Another essential services judgement next week

OARABILE MOSIKARE
Staff Writer | Friday March 15, 2013 00:00

 

Court of Appeal Judge President Ian Kirby on Wednesday told a packed courtroom that they were nearly finished with this judgement and would deliver it during the course of next week.Kirby was quick to state that next week's judgement would have nothing to do with the one delivered on Wednesday. On Wednesday, the Court of Appeal dealt the essential services workers a death blow by ruling that their participation in the industrial action in 2011 was unlawful.

The background to the appeal against Dingake's judgement is that on April 18, 2011 government employees belonging to three unions embarked on a strike in support of a pay rise. Some of the employees included Essential Service Employees (ESE). In its heads of argument, the appellant (government) said 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 judgement 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 continued that in the papers, 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.The state submits that Justice Dingake's finding against the employer in this regard is incongruous.

In conclusion, the appellant reasoned that it was reasonable for the employer not to afford the ESE a disciplinary inquiry 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 counsels.' The respondents (unions) said on May 16, 2011 government announced the dismissal of the ESEs who were on strike and had failed to report for duty that day. 

They said 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 course of 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 so to 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 submitted that the judgement makes it clear that the High Court did not criticise the employer for not having convened individual disciplinary inquiries 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 argued. 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 like hospital labourers and gardeners. 'In the premises it is submitted that the appeal should be dismissed, with costs, including the costs of two counsels.'