Former BR employee sues for unfair dismissal

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LOBATSE: High Court judge, Godfrey Radijeng heard how former Botswana Railways (BR) and Botswana Defence Force (BDF) employee, Ofentse Kgolagano was dismissed from his duties in a case in which the applicant is seeking a review of the decision.

The applicant dragged BR to court seeking its interference after being dismissed from his duties as a supply chain manager after only four months in the job. He was dismissed on allegations that he was still a BDF employee at the time of commencing duties at BR.

BR through their CEO, Dominic Ntwaagae terminated the applicant’s employment because he failed to disclose that he was still under the employment of the BDF at the beginning of work on March 4, 2016. BR was of the view that Kgolagano deserted his army duties and it is an offence to assist a deserter. In the letter dated July 25, 2016, BR CEO also highlighted that the applicant only stated that he was lawfully discharged from his army duties.

BR said his contract with the parastatal was a clear violation of the law, that his employment was illegal and void at the beginning and that BR was entitled to cancel the employment contract. BR consequently withheld its terminal benefits against the applicant and said that it’s within their entitlement to demand a refund of salaries paid since employment contract was unlawful.

In his court papers, Kgolagano seeks the court to set aside or review the decision taken by BR on the basis that terminating his employment contract and accompanying benefits was improper, not procedural, unreasonable and unlawful.

In addition, the applicant seeks the court to issue an order that his removal from office amounted to spoliation of his employment rights, which he had lawful possession of. Kgolagano also wants the court to order BR to reinstate him into his office.

Attorney David Keganne of M.D Keganne attorney’s represented the applicant.

“They are arbitrary, oppressive, unfair and capricious especially that the reasons given have no basis at all. The decision was irrational and bad in law. The applicant had a legitimate expectation to be heard before a decision adverse to him was made.  It is an abuse of power in that the decision maker exceeded his discretionary powers.

“Even soon after the termination decision was made, the applicant within 30 days thereof wrote explaining what transpired in the interim and showed or he even confirmed the fact that his resignation from the army was lawful, a point that the applicant always insisted on and never relented,’’ Keganne said.  The attorney further informed the court that the applicant had not failed to disclose his employment with the BDF and that he never deserted the army but rather resigned lawfully.

“Applicant employment with Botswana Railways was not a clear violation of the law, since the employment was legal and valid from the beginning and that the foregoing therefore did not entitle Botswana Railways to cancel employment. Furthermore, the applicants averment that he was not given a fair hearing is not contested,” he said.

Attorney Joseph Akoonyatse of Akoonyatse attorney’s represented Botswana Railways. Akoonyatse said the employer did not have any trust on the applicant since he held all the information and kept both parties in the dark.

“The relationship between the employer and the applicant was totally dysfunctional. He failed least to disclose to the employer that he had issues to solve with the BDF before signing the contract. He just did things the military style”. Akoonyatse said.

Judgment will be delivered on March 10.

Editor's Comment
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