The Botswana Nurses Union asked the Court of Appeal (CoA) yesterday to overturn a High Court decision, which allowed government to overhaul the method used to promote staff in the Health Ministry.
Two years ago, the High Court ruled in favour of government’s move to externally advertise for promotional posts, instead of using the recommendations of Heads of Department, as was the case until July 2013.
Before a three-judge CoA bench led by Justice Seth Twum, the union’s attorney, Tembeni Jeremiah said that the change in procedure would have required that the nurses be given a prior hearing, which they were never accorded.
“Because of the relationship between the parties there should have been prior consultation. The procedure is also discriminatory in the sense that those already in higher positions had benefited from the previous practice,” he said.
Jeremiah said government’s decision was also a departure from the practice that had been prevailing before them that was used to elevate those that were already within the system before extending the opportunity to those outside.
“The decision was unfair also because recommendations were already done when the ministry decided to advertise positions, making it unfair to those with lower qualifications but already in the recommendation list,” he submitted.
He further argued that they had a legitimate expectation that the old procedure would continue until there was proper consultation, understanding and agreement among the parties.
“With these grounds we request that the judgment by the court be set aside and be replaced by the order that the decision by the ministry to advertise positions within the Ministry of Health as advertised by a Savingram dated July 19, 2013 be reviewed and set aside”, he said.
However the government attorney Charles Gulubane countered that the government did not violate any of the sections of the Public Service Act.
“We did not violate the Act especially Section 7, which mandates that the employer must treat employees fairly in making decisions for the appointment of personnel into certain positions,” he said.
He also argued that in terms of Trade Disputes Act, disputes relating to promotions were disputes of interest and not disputes of right, therefore the government acted well within its discretionary powers.
Gulubane further said on the issue of legitimate expectation raised, it can only give rise to a legal right as such practice was shown to have existed for a very long time.
“In this case no such evidence had been adduced. Therefore the court a quo found that the union had no legitimate expectation in the matter that could be elevated to an enforceable right or expectation,” he said.
The court will issue judgement on February 5.