The Botswana Nurses Union yesterday lost a case in which they wanted the Court of Appeal (CoA) to overturn a High Court decision, which allowed government to overhaul the method used to promote Ministry of Health staff.
The union had appealed government’s move to externally advertise for promotional vacancies, instead of using the recommendations of heads of department, as was the case until July 2013. They argued that they were never consulted and given a hearing prior to the decision.
Justice Isaac Lesetedi however dismissed the appeal with costs saying that he was unable to find any legitimate expectation on the nurses’ part to be heard before internal advertisements were issued.
“There was no such agreement that there will be a prior hearing before the law. Nor was there any evidence of such mutual expectation,” he said.
Lesetedi said for a hearing to be sustainable it must be meaningful and there was no tangible evidence of any qualified member of the union having been prejudiced by the new recruitment system, when assuming legitimate expectation was proved.
He explained that the court would be reluctant to grant an interdict because its effect would substantially disrupt governmental functions.
“In this case, assuming an interdict was available, it would disrupt the workings of the Ministry of Health and the lives and careers of those whose careers would have been positively advanced either by promotion to the vacancies which have been advertised or by filling of vacancies which would have opened after the recruitment of those who have been promoted to that effect,” he said.
He told the nurses they could not have sought a permanent interdict against the government, more particularly in this case where the closing date of the advertisement had lapsed several months before the institution of the proceedings.
The union’s attorney, Tembeni Jeremiah had argued 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 method that had been 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 argued that the nurses 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 (High 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 state 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 argued that in terms of the 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 said the issue of legitimate expectation can only give rise to a legal right. “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.