated 31st August 2004. On 1st September 2004 the BMWU again wrote to Debswana Management requesting for the disciplinary records of those charged to help it propose alternatives leading to a settlement and also requested that house evictions not be carried out until the issue had been resolved.

On Saturday September 4 2004 the BMWU had written to Debswana informing the Company that all employees on strike would return to work on Monday September 06 2004 at the same time criticising the Debswana for declining 'past attempts to engage in meaningful negotiations to quell current conflict'. The return to work plan was premised on some of the following points:

a. Management offer of 10percent  together with other elements accepted by the Union on August, 25 2004 be placed on the table before the negotiations begin.

b. Management confirm in writing that it is receiving all employees back to work on Sunday 5 September 2004.

c. Management pledge not to victimise any of the returning employees. The Union has carried the heavy responsibility of urging employees to return to work and hopes that Management would not frustrate the hard earned effort.

d. That returning to work should not be misconstrued as succumbing to intimidatory threats from Management but as a deliberate decision all  ow parties time to resolve issues amicably in the interest of the nation at large.

e. That parties commit themselves to re-dedicate their energy to the negotiation process rather than indulge in the prevailing unproductive antagonism.

Return to work was also seen by the Union as necessary to restore peaceful industrial relations in the Debswana operations.

After the strike ended, correspondence also reveals that there was fallout within the Union itself. Tallman Modimane, Committee Member- Letlhakane Branch. 

The Union reacted to Modimane's stance by suspending him. 

Given the case by Debswana that Union leadership incited the strike and therefore should be charged, Modimane stated in his letter that 'two things can happen to them any time from now, (1) Imprisonment (2) Dismissal from Company Employment. They too must follow the dismissed employees'.

The BMWU continued to send correspondence to Management seeking a meeting to discuss issues which arose out of the   discuss the following issues:

a. Victimisation of employees.
b.Cancellation of ARV Therapy for dismissed employees.
c. Payment of terminal benefits for dismissed employees.
e. Termination of benefits for the dismissed employees.
f. Payment of salary increases and back-pays.
g. Removal of children of those dismissed from Debswana schools.

Former employees, payment of their benefits as well as the school's attendance of children of former employees dismissed as a result of the strike.

The press release of 1st September 2004 titled 'Dismissed Illegal Strikers to leave Debswana Accommodation' stressed that those dismissed were to leave company housing as per the Company Housing Policy and that legal proceedings would be instituted against those who declined to do so. Further, those who refused to leave Company housing would be charged market rates for accommodation, utilities and any other benefits they may continue to enjoy, whilst occupying company accommodation Debswana warned. The last evictions were conducted in May 2005. In the press release of 17 May 2005, 'Thirty-Eight Illegal tenants vacate company houses at the Orapa and Letlhakane Mines' Debswana revealed that initially there were 152 people who had to vacate company housing after being dismissed. By January 2005, 106 remained most of whom left after an out of court settlement leaving the 38 who were the last to be evicted in May 2005.

On the provision of ARV treatment, a Debswana statement of said that the company has a three month window   on company treatment while preparing to transfer to the Masa programme run by government or making private arrangements for treatment. Of those dismissed 33 were on ARV therapy and 28 were assisted to transfer to the Masa programme while the remaining 5 could not be traced', the Company stated. It thus denied terminating assistance to former employees abruptly regardless of their reason for leaving the organisation.

Regarding education facilities for children of those dismissed for their part in the strike, the company statement of 26 January 2005, 'Debswana education facilities also available to children of former employees' stated that while those children could be admitted on availability of space, such schools were a benefit to employees whose children received priority. Debswana has 5 privately run schools, 4 in Orapa and I in Jwaneng. The benefit ceases when one is no longer an employee. 'Debswana's commitment to the ex-employees terminated with their dismissal from the company.   that there would be school spaces required for the children of the newly recruited employees. Therefore it is no longer possible to accommodate the children of the expelled employees', the statement read.

Other company benefits which were terminated included scholarships awarded to children of employees who had been dismissed to the elite Maruapula private secondary school in Gaborone as well as local and international tertiary institutions.

In a generic letter dated 3 September 2005 to those dismissed but having children attending Debswana schools Management decided 'on humanitarian grounds and in the best interest of any of your children who are currently enrolled at a Debswana   schools. However, the parents would have to pay private fees 

Correspondence perused has also revealed that Debswana did ponder the issue of re-employing the dismissed strikers and sought legal advise from its lawyers Collins Newman & Co. In offering its opinion, the law firm considered what it viewed to be two key issues (25 September 2005):
a. Comparison between Botswana and South African legislation on the issue of re-employment.
b. Any possible challenges on Debswana's decision to re-employ any of the dismissed employees should that arise.
On the first point, Collins Newman & Co advised that although Botswana does not have the 'equivalent of a Section 186(d) of the South African LRA (Labour Relations Act), the Industrial Court in Botswana would most probably take the view that it has jurisdiction to hear disputes over re-employment regardless of the circumstances of how such a dispute arose.'

In relation to the second point that 'accordingly, it is safe to say that the Industrial Court is unlikely to shut the door to any of the dismissed strikers if they came forward challenging the fact that they had applied for new employment, but that their colleagues ex-strikers standing in similar circumstances have been re-employed by the Company whilst they have not. The Company would then have to justify the re-employment of some of the dismissed strikes and why this was done in respect of those re-employed (not the others). The Company could therefore potentially face, in a very long and protracted litigation, allegations of discrimination, unfairness, inconsistency, lack of transparency, nepotism and favouratism. The list is endless'.

To avoid putting itself into an untenable position and accusations as those above, the position of the Company was to allow former employees to reapply along with scores of others, some of them seeking employment with Debswana for the first time, for consideration.

In the meantime, the BMWU continued to press for the reinstatement of the dismissed 461 employees as revealed in a letter dated 07 October 2004 (Re: Dismissed Employees) . If that were not to happen, Debswana was challenged to dismiss all others who had taken part in the strike. This was a view supported by the Union the letter said.
 A similarly worded letter was dispatched to the Debswana Deputy Managing Director on 25th October 2005 (Re: Emergency Meeting-Attempt to Restore Order In The Mines).

The letter also pointed to:
(a) The on-going arbitrary dismissals and suspension of our members without regard to procedural and substantive fairness.
(b) The use of the Police, Crime and Investigation Unit Officers to intimidate and harass employees on baseless grounds.
(c) Failure by Management to discipline Managers who contravene the disciplinary code like they always do when Union members are in breach.
(d) Deliberate erosion of the JNCC and ONCC structures by Management in favour of the courts. It is the Union contention that most problems can be resolved amicably through the existing structures without going to Court.

The Office of the Commissioner of Labour was also brought in to the frame to arbitrate on the issue of the dismissed 461 employees. 

However, the BMWU was soon to express its displeasure with the Commissioner of Labour in a letter to the Permanent Secretary in Ministry of Labour and Home Affairs dated 9   the Deputy Commissioner of Labour. 

There was also an attempt by the BMWU to draw the Vice President of Botswana Lt. General Seretse Khama Ian Khama.  

On the 15th December 2004, a delegation of Representatives of Debswana Dismissed Employees met with the newly appointed Debswana Managing Director Blackie Marole in the presence of the Employee Relations Manager Jacob Sesinyi. According to the record of that meeting, they sought to be pardoned because 'their actions were out of emotions, ignorance and conflicting information they received from the Union Leadership and Management'.  In his response, the Managing Director pointed out that vacancies had been filled and that their request was therefore not an easy one.

 4.5 Internal Disciplinary Action
Following the conclusion of the Industrial Court battle, Debswana then launched internal disciplinary hearing against members of the Union who remained in its employ. Charges centered on having influenced or taken part in the strike. Thus the charge was stated as 'actively engaged in organising, inciting, provoking, encouraging and instigating   4, 2005 to one of the Union leaders Chimbidzani Chimidza.   were condemned by various observers, Debswana maintained that they had nothing to do with the Company losing its contempt case against the Union ( Mmegi, Thursday 14 April 2005, 'Debswana workers face disciplinary action'). Some of those who were later dismissed include Union leaders Jack Tlhagale and Chimbidzani Chimidza leading to speculation that the Company's actions were personal.

Various Unions under the Botswana Federation of Trade Unions also sent a petition to the President as well as Debswana  after the dismissal of the Union leaders which stated the following: 'We demand the unconditional reinstatement of the union leadership recently dismissed at both BCL and Debswana mines. Government must immediately call upon Debswana to stop the ongoing disciplinary hearings, which are characterised by intimidation and victimisation of workers. We demand that government set up an independent commission of inquiry to investigate the breakdown of labour relations at BCL/Debswana, which caused disharmony,' (Mmegi, Thursday 9 June 2005). However, in the Debswana Annual Review of 2004, the Debswana Managing Director Blackie Marole acknowledged that some employees were not happy with the company in 2004 and showed this by going on strike. In trying to avert such a situation from occurring, the Managing Director recorded that 'perhaps in future it would be helpful if we move away from handling issues by negotiation, to rather spending more of our time in workshops and seminars where we seek to have a common understanding of issues before we get to the negotiating table-by which time matters between workers and management are already tense. This would help to ensure, for example, that the term 'performance bonus' for workers and management means the same,' (10).

In a section in the Annual Review of 2004 dedicated to the strike, the Group Human Resources Manager Paul Gahagan noted that a strike 'indicates an absolute breakdown in trust between management and workers,'(30). The Company said in the Annual Review that in an attempt to address issues emanating from the strike, it was contemplating a number of initiatives such as relationship-building exercises with the Union which would be facilitated by a third-party. In order to assist employees with understanding labour laws the company also mentioned in the Annual Review that it would suggest the setting up of legal advisory clinics on the mine also to be 'operated by a third-party, a non-governmental type of organisation, that could provide employees with impartial legal advise on labour as well as personal matters,'.

4.6  Media coverage of the Debswana strike
Debswana/BMWU debacle attracted intense media attention. David Weiss (1996) in his Beyond the Walls of Conflict: Negotiating Mutual Gains for Unions and Management  observes that 'Union-management wars intrigue people more than union-management peace. War captures media attention. It remains front-page news for days if not weeks. The passion to have winners and losers draws the interest of the public and receives intense attention' 

Reports indicate that among those who castigated Debswana for its actions is then Leader of the Opposition Akanyang Magama who told those attending May Day Celebrations of 2005  that ' we are also surprised  at how Debswana Mine could fire BMWU national chairperson Chimbidzani Chimidza after it lost the case in court. This is a desperate attempt by Debswana Management to intimidate workers.

Only mass solidarity and mass action will force the mine to recognise labour legislations and respect workers' rights' (Mmegi, 04 May 2005, 'Magama calls for new labour laws'. Other comments on the dismissals were noted as follows in the Mmegi of Friday 06 May 2005, 'Leaders condemn Debswana sackings':
a. 'This is a clear victimisation of the union leadership. The decision by Debswana is unfortunate and ill-advised. This is a grave decision', President of the Botswana Federation of Secondary School Teachers (BOFESETE), Baboloki Tlale.

b. Ronald Baipidi, President of the Botswana Federation of Trade Unions, described the action as outrageous.

c. The Botswana Unified Local Government Service Association released a statement condemning the action by Debswana 'as an inhuman and arrogant move meant to intimidate workers'.

d. The Botswana Congress Party through its Publicity Secretary and Member of Parliament for Gaborone Central Dumelang Saleshando said Debswana was abusing its financial muscle and appeared to be pursuing a vengeance agenda. Such action the party stated, would have a negative impact in the development of labour unions in the country. Just before receiving his dismissal letter, Union leader Chimbidzani Chimidza had also written an open letter to the  Debswana Managing Director Blackie Marole in one of the local newspapers. Mmegi newspaper also adopted a critical approach to the dismissal of the Union leaders by Debswana. In its Editorial of Friday 06 May 2005 titled 'Debswana is high handed', the paper stated that: 'Debswana Diamond Company must be condemned for its dictatorial and heartless handling of industrial relations with the Botswana Mining Workers Union (BMWU).  The company should be denounced for acting in bad faith by sacking union officials after it lost in the Industrial Court. The crackdown on the BMWU leaders in the employ of Debswana and other employees engaged in last year's strike is detrimental to the union movement in the country.'

There is, in fact, a historical link or relationship between the BMWU and Mmegi newspaper.  In a commemorative article titled ' Mine Union saves Mmegi' by well known unionist  Elias B. Mbonini which came out as part the Mmegi 21st Anniversary Supplement dated November 2005, he revealed that 'in the late 80s Botswana Mine Workers Union (BMWU) was approached by the then executive secretary of Dikgang newspaper, Metlhaetsile Leepile, and a board member, Butler Phirie, who informed us that Mmegi was in serious financial problems and that there was no cash flow to sustain the paper for the next month. 

Discussions were held with the National Executive Committee of the BMWU. Mmegi needed P50 000 immediately to rescue the paper. The union looked at the request with an open mind and came to the conclusion that it would be a terrible blow to Botswana if Mmegi was left to go down as the paper was playing a critical role in the dissemination of information to the society as a whole,'(6).

 It was then that the BMWU was offered a 30 percent shareholding in the paper, not insignificant by any means.