Industrial Court has dismissed an application in which suspended deputy Chief Executive Officer (CEO) of Botswana Qualifications Authority (BQA), Selebo Jobe wanted an interdiction of the proceedings for her scheduled disciplinary hearing for misconduct.
Jobe, before her application was dismissed, she was accusing the chairperson of the panel presiding over her disciplinary hearing of bias against her and wanted the court intervention.
when dismissing the application Judge Isaac Bahuma said there was no explicit and exceptional reasons raised for urgency on the matter and interdiction.“The applicant has failed to prove that in the event the biasness and delay she is complaining about results in a finding adverse to her, she has o alternative remedy. The urgent application is therefore dismissed,” he said.
Bahuma said the remedy of reistatement was technically available to the applicant and that she may sought that provided she is not happy with the outcome of the hearing .
Meanwhile Jobe who was suspended last year September with other four executive managers approached the Industrial Court on Tuesday asking for an interdict of the proceedings of her scheduled disciplinary hearing on grounds that she would not get a fair hearing should the matter be heard.
She approached Court on urgency arguing that the disciplinary hearings are in the first instance time barred and that the chairperson elected to preside over the disciplinary hearing lacks impartiality.
According to her founding affidavit, Jobe says she will not have a fair hearing because the chairperson in question had already exhibited that he is biased against her.. “The chairperson has already demonstrated that he cannot exercise his judgment impartially by ruling that I had misconducted myself because I was not at my place of residence at the time documents were delivered to her and had subsequently contacted the CEO,” she said. Jobe explained that the chairperson and the panel have been engaged to deal with the written charges proffered against her and not any other conduct and that they had no jurisdiction to determine whether her actions on 14 May 2021 of not being home when they driver went to drop documents constituted misconduct.
She said she did not commit any misconduct and that she called to seek guidance from her superior which by any stretch of imagination cannot be considered a misconduct.
“Firstly the chairperson made an adverse finding against me in respect of the events on 14 May 2021. He did so without affording me an opportunity to make representations. Furthermore he has been engaged to deal with the specific charges laid against me. He therefore had no jurisdiction to determine matters outside the charges laid against me,” she said.
Further the deputy CEO said there has been a delay with the disciplinary hearing, as the employer did not hold inquiry within the
“The BQA conditions of service prescribe a specific time within which the Respondent is to have convened an enquiry following knowledge of the misconduct. I responded to the show cause letter by 3 March 2021. There is no reason or explanation for inviting me to an enquiry two months following receipt of my response. The delay in the circumstances is contrary to the conditions of service. It is excessive and it is inexcusable,” she noted.
She explained that not only has the employer delayed in bringing the proceedings it further delayed in furnishing the documents necessary for her to prepare my defense noting that there has already been two postponements to allow the employer to furnish her with the requisite documents.
Jobe’s attorney Sthathani Somolekae told court that her client has a clear right to protection in this matter because the conduct of the employer violated her right to prompt disciplinary hearing/action in terms of the BQA conditions of service and well as her right to a fair hearing.
Somolekae pointed out that her client stood to suffer irreparable harm if the conduct of the employer complained about was permitted to continue without being stopped more so that other than an interdict, there was no other satisfactory remedy open which will afford the client adequate protection from mischief perpetrated against her.
“Finally, the balance of convenience in this matter is in favour of my client because the offences that she has been charged with are dismissible offences, which require any inquiry into the truthfulness thereof to be properly constituted,” she said through her lawyer.
On the other hand, BAQ denied being biased against Jobe as she had been given time to prepare since she knew about the disciplinary hearing long time ago. Its attorney Thembani Jeremiah told Court that the interdict was not necessary because she had other remedies even after disciplinary hearing. “She has other remedies if she feels prejudiced after the hearing, she should allow the process to complete and if she is not happy she can then approach court for the remedy she wishes for’’, the lawyer said.
He explained that the interdict should not be granted as Jobe has been aware of the hearing and that she had plenty of time to prepare and that there was no urgency in the matter.