The union believes the health system has qualified individuals, a lot of whom are BONU members. The ministry earlier this month advertised vacancies titled: "EXTERNAL ADVERTISEMENT VACANCY CIRCULAR NO. 25 OF 2024" with nine vacancy codes. Unamused by the developments, BONU through Sharp Law Group, whisked the Ministry, the Directorate of Public Service Management (DPSM) and the Attorney General to the Industrial Court. BONU made an urgent application on June 20, 2024 interdicting external advertisement of D2 positions made on June 12, 2024. According to court documents, BONU firmly believes that the majority of their members employed under the DPSM have the necessary qualifications and experience to fill the vacant D2 positions at the MoH hence it was imperative to seek the intervention of the courts.
The attorneys state that their claim arises from grievances experienced by their client stemming from an internal advertisement made public on November 3, 2023 for the position of Principal Nursing Officer I. The said advert required Bachelor’s degree in general nursing or equivalent; registration with the Nursing and Midwifery Council of Botswana and in possession of a valid practicing license; and at least two years work experience as Principal Nursing Officer II or 10 years in a relevant field. The Union argues that there are a number of nurses currently employed under the MoH whose experience falls within the ambit of the requirements of the external advertisement. They went on to list 16 suitors with over 10 years of experience each, whom they state had applied for the post but none of them was shortlisted or called for an interview. They argue that the externally advertised positions' key performance areas include those which the said candidates had been doing. “The employees, having applied for the internal position, anticipated the standard procedure of job applications, which includes an interview process.
However to their astonishment, an external advertisement was issued for the same position they had applied for internally. Due to the confusion caused by this unexpected external advertisement, the complaints requested a meeting with the ministry to seek clarification. Despite their request, no response was provided hence the statutory notice,” they state, They wanted the matter to be deemed urgent dispensing with the forms and service provided for in the High Court Rules; that a Rule Nisi be and is hereby issued returnable soon; thereafter as Counsel may be heard calling upon the Respondents to show cause, if any, why, the following orders cannot be granted: An order interdicting and restraining the respondents from short-listing interviewees from the external advertisement and conducting interviews for the position of Principal Nursing Officer I as per the External Advertisement Vacancy Circular No. 25 of 2024 pending the filing and finalisation of the review application; The cost of the urgent application to be paid by the Respondents jointly and severally on attorney and client scale; and further and/or alternative relief. BONU was on Monday June 24, 2024 granted an interim order by Justice Galesite Baruti of Gaborone Industrial Court. He ordered as follows: A rule nisi is granted in the terms laid out in the draft order; The return date of this rule nisi is the 2nd July 2024 at 9:00 am; and Respondents shall file and serve their papers responding to the application not later than 27 June 2024.
Not first time
In May 2023, the Industrial Court of Botswana ruled in favour of BONU in a similar legal battle against the MoH. The court ordered the withdrawal of an advertisement for 12 vacancies of Principal Nursing Officer I - D2 (Temporary), which had sparked controversy due to its preference for retired nurses. The legal dispute was initiated by BONU, represented by Rantao Attorneys, through an urgent application filed at the Industrial Court on May 15, 2023. BONU contested the decision made by the Permanent Secretary in the MoH to advertise the vacancies, arguing that it violated the Public Service Act and various regulations governing the appointment criteria and merit-based selection processes. Stating its case, BONU said on or about March 29, the ministry, through a televised interview on the Botswana Television (Btv), made pronouncements regarding the re-employment of retired nurses as nursing coaches and mentors. The advertisement stated, amongst other things, that; applications are invited from suitably qualified nurses/midwives (preferably retired); there were 12 vacancies tenable: Princess Marina Hospital (5), Nyangabgwe Referral Hospital (five) and Sbrana Hospital (two); the salary will be at D2 salary scale; the benefits are severance pay and baggage allowance payable at the end of the temporary appointment, and, payment of 30% nurses’ overtime allowance and 10% post basic allowance; the qualifications for the post are: Degree in Nursing/Midwifery; Masters in Nursing/Midwifery would be an added advantage; post basic Diploma or Degree in Psychiatric Nursing; the experience required for the post is a minimum of 15 years post qualification. Central to BONU's case was the contention that the preference for retired nurses, as outlined in the advertisement, was in breach of Section 17 of the Public Service Act. According to this provision, the appointment criteria should be based on proven merit and suitability rather than retirement status.
BONU also argued that the advertisement failed to fulfil the requirement of publication in the Government Gazette, as mandated by Section 17 of the Act. In the court order issued on May 17, 2023, Justice Diratsagae Molomo declared the draft order presented by BONU as an official order of the court. Consequently, the advertisement for the 12 vacancies, published on April 26, 2023, was ordered to be withdrawn. The court emphasised that the parties involved should engage in discussions as per their Collective Labour Agreement, fostering a cooperative approach towards resolving the matter.
