Govt and trade unions face off in court again

ISAIAH MOREWAGAE
Staff Writer | Monday January 21, 2013 00:00

 

Aggrieved by Dingake's judgement, government appealed the ruling seeking to overturn Dingake's decision.BOFEPUSU is an umbrella body representing Botswana Public Employees Union (BOPEU); the Botswana Teachers Union (BTU); the Botswana Secondary Teachers Union (BOSETU); the Botswana Land Boards, Local Authorities and Health Workers' Union (BLLAHWU), and the National Amalgamated Local & Central Government Workers 'Union (NALCGWU).

On April 18, 2011 government employees belonging to three unions embarked on a strike in support of a wage increase. Some of the employees included Essential Service Employees (ESE). Both the appellant and the respondents have engaged top-notch senior advocates from South Africa to fight on their behalf. Collins Newman and Company, representing government has sub-contracted Advocate Anton Myburgh, Senior Counsel (SC) and Advocate Tembeka Ngcukaitobi.

Fighting in the respondent's corner is Collins Chilisa Consultants who have engaged Advocate Wim Trengove SC and Advocate Alec Freund SC. In her heads of argument, the appellant says the employer's predictable response to the declaration of the strike as being illegal was to issue an ultimatum (it is this that the respondents sought to avoid through their opposition to the application for an interdict).  'The respondents knew fully well of the employer's decision to do so with their response being to note an appeal against the judgment of 6 May 2011, with a view to suspending the order and reviving the strike.

Throughout this period (April 26 to May 10 2011) the respondents chose not to engage over the ultimatum, but rather to attempt to force the employer to abandon it through legal proceedings,' reads the appellant's heads of argument.The appellant continues that on paper, there appears to be no allegation that the respondents themselves did not know of the ultimatum issued on the morning of May 12, 2011 - and it is clear that they did nothing to communicate this to their members.  She submits that Justice Dingake's finding against the employer in this regard is incongruous.

In conclusion, the appellant reasons that it was reasonable for the employer not to afford the ESE a disciplinary enquiry before dismissal and the attenuated form of procedural fairness afforded the ESEs was in compliance with Botswana law.  'In the premises, we submit that the appeal be granted with costs, including the costs of two counsel.'

The respondents say on May 16, 2011 the government announced the dismissal of the ESEs who were on strike and had failed to report for duty that day. They say that the general notice of dismissal of May 16, 2011 stated that all ESEs who had failed to report for duty that day had been dismissed. 'All six warnings were issued in press statements during the strike before the employees were dismissed. A common feature of all these warnings was that the government did not communicate them to the unions or their members. It issued the warnings by public statements, which it assumed the media would convey to the public and reach the striking workers.

It is common cause that there was no correspondence from the government to the unions between April 26 and May 16, 2011 (the date of the dismissals),' reads the respondents' heads of argument. The respondents further submit that the judgment makes it clear that the High Court did not criticise the employer for not having convened individual disciplinary enquiries in every case.  'What it did find was that the employer ought to have afforded an opportunity for the employees to put their case through their unions, in writing, if necessary,' the respondents argue.

They also submit that the words 'engage in an essential service' are capable of being construed in a manner compatible with Botswana's International Labour Organisation (ILO) obligations, that is, in a manner which does not include categories of employees such as hospital labourers and gardeners. 'In the premises it is submitted that the appeal should be dismissed, with costs, including the costs of two counsels.'