Employment 2020

Last Updated September 08, 2020

Botswana

Law and Practice

Authors



Armstrongs was established in 1983 and specialises in all aspects of corporate and commercial law, including capital raising, listings, corporate and trade finance, competition law, banking and financial services, M&A, bonds and other debt or capital instruments, rights issues, marketable investment instruments, listed securities, mining and resources, energy, tax, employment and human resources, privatisation and public-private partnerships. The firm comprises of three partners and eight attorneys, who handle both commercial and litigation aspects of the firm. The firm undertakes a majority of employment cases, representing mostly employers from across all sectors of the economy in Botswana. One of the partners, Moemedi Junior Tafa, is one of the leading lawyers in employment law. Over the years, Tafa has appeared before the Industrial Court, High Court and Court of Appeal and acted in cases that have contributed significantly to the legal landscape and changed the jurisprudence of employment and labour issues in Botswana.

The Court of Appeal of Botswana has provided guidance relating to a reasonable range of compensation to be considered by the Industrial Court in cases of unlawful and/or unfair dismissals. The range, as determined in a dispute that was determined at the Industrial Court and appealed to the Court of Appeal, is that compensation should be between one month’s pay and six months’ pay, depending on the circumstances of each case and subject to upward adjustment (beyond six months’ pay) only in exceptional cases.

However, the Court of Appeal has, not defined or provided categories of what would constitute “exceptional cases”; therefore, each case stands to be determined on its own facts and circumstances. 

Legislative Actions and Initiatives

In response to the COVID-19 crisis, the President of Botswana declared a State of Emergency (SoE), in accordance with the Emergency Powers Act (Cap 22:04), with effect from 2 April 2020 for a period of 21 days. On 9 April 2020, Parliament endorsed the extension of SoE for a period of six months. The Emergency Powers (Covid 19) Regulations (Regulations), 2020 were promulgated to provide guidance during the SoE.

Temporary Measures

In terms of the Regulations, the following applied:

  • movement of all persons was restricted;
  • only employees declared as "essential workers" in terms of the Regulations were allowed to go to work;
  • only small numbers of employees were allowed in offices so as to achieve social distancing;
  • employees were encouraged to work from home;
  • employers were prohibited from effecting retrenchment or dismissals during the SoE; and
  • tax subsidies were given to employers for the benefit of employees.

The temporary measures adopted by the government were received with mixed feelings by both employees and employers. The difficulty for some employees was not having the necessary information platforms to work remotely from home. Further, it was impossible for other employees, such as those in the mining sector, to work remotely from home because of the nature of their work. Some employers were reluctant to provide such in an endeavour to reduce operational costs during the uncertain period of COVID-19, which had affected many businesses negatively.

However, as regard to white-collar workers, working remotely from work was a welcome development – indeed, there were suggestions that such practice should be adopted going forward, as it appeared to be an effective way of working and bringing the desired results without physically being at the office. To the employers, working from home was an advantage in that it reduced operational costs for utilities such as water and electricity in the offices. Although there was an initial degree of scepticism and a sense of uncertainty, working from home appears to have been welcomed.

Permanent Measures

There are no permanent measures.

Whilst there are no specific statutory definitions of white-collar and blue-collar employees, it is commonly accepted that the two classes of workers differ to the extent of the type of work they perform. It is accepted that white-collar employees, generally (but not invariably) tend to earn more and engage in less labour-intensive/physical work and are more suited for office work. Whereas, on the other hand, blue-collar employees are generally accepted to be involved in more labour-intensive forms of work and are generally not high-income earners as compared to their white-collar counterparts.

Types of Employment Contract

The types of employment contract are as follows:

  • fixed-term contract for a specified period with no notice provision;
  • fixed-term contract which does contain a notice provision;
  • contract for an unspecified period which contains no notice provision; and
  • contract for an unspecified period with no notice provision.

Contract of Employment

A contract of employment may be given orally or in writing. The contract must define the duties of the employee and the salary or wages to be paid. Child labour is prohibited. A child, under the Children’s Act, is defined as a person under the age of 18 years. In terms of the Employment Act, a child may be employed provided they undertake light work which is not harmful to his or her health and development. The employment may be done by a member of the family of such child, or if the work is of such a character approved by the Commissioner of Labour.

Where a child is employed, there are various mechanisms in the Employment Act to protect that child. The child is, for example, not allowed to work for more than six hours a day or 30 hours a week. This is to ensure that the work is not strenuous to the child which may affect his or her health or development.

The employment contract may contain all other terms which are not inconsistent with the Employment Act (the Act). A contract that provides for conditions of employment that are less favourable to the employee than those prescribed by the Act is of no legal force and effect to the extent it so provides.

However, to the extent that the employee is required to serve a probationary period, such probationary period must be stated in writing.

Working Hours

An employee may not be required to work more than eight ordinary hours in one day or more than 48 ordinary hours in one week. Where the working week is five days, the ordinary working hours may be increased to nine. The number of hours vary depending on the nature of the industry. An employee is afforded at least 45 minutes to have a meal in between work shifts.

An employee should be afforded a rest period of at least 24 hours in any period of seven consecutive days. The rest day is usually a Sunday, but the employer and the employee may agree on the rest day.

However, hours of work may be exceeded in case of:

  • an accident;
  • work which is essential to the life of the community;
  • work essential for national defence; and
  • work performed by employees that are considered vital to the economy, as determined by the Minister of Employer, Labour Productivity and Skills Development.

Overtime

An employee is entitled to payment of overtime for the excess hours worked after the normal working hours. The Act provides for the calculation of overtime, currently, at a rate of 1.5 x the ordinary hourly rate of the employee. Managers, administrators or executives are exempted by the Act from claiming overtime. This is so because, ordinarily, the nature of the position they hold requires them to work outside normal working hours.

Rest Days

An employee who works during a rest period shall be paid at least double his or her wages; optionally, the employee may be granted a day or days off in lieu of double pay. As with overtime, managers, administrators or executives are excluded.

Part-Time Employees

The Employment (Casual Employees) Regulations (S.I. 158 of 1984), made pursuant to the Act, prescribes the circumstances under which persons may be employed on temporary or part-time basis. The Act or the Regulations do not provide any guidance regarding the conditions, circumstances, rights, benefits and entitlements of casual employees. However, the employer is required to keep a register of part-time employees. It is an offence not to keep such a register; a fine or imprisonment term may be imposed on the employer if it fails to do so.

Payment of Wages

Wages are to be paid in legal tender. Payment of wages may also be in kind, but other than by intoxicating liquor or drugs. Payment in kind should be for personal use of the employee and his or her family.

Payment of wages is required by the Act to be made during working hours and before the expiry of the third working day immediately after the last day of the wage period. No deductions in the wage are allowed unless those permitted by the Act, such as tax or contribution to a pension.

Minimum Wage

Section 131(1) of the Act establishes the Minimum Wages Advisory Board ("the Board"). The Board investigates the wages in different trades at the instance of the Minister of Employment, Labour Productivity and Skills Developments ("the Minister") and recommends to the Minister any possible adjustment in minimum wages. A minimum wage is only set for the following trades or industries:

  • building, construction, exploration;
  • garage or motor trade, road transport;
  • hotel, catering, entertainment;
  • manufacturing, service or repair;
  • wholesale, retail distributive;
  • domestic service;
  • agriculture service;
  • watchmen employed in the above industries; and
  • security guards.

The minimum wage is reviewed from time-to-time by the Minister, depending on the prevailing economic conditions.

The 13th-Month Bonus

There is no legislation that provides for a 13th-month bonus (or 13th cheque as it is commonly called). Payment of such a bonus is the prerogative of the employer, save where expressly agreed to in the employment contract.

Negotiation of Wage and Salary Increases

Salary increases are either covered in the contract of an employee or result from a collective labour agreement where a trade union is involved. The employment contract or a collective labour agreement would spell out when any salary increases are to be negotiated and a procedure to be followed for such.

The Public Bargaining Council provides a platform for negotiation of salary increases and other conditions of services for government employees. The government and trade unions negotiate at this platform.

Negotiations ensue until an agreement is reached. Where an agreement is not reached, the employees or the employer may pursue an avenue provided for in the collective labour agreement. A lawful strike may, for example, be an option for the employees.

Leave

The Act provides for different types of leaves that an employee is entitled to and which are paid for by the employer. They are discussed below in full.

Annual leave

Annual leave is with pay. An employee is entitled to basic pay at the rate of not less than 1.25 days per month. The employee and employer agree as to when the employee can take this leave. Where leave is not taken, the employee may "sell" it to the employer – ie, untaken leave days are exchanged for payment. This may have huge financial impact on the employer and therefore employees are encouraged to take leave from time-to-time.

Maternity leave

This leave applies only to female employees. An employee who is about to go on confinement is required to furnish the employer with a certificate from a medical officer that the employee would probably go on confinement within six weeks of the certificate. Upon receipt of the certificate, the employer would allow the employee to absent herself from work until her confinement. The employee is then allowed to return back to work after expiry of six weeks after confinement.

The above is to allow the employee to prepare well for her confinement, as well as to bond with the newly born baby after giving birth.

During the currency of this leave, the female employee is entitled to be paid allowance of not less 50% of her basic salary and any other benefits she is entitled to receive. However, an employee who works for another employer during the currency of her confinement would forfeit her entitlement to maternity allowance.

Paternity leave

There is no paternity leave in Botswana.

Sick leave

An employee is entitled to be paid his or her basic salary for at least 20 working days when on sick leave in any one year of continuous employment. Firstly, the employee would have to be examined by a medical doctor and a recommendation made by the said medical doctor for sick leave. Entitlement does not cover caring for a sick family member – it must be the employee himself or herself who is sick.

An employer who contravenes the provisions of the Act relating to payment of sick leave is guilty of an offence, and may be fined or imprisoned.

Limitations on Confidentiality and Non-disparagement Requirements

There are no statutory provisions that provide for confidentiality and/or non-disparagement obligations. These are, commonly, incorporated into the employment contract and liability for their breach is determined through the institution of a court or arbitration proceedings. There is no limitation in this regard and liability for breach of same would be redressed through either a claim for damages and/or injunctive relief.

A non-compete clause in a contract of employment is not statutorily provided for in Botswana. The clause is usually inserted by the employer in the employee’s contract of employment. The employer will, depending on the circumstances, seek an order from the court to enforce the clause against an employee who has ceased to work for the employer, and who may seek alternative employment elsewhere, usually for a competitor or to compete directly with the previous employer. Such a clause is mostly to protect the disclosure and use of the trade secrets and other information of the previous employer.

The courts in Botswana have observed that non-compete clause are valid and enforceable. However, courts have emphasised the need to balance the interest of both the employer and the employer. On the one hand, there is a need for the employer to be protected from a former employee who may use its trade secrets and other information to its prejudice. On the other, the employee should not be unreasonably prevented from earning a life utilising the skills and knowledge he or she has because of the non-compete clause.

For a non-compete clause to be enforced, therefore, it has to cover a certain area and should endure for a reasonable period of time. All such would depend on the circumstances of each case.

As with non-competition clauses, which are usually for a specified period, the courts would determine the reasonableness of the clause, taking into account the need for the employer to be protected from a former employee who is undoubtedly privy to certain confidential and material information, as well as an employee who has established relationships with customers of the former employer. The exercise, however, also needs to balance the interests of the former employee by not barring him or her from earning a living.

Data Protection Act

The Parliament of Botswana passed the Data Protection Act No 32 of 2018 which was assented by the President on 3 August 2018. However, the Act is not yet in operation. The Act is intended to regulate the protection of personal data and to ensure that the privacy of individuals in relation to their personal data is maintained.

The Act is all-encompassing in so far as personal data is concerned. It is not specific to personal data relating to an employee and employer relationship.

There are no limitations in the use of foreign workers in Botswana save to the extent that there are visa/work permit requirements which have to be satisfied before a foreign worker may be employed in Botswana. See 5.2 Registration Requirements.

Work Permit

In terms of Immigration Act No 2/2011, a non-citizen (the name used in the said Act) shall not engage in any occupation for reward or profit unless he or she is the holder of a work permit issued to him or her permitting the non-citizen to be employed, and he or she is employed or engaged in accordance with the conditions attached to the permit.

Alternatively, a non-citizen employee may be exempted from obtaining a work permit by the Minister if the Minister deems fit to do so. The name of such person exempted shall be published in the Government Gazette. The majority of non-citizens that are exempted from obtaining a permit are those that work in international organisation or in embassies of other states.

Where the permit is issued, it is usually for a certain period of time and must be renewed before its expiry to remain valid.

Resident Permit

In addition to obtaining a work permit, a non-citizen employee is required to obtain a resident permit in order to reside in Botswana. Section 20(2) of the Immigration Act makes it an offence for any person to reside in Botswana without a resident permit. A fine or an imprisonment term, or both, may be imposed to the non-citizen who resides in Botswana without a resident permit.

Registration

In Botswana, trade unions or federation of trade unions have to be registered in accordance with the Trade Unions and Employers’ Organizations Act. A trade union, or federation of trade unions, shall make an application for registration in the prescribed form, accompanied by:

  • the prescribed fee;
  • typed copies of the constitution of the trade union, or federation of trade unions;
  • copy of the resolution;
  • a list of the full names of all the members of the trade union; and
  • a written statement setting out, in respect of the trade union, or federation of trade unions, its name, postal address and its date of formation.

Further, in the case of an application for registration under this Act by a trade union, the application shall also set out the name of every employer or industry that the union claims will be bound to deal with and be recognised for purposes of concluding a collective labour agreement.

A trade union, until it is registered, shall not enjoy the rights, immunities and privileges of a registered trade union and any liabilities incurred by the trade union may be enforced against it and its assets. Further, none of its officers or members shall enjoy the rights, immunities and privileges accorded to the officers and members of a registered trade union.

Recognition of the Union by the Employer

If a trade union represents at least one-third of the employees of an employer, that trade union may apply for recognition under Section 35 of the Trade Disputes Act. Members of management of an employer shall not be part of or be allowed to join a trade union that represents non-managerial employees.

"Member of management" means an employee who has authority, on behalf of his or her employer, to employ, transfer, suspend, lay off, recall, promote, terminate the employment of, reward, discipline or deal with the grievances relating to the employment any fellow employees or effectively to recommend any such action or the manner in which such grievances ought to be dealt with, if the exercise by him or her of that authority is not merely of a routine or clerical nature but requires the use of his or her discretion.

Once the trade union is recognised by the employer, the two parties may then conclude a collective labour agreement which shall govern how negotiations are to be undertaken by the two parties.

An employer who has granted recognition to a trade union shall bargain in good faith with the union on the following:

  • remuneration and other terms and conditions of employment, including the physical conditions under which employees are required to work;
  • employment benefits;
  • employment policies concerning, inter alia, the recruitment, appointment, training, transfer, promotion, suspension, disciplining and dismissal of employees;
  • the collective bargaining relationship including –
    1. organisational rights,
    2. negotiation and dispute procedures, and
    3. grievance, disciplinary and termination of employment procedures; and
  • any other agreed matter.

A trade union that has been granted recognition shall bargain in good faith with the employer who recognises it. Any dispute concerning the duty to bargain in good faith shall be referred to the Commissioner for mediation in accordance with the provisions of the Trade Disputes Act. If the dispute is not settled, the dispute may be referred to the Industrial Court for determination.

Withdrawal of Recognition

An employer may apply to the Industrial Court for an order withdrawing recognition on the following grounds, that:

  • the trade union no longer represents one-third of the employers’ employees;
  • the trade union refuses to negotiate in good faith with the employer;
  • the trade union refuses or fails to comply with an arbitration award or an order of the Industrial Court; or
  • the trade union has materially breached a collective agreement concluded with the employer.

Employee representative bodies, other than trade unions, may be set up internally within an organisation but would not enjoy the statutory entitlements of unions. It is quite common, especially where there is no union representation, for employees to establish a representative committee to engage with the employer on employee-related issues. These issues would include working conditions, wage negotiations, etc.

As discussed above, in the recognition of trade unions by a particular employer, the two parties may then conclude a collective bargaining or labour agreement to provide for the different processes that shall govern their relationship. Section 40 of the Trade Dispute Act (Cap 48:02) provides that every collective labour agreement shall be binding upon the parties to it.

Registration of the Collective Labour Agreement

Each party to a collective labour agreement shall lodge a certified copy of an agreement with the Commissioner of Labour ("the Commissioner) within 28 days of the date on which such agreement was concluded.

Upon receipt, the Commissioner shall register the agreement in the manner prescribed. The Commissioner, in such manner as may be prescribed, would then proceed to serve notice on each party to the agreement that he or she has registered the agreement.

The contents of such collective bargaining agreement should, as far as possible, enshrine the pillars of the Trade Dispute Act and other related legislation, which is to promote harmonious labour relation between the employer and the employee in Botswana.

Where the Commissioner is of the opinion that any term of the agreement lodged with him or her under the provisions of this section is contrary to any provision of the Trade Dispute Act or any other written law, the Commissioner shall withhold registration and shall serve notice of such fact and his or her opinion, in writing, on each party to the agreement.

Section 41 (4) allows any interested party aggrieved by a decision of the Commissioner to withhold the registration of a collective labour agreement, to appeal against such decision to the Minister. Any party to a collective labour agreement who fails to register the collective labour agreement commits an offence and is liable to a fine of BWP2,000 or to imprisonment for 12 months, or to both.

Terminations

For terminations to be lawful, there must be a lawful and justifiable basis for same. All dismissals require that a hearing must be held for an employee, such that allegations are capable of being tested before an impartial person. Only if it is, as objectively assessed, impossible to hold a hearing may an employer dismiss an employee without a hearing.

Collective Redundancies

Where the employer forms an intention to reduce the size of its workforce, the employer must issue notice to the Commissioner and, simultaneously, to the employees likely to be affected. Thereafter, the employer is to engage in consultations with employees with the intention of seeking alternative ways of avoiding the redundancy terminations and to seek way of alleviating the hardships of redundancy terminations.

Terminations for redundancy may be carried out on an individual employee basis or may be carried out where large number of employees are rendered redundant. The same principles and procedures are to be applied. The employer, in terms of this process, maintains the ultimate prerogative on whether to terminate or not and must simply ensure that a fair process is followed in doing so.

Notice Periods

The required notice to be given by the employer or the employee to terminate the contract of employment would depend on the type of contract as highlighted at 2.2 Contractual Relationship ("Types of Employment Contract"). It is also possible for the employer and employee to agree on notice periods that are mutually satisfactory to them – this is provided that same are not less favourable than those provided for by the Employment Act.

Termination of a contract for an unspecified period of time

Where a contract for an unspecified period of time provides for payment of wages for a period not exceeding a day, either party may terminate that contract at the close of any day’s work without any notice to the other party of its intention to do so. There is no requirement for payment in lieu of notice by either party.

Where the wages are payable for a period exceeding a day, or at any time, the notice to terminate such contract shall be for such period of time. Where either party intends not to serve the period of the notice, it may effect payment in lieu of notice.

Termination of a contract for an unspecified period with notice or without notice

In terms of the Act, either party may terminate the contract without giving notice by paying the other a sum equal to the amount of basic pay which would have accrued to the employee during the minimum lawful period of such notice. However, where notice has been given, either a minimal notice or any such longer notice, either party may terminate the contract before the end of the notice period by paying the other party a sum equal to the amount of basic pay which would have accrued to the employee during the balance of the period of notice.

Notice to terminate during probationary period

An employee of probation is one who has been given a contract of employment, but the employer needs time to assess whether or not to confirm the employment of that employee. The decision to confirm the employee at the expiry of the probation is the prerogative of the employer.

Where the contract of employment contains a notice period to terminate during the probation period, either party may give a notice to terminate the contract by giving such notice. In a contract for an unspecified period of time, either party may terminate the contract during the probationary period by giving not less than 14 days' notice to either party. In terms of the Act, by giving such notice, either party would be deemed to have terminated the contract with just cause. There is no need to give reasons for such termination.

Payment of Severance Benefit

In terms of Section 27 of the Employment Act, a severance benefit is paid on termination of a contract of employment, either by death or retirement of an employee or for whatever reason. Severance benefit is paid on a pro-rated basis depending on the duration of continuous employment.

Severance benefit is, nonetheless, payable at the conclusion of each period of 60 months' continuous employment with the same employer. In terms of Section 27(1A) where the employee has not served the same employee for a continuous period of 60 months, the employee shall be entitled to severance benefit at a rate that is proportionate to the employee’s length of service.

An employer who fails to pay severance benefit commits an office and if found guilty, a fine or imprisonment term, or both may be imposed.

An employer and the employee may agree in their contract of employment for payment of pension which is contributed to by both the employer and the employee. Alternatively, the parties may agree for payment of gratuity, especially in fixed-term contracts. Where the employee is entitled to payment of gratuity or pension, or both, the employee would not be entitled to payment of severance benefit under the Act. Except for gratuity and pension, the employer is bound to pay severance benefit.

Summary Dismissals

As pointed out earlier, it is necessary for either party to give notice of its intention to terminate the contract of employment. The exception to giving notice is when the employee has committed serious misconduct. In this case, there is no need for notice and the employee may be summarily dismissed. The Act gives a wider definition of what amounts to serious misconduct for purposes of summary dismissal. Serious misconduct includes the following:

  • wilful disobedience of lawful and/or reasonable orders given by the employer;
  • wilful, express or implied, misrepresentation by the employee in respect of his or her skills or qualifications;
  • habitual or wilful neglect of duties;
  • acts of theft, misappropriation or wilful dishonesty against the employer, another employee, or a customer or client of the employer;
  • acts of violence;
  • damage caused wilfully or by gross negligence to movable or immovable property of the employer;
  • wilful disclosure of confidential information or trade secrets where such disclosure is or is likely to be detrimental to the interests of the employer;
  • inability to carry out normal duties, due to the consumption of alcohol or habit-forming drugs;
  • wilful refusal to obey or comply with any safety rules or practices for the prevention or control of accidents or diseases;
  • consistently substandard work performance, despite at least two written warnings;
  • offering or receiving bribes; and
  • persistent absence from work without permission.

Summary Dismissals Procedure

In Botswana, the courts have held that for any dismissal of an employee to be upheld as being lawful, it has to be both substantively and procedurally fair. Substantive fairness goes to the reason for the dismissal of the employee – ie, whether facts exist as a valid reason for the dismissal. As to procedural fairness, the issue becomes whether the procedure followed to discipline the employee who is alleged to have committed the offence was or was not flawed. In other words, where the process followed was fair in the circumstances.

The Employment Act or the Trade Dispute Act does not provide for the procedure to be followed in disciplining the employee. However, disciplinary codes, employment contracts and, at times, conditions of service, provide for a procedure to be followed where disciplinary proceedings are instituted against the employee.

The Industrial Court, established by the Trade Dispute Act, is a court of law and also applies equitable principles. In other words, the court does not only look at what the law provides but what is fair between the parties. The Industrial Court has developed the following procedure to be followed by employers in disciplinary hearing that may ultimately lead to summary dismissal. They are:

  • the employee who faces discipline must be given reasonable notice of the time and place the employer intends holding a disciplinary enquiry;
  • at the same time, the employee must be informed of the nature of the charge or charges against him or her;
  • the employee must be given the option of being assisted or represented at the enquiry by a co-employee of his or her choice;
  • the employer should place sufficient evidence before the enquiry to prove that the alleged misconduct has been committed and that it has been committed by the employee so charged;
  • the employee should be entitled to question any witness who testifies against him or her;
  • the employee must be entitled to give evidence himself or herself and to call his or her own witnesses;
  • in the event of being found guilty of the alleged misconduct, the employee must be given a further opportunity of putting forward facts in mitigation before a sanction is decided on;
  • if found guilty and after a sanction has been imposed, the employee should be informed of his or her right to appeal against such findings and/or sanction;
  • the enquiry should be conducted in good faith.

Termination agreements are permissible. These are commonly referred to, in this jurisdiction, as "mutual separation agreements". There are no statutory requirements regarding termination agreements. They are concluded freely by the parties.

In concluding such agreements, it suffices that neither party was coerced and/or unduly induced into entering into such an agreement. The parties’ right of freedom to contract and the enforcement of the principle of sanctity of contract by the courts enable the employer and employee to freely bind themselves to the agreed terms.

There are no specific statutory protections against terminations of particular categories of employees. The Employment Act, however, specifically states that an employment contract shall not be terminated on any of the following grounds:

  • the employee's membership of a registered trade union or participation in any activities connected with a registered trade union outside working hours or, with the consent of the employer, within working hours;
  • the employee seeking office as or acting or having acted in the capacity of an employees' representative;
  • the employee making, in good faith, a complaint or participating in proceedings against the employer involving the alleged violation of any law;
  • the employee's race, tribe, place of origin, social origin, marital status, gender, sexual orientation, colour, creed, health status or disability; or
  • any other reason which does not affect the employee's ability to perform that employee's duties under the contract of employment.

Wrongful Dismissal

As highlighted at 7.3 Dismissal for (Serious) Cause (Summary Dismissal) ("Summary Dismissals Procedure"), the dismissal of an employee has to be substantively and procedurally fair.

Mediation

Where the employee considers his or her dismissal to be unfair, either substantively or procedurally, the employee may lodge his or her claim to the Commissioner of Labour for mediation. The employee and the employee will then attend on the set date for mediation. The Commissioner will mediate the dispute between the parties. If at the end of the mediation there is no agreement, the Commissioner shall then issue a Certificate of Failure to Settle.

Proceedings at the Industrial Court

Where a Certificate of Failure to Settle is issued, the employee shall use that certificate to approach the Industrial Court to lodge his or her case challenging his or her dismissal. The employee is required to file a "statement of case" outlining the facts that he or she considers renders his or her dismissal substantively or procedurally unfair, or both. The employee also outlines, in that statement, the relief that he or she seeks which may be reinstatement or, failing reinstatement, compensation together with payment of the benefits such as accrued leave days, severance benefit and other benefits.

Once the statement of case is filed with the court and served on the other employer, the employer is required to file a "statement of defence" disputing the employee’s claim. The court will set a date for trial where both parties may support their claim and defences accordingly. The court is not bound by the strict rules of evidence during trial.

The parties may employ the use of legal representation during a trial. Alternatively, the employee may be reparented by a person who has knowledge in labour matters but who is not necessarily an attorney. The employer, on the other hand, may be represented by any of its designated officer for such purpose.

Powers of the Court in Unfair Dismissals

Where the Industrial Court determines that an employee has been wrongfully dismissed or disciplined, the court may order reinstatement of the employee, with or without compensation, or order compensation in lieu of reinstatement in case of wrongful dismissal. In the case of wrongful disciplinary action, the court may order the payment of such compensation as it considers just.

Assessment of compensation

In assessing the amount of compensation to be paid to an employee who has been unfairly dismissed, the court may consider the following factors:

  • the actual and future loss likely to be suffered by the employee as a result of the wrongful dismissal;
  • the age of the employee;
  • the prospects of the employee in finding other equivalent employment;
  • the circumstances of the dismissal;
  • the acceptance or rejection by either the employer or the employee of any recommendations made by the court for the reinstatement of the employee;
  • any contravention of the terms of any collective agreement or of any law relating to employment by the employer or the employee; and
  • the employer’s ability to pay.

Approach by the court on compensation

There has been, over the years, disparity in the awards of compensation to employees by the Industrial Court. Such, at times, had the effect of financially crippling employers. However, the Court of Appeal of Botswana has recently provided guidance to the Industrial Court that an employee who has been unfairly dismissed should place before the court any exceptional circumstances that would warrant any award of compensation in excess of six months. Exceptional cases would differ from one case to the other. 

Reinstatement

Where the employee is dismissed, the relationship between the employee and the employee has, in most cases, broken down. Whether or not the relationship has irrevocably broken down would depend on a variety of circumstances, such as the size of the employer, the offence the employ was dismissed for, his or her position in the company and other factors.

The court shall consider compulsory reinstatement as a remedy for wrongful dismissal only where the termination was found to be unlawful, or motivated on the grounds of gender, trade union membership, trade union activity, the lodging of a complaint or grievance, religious, tribal or political affiliation. Where the employment relationship has not irrevocably broken down, an employment relationship exists where there is an intact relationship of trust, etc, between the two parties.

There are no grounds for claims on anti-discrimination grounds. Any person who feels that he or she is being discriminated against on the basis of sex, gender, race, colour, social status and other grounds may approach the High Court to challenge and set aside such discrimination on the basis that it offends the Constitution of Botswana. The court may award constitutional damages if the same are sought. It is seldom that the High Court in Botswana grants constitutional damages. The burden of proof is on a balance of probabilities since such is a civil claim.

In terms of employment law, Botswana has ratified two International Labour Organisation anti-discrimination conventions and is a party to the Convention on the Elimination of all Forms of Discrimination against Women. However, there is no specialised domestic sex discrimination legislation in Botswana.

Further, on 5 June 1997, Botswana ratified the International Labour Organisation Equal Remuneration Convention No 100 of 1951 and the Discrimination (Employment and Occupation) Convention No 111 of 1958. The former prohibits wage discrimination based on sex, race, creed, etc. The latter prohibits any forms of discrimination in employment practices or occupation on the grounds of sex, race, creed, etc.

The Industrial Court, being a court of equity, has followed international labour standards and applied the conventions and recommendations of the International Labour Organisation on issues of discrimination.

Specialised Employment Forums

As highlighted above, an employee takes the matter to mediation and, if a Certificate of Failure to Settle is issued, the employee may then approach the Industrial Court to ventilate his or her claim. The Industrial Court is a specialised court to deal with labour and employment issues in Botswana. The court rarely orders costs against any party unless it considers a party to have acted frivolously or vexatiously or with deliberate delay in bringing or defending proceedings.

Alternatively, an employee may approach the High Court, in which case there is no need to go through mediation before the Commissioner. However, the High Court does not apply equitable principles and strict rules of procedure are followed. Further, a party who is not successful is in most cases ordered to pay costs of suit – this means that the High Court not a popular court for bringing dismissal claims.

Class Actions Claims

There is nothing that prohibits the launching of class actions claims, either before the Industrial Court or the High Court.

Representation in Court

Representation at the Industrial Court and the High Court has been discussed at 8.1 Wrongful Dismissal Claims ("Proceedings at the Industrial Court") and in "Specialised Employment Forums".

Arbitration Clauses

The parties may include in the contract of employment a referral to arbitration in the event of a dispute. The parties may even proceed to outline who qualifies to be appointed to conduct the arbitration, its venue, the time period for arbitration and generally the process to be made for referrals to arbitration and the arbitration process itself. Alternatively, arbitration proceedings are provided for in terms of the Trade Dispute Act.

Referral to Arbitration under the Trade Dispute Act

As outlined above, a dispute may be referred to the Commissioner for mediation. Other disputes may be referred to arbitration by the Commissioner in terms of the Trade Dispute Act in the event that:

  • the parties to the trade dispute have agreed to have the trade dispute settled by arbitration;
  • the parties to the trade dispute are engaged in an essential service and the trade dispute concerns a dispute of interest;
  • the Industrial Court has directed the Commissioner to refer the trade dispute to arbitration;
  • the trade dispute concerns a dispute of interest, except in the case of a collective dispute of interest where the employees are represented by a trade union; or
  • a mediator fails to resolve, or fails to mediate, a dispute of interest within the set time periods.

The Procedure

The Commissioner shall, after consultation with the parties to the trade dispute, assign an arbitrator from the panel of mediators and arbitrators. A venue, date and time of the arbitration hearing shall be determined. At arbitration, the arbitrator may conduct the arbitration in a manner that he or she considers appropriate but shall deal with the substantial merits of the trade dispute with the minimum of legal formalities. A party is allowed give evidence, call witnesses, question the witnesses of any other party and address concluding arguments. The arbitration has to be dealt with within a period of 30 days of the trade dispute being referred to the arbitrator.

Powers of the Arbitrator

The arbitrator has the following powers, amongst others:

  • to give such directions to parties to a trade dispute to ensure expeditious, just hearing and determination of a trade dispute;
  • to make an award for a specific period of time;
  • to vary or rescind an award if it was erroneously made by a mediator or it is ambiguous or contains an error or omission or was made by a mediator as a result of a mistake common to the parties to the proceedings;
  • to dismiss a referral if a party fails attend the arbitration hearing;
  • to give a default award if a party fails to attend an arbitration hearing; or
  • to reverse any dismissal of a referral, or a default award.

Effect of the Arbitral Award

The arbitrator shall, upon the conclusion of an arbitration hearing, make an award and shall, within 30 days of the hearing, give reasons for the award. In terms of Section 8(12) an arbitration award shall have the same force and effect as a judgment or order of the Industrial Court. and shall be enforceable in like manner as such judgment or order. A person aggrieved by a decision of an arbitrator under this section may appeal against such decision to the Industrial Court, within 14 days of the arbitrator’s decision.

The employees may be awarded the attorney’s fees. Where costs are awarded either by the Industrial Court or the High Court, as the case may be, they are awarded at the rate outlined in the Rules of the Industrial Court or the Rules of the High Court. This is where the employee is represented by an attorney. Where the employee is not represented and costs are awarded, the employee has to show the actual costs in the form of receipts of what costs he or she has factually incurred.

Armstrongs

2nd Floor, Acacia House
Prime Plaza, Plot 74538
Western Commercial Road
Central Business District
P O Box 1368
Gaborone
Botswana

+267 395 3481

+267 395 2757

moemedi@armstrongs.bw www.armstrongs.bw
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Law and Practice

Authors



Armstrongs was established in 1983 and specialises in all aspects of corporate and commercial law, including capital raising, listings, corporate and trade finance, competition law, banking and financial services, M&A, bonds and other debt or capital instruments, rights issues, marketable investment instruments, listed securities, mining and resources, energy, tax, employment and human resources, privatisation and public-private partnerships. The firm comprises of three partners and eight attorneys, who handle both commercial and litigation aspects of the firm. The firm undertakes a majority of employment cases, representing mostly employers from across all sectors of the economy in Botswana. One of the partners, Moemedi Junior Tafa, is one of the leading lawyers in employment law. Over the years, Tafa has appeared before the Industrial Court, High Court and Court of Appeal and acted in cases that have contributed significantly to the legal landscape and changed the jurisprudence of employment and labour issues in Botswana.

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