Under Botswana Employment Law, there are no specific statutory definitions of white-collar and blue-collar employees – it is commonly accepted that the two classes of workers differ in 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 to office work. 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 compared to their white-collar counterparts. The laws that govern white-collar employees are equally applicable to blue-collar employees.

Types of Employment Contract

The types of employment contract are as follows:

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

Contract of Employment

A contract of employment is an agreement, which can either be oral or in writing, where, for benefit (monetary or otherwise) a person agrees to let their labour to another. Generally, the contract must define the duties of the employee and the salary or wages to be paid. Child labour is prohibited. Under the Children’s Act, a child is defined as a person under the age of 18 years. However, in terms of the Employment Act (“the Act”), a child no younger than 15 years, may be employed provided they undertake light work which is not harmful to their health and development. The work may be for a member of the family of such child, or it may be of a character approved by the Commissioner of Labour.

Where a child is employed, there are various mechanisms in the 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 so strenuous as to affect the child’s health or development.

An employment contract may contain any other terms, as long as they are not inconsistent with the Act. A contract that provides for conditions of employment that are less favourable to the employee than those prescribed by the Act has no legal force or effect to the extent it so provides.

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

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 varies, depending on the nature of the industry. An employee must be 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 the 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 is considered vital to the economy, as determined by the Ministry of Employment, 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 times the ordinary hourly rate of the employee. Managers, administrators and executives are exempted by the Act from claiming overtime. This is 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 must be paid at least double their wages; optionally, the employee may be granted a day or days off in lieu of double pay. As with overtime, managers, administrators and executives are excluded.

Part-Time Employees

The Employment (Casual Employees) Regulations (SI 158 of 1984) (“the Regulations”), made pursuant to the Act, prescribe the circumstances under which persons may be employed on a temporary or part-time basis. Neither the Act nor the Regulations 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, and a fine or prison 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 not in the form of intoxicating liquor or drugs.

Payment in kind should be for personal use of the employee and their family.

The Act requires that payment of wages is to be made during working hours and before the end of the third working day, immediately after the last day of the wage period. No deductions from wages are allowed unless they are permitted by the Act (eg, tax or pension contributions).

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 Development (“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;
• agricultural 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 known). Payment of such a bonus is the prerogative of the employer, save where this is expressly agreed 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 collective labour agreement would spell out when any salary increases are to be negotiated and the procedure to be followed.

The Public Bargaining Council provides a platform for the negotiation of salary increases and other conditions of service 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 employees.

Leave

The Act provides for different types of leave 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 leave of no 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 may be exchanged for payment).

This can have a 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 will probably go on confinement within six weeks of the certificate.

Upon receipt of the certificate, the employer must allow the employee to absent herself from work until her confinement.

The employee is then allowed to return to work six weeks after her 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 no less than 50% of her basic salary as well as any other benefits she is entitled to receive. However, an employee who works for another employer during the currency of her confinement will forfeit her entitlement to maternity allowance.

Paternity leave

There is no paternity leave in Botswana.

Sick leave

An employee is entitled to be paid their 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 said medical doctor for sick leave. Entitlement to sick leave does not cover caring for a sick family member – it must be the employee 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

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 prevent the disclosure and use of trade secrets and other information of the previous employer.

The courts in Botswana have observed that non-compete clauses are valid and enforceable. However, the courts have emphasised the need to balance the interests of both the employee 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 hand, the employee should not be unreasonably prevented by a non-compete clause from earning a living utilising the skills and knowledge they acquired in their previous employment.

For a non-compete clause to be enforced, therefore, it has to cover a certain area and may only be enforced for a reasonable period of time. Such factors would depend on the circumstances of each case.

Non-solicitation Clauses - Enforceability/Standards

As with non-compete clauses, which are usually for a specified period, the courts would determine the reasonableness of a non-solicitation 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 having established relationships with customers of the former employer. The exercise, however, also needs to balance the interests of the former employee by not barring them from earning a living. Each case is therefore determined on its own merits.

Data Protection Act

The parliament of Botswana passed the Data Protection Act No 32 in 2018, but it only came into operation on 15 October 2021. The Data Protection Act regulates the protection of personal data and ensures 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, and is not specific to personal data relating to an employee and employer relationship.

After the Data Protection Act came into force, a grace period for compliance was extended until 16 September 2023.

There are no limitations on 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 4.2 Registration Requirements for Foreign Workers. Furthermore, parliament has enacted the Economic Inclusion Act to promote the economic inclusion of targeted citizens through economic participation in all sectors of the economy, the state and its related state-owned entities, and any private sector employer that plays a significant role in economic empowerment.

Work Permit

In terms of Immigration Act No 2/2011, a non-citizen (the name used in the Immigration Act) may not engage in any occupation for reward or profit unless they are the holder of a work permit issued to them permitting the non-citizen to be employed, and they are 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 exempted person will be published in the Government Gazette. The majority of non-citizens exempted from obtaining a permit are those that work in international organisations 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 non-citizen to reside in Botswana without a resident permit.

A fine or imprisonment, or both, may be imposed on a non-citizen who resides in Botswana without a resident permit.

Botswana does not have any regulations and/or restrictions on mobile work. However, as a direct result of the COVID-19 pandemic, some employers in Botswana have allowed a gradual movement towards flexi-working arrangements (non-conventional forms). This has predominantly encompassed employers and employees, who must agree on certain terms which will govern the working relationship, especially in a case where the location of the performance of the work is not material.

The advent of mobile work has, however, come with challenges such as issues of workplace injuries, confidentiality, performance management, enforcement of laws relating to hours of work, and many more. There is a need for legislation to be enacted to specifically address these new forms of work, outside of conventional work.

There are no specific laws in Botswana that govern sabbatical leave. As such, it is largely left to the employer and employee to contractually agree such terms.  A common type of sabbatical leave in Botswana is “study leave”.

There are no regulations governing other new manifestations in the workplace in Botswana.

Status/Role of Unions

Registration

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

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

Furthermore, in the case of an application by a trade union for registration under the Trade Unions and Employers’ Organisations Act, the application must  also set out the name of every employer or industry that the union claims will be bound by the deal and recognised for the purposes of concluding a collective labour agreement.

Until it is registered, a trade union will 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. Furthermore, none of its officers or members will 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 may 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 their employer, to employ, transfer, suspend, lay off, recall, promote, terminate the employment of, reward, discipline or deal with the grievances relating to the employment of 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 them of that authority is not merely of a routine or clerical nature but requires the use of their discretion.

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

An employer who has granted recognition to a trade union will 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 will bargain in good faith with the employer that recognises it. Any dispute concerning the duty to bargain in good faith will 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:

• 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 will 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 will govern their relationship. Section 40 of the Trade Dispute Act (Cap 48:02) provides that every collective labour agreement will be binding upon the parties to it.

Registration of the Collective Labour Agreement

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

Upon receipt, the Commissioner must 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 the agreement has been registered.

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

Where the Commissioner is of the opinion that any term of the agreement lodged with them under the provisions of this section is contrary to any provision of the Trade Dispute Act or any other written law, the Commissioner must withhold registration and serve notice of such fact and their 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, in order to appeal against such decision to the Minister. Any party to a collective labour agreement that fails to register the collective labour agreement is committing an offence and is liable to a fine of BWP2,000 or to imprisonment for 12 months, or 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, so that allegations against them can be tested before an impartial person. Only if it is impossible to hold a hearing, as objectively assessed, may an employer dismiss an employee without a hearing.

Collective Redundancies

Where an 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 must engage in consultations with its employees with the intention of seeking alternative ways of avoiding the redundancy terminations and to find ways 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 a 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 as to whether to terminate and must ensure that a fair process is followed in doing so. This fair process involves, meaningfully consulting with the employees, prior to them being retrenched.

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 in 1.2 Employment Contracts (see under “Types of Employment Contract”). It is also possible for the employer and employee to agree on notice periods that are mutually satisfactory to them – provided these are no less favourable than those provided 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 must be for such period of time. Where either party intends not to serve the period of the notice, this may affect 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 on 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 notice to terminate the contract. 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 will 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.

The severance benefit is paid on a prorated basis, depending on the duration of continuous employment.

A severance benefit is also, however, 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 employer for a continuous period of 60 months, the employee is entitled to a severance benefit at a rate that is proportionate to the employee’s length of service.

An employer who fails to pay a severance benefit is committing an offence and, if found guilty, could be fined or imprisoned, or both.

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

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 the purposes of immediate (summary) dismissal. Serious misconduct includes the following:

• an employee’s wilful disobedience of lawful and/or reasonable orders given by the employer;
• wilful, express or implied misrepresentation by an employee of their skills or qualifications;
• an employee’s habitual or wilful neglect of duties;
• acts of theft, misappropriation or wilful dishonesty by an employee against the employer, another employee, or a customer or client of the employer;
• acts of violence by an employee;
• damage caused wilfully or by gross negligence on the part of an employee to the movable or immovable property of the employer;
• wilful disclosure of confidential information or trade secrets by an employee where such disclosure is, or is likely to be, detrimental to the interests of the employer;
• an employee’s inability to carry out normal duties, due to the consumption of alcohol or habit-forming drugs;
• an employee’s wilful refusal to obey or comply with any safety rules or practices for the prevention or control of accidents or diseases;
• an employee’s consistently substandard work performance, despite at least two written warnings;
• an employee’s offering or receiving of bribes; and
• an employee’s 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 – that is, 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 and the Trade Dispute Act do not provide the procedure to be followed in disciplining an 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 an 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 procedures to be followed by employers in a disciplinary hearing that may ultimately lead to summary dismissal:

• the employee who faces discipline must be given reasonable notice of the time and place the employer intends holding a disciplinary inquiry;
• at the same time, the employee must be informed of the nature of the charge or charges against them;
• the employee must be given the option of being assisted or represented at the inquiry by a co-employee of their choice;
• the employer should place sufficient evidence before the inquiry 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 them;
• the employee must be entitled to give evidence and to call their own witnesses;
• in the event of being found guilty of the alleged misconduct, the employee must be given a further opportunity to put 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 their right to appeal against such findings and/or sanction; and
• the inquiry 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 for particular categories of employees. The Employment Act, however, specifically states that an employment contract may 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 their duties under the contract of employment.

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

Mediation

Where the employee considers their dismissal to be unfair, either substantively or procedurally, the employee may lodge their 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 will then issue a Certificate of Failure to Settle.

Proceedings at the Industrial Court

Where a Certificate of Failure to Settle is issued, the employee will use that certificate to approach the Industrial Court to lodge their case challenging their dismissal. The employee is required to file a “statement of case” outlining the facts that they consider renders their dismissal substantively or procedurally unfair, or both. The employee also outlines, in that statement, the relief that they seek, which may be reinstatement or, failing reinstatement, compensation together with payment of 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 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 represented 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 officers 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 a case of wrongful dismissal. In a 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 employee’s prospects 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. At times, such awards have had the effect of financially crippling employers. However, the Court of Appeal of Botswana has 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. This is now the adopted approach to compensation. Exceptional cases would differ from one case to the next.

Reinstatement

Where an employee is dismissed, the relationship between the employee and the employer has, in most cases, broken down.

Whether the relationship has irrevocably broken down would depend on a variety of circumstances, such as the size of the employer, the offence for which the employee was dismissed, the employee’s position in the company and other factors.

The court will 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, or 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 they are 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.

Furthermore, 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.

No new laws on digitalisation have been passed. However, in practice, requests can be made to attend a matter virtually, where in-person is not feasible.

Specialised Employment Forums

As highlighted in 8.1 Wrongful Dismissal, when an employee takes a matter to mediation and a Certificate of Failure to Settle is issued, the employee may then approach the Industrial Court to ventilate their claim. The Industrial Court is a specialised court that deals 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.

Furthermore, a party that is not successful is, in most cases, ordered to pay costs of suit. As a result, the High Court is not a popular court for bringing dismissal claims.

Class Action Claims

There is nothing that prohibits the launching of class action 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 in 8.1 Wrongful Dismissal Claims (“Proceedings at the Industrial Court”) and in “Specialised Employment Forums” above.

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 in 8.1 Wrongful Dismissal, a dispute may be referred to the Commissioner of Labour 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 a trade dispute have agreed to have the trade dispute settled by arbitration;
• the parties to a 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 will, after consultation with the parties to the trade dispute, assign an arbitrator from the panel of mediators and arbitrators. The venue, date and time of the arbitration hearing will be determined. At arbitration, the arbitrator may conduct the arbitration in a manner that they consider appropriate but will deal with the substantial merits of the trade dispute with the minimum of legal formalities. A party is allowed to give evidence, call witnesses, question the witnesses of any other party and give 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, among others:

• to give such directions to parties to a trade dispute to ensure an 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 if it is ambiguous or contains an error or omission, or if it 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 to 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 will, upon the conclusion of an arbitration hearing, make an award and, within 30 days of the hearing, give reasons for the award. In terms of Section 8(12) an arbitration award will have the same force and effect as a judgment or order of the Industrial Court and will be enforceable in the manner of 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.

Awarding Attorney’s Fees

An employee may be awarded 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.

Where an employee is not represented by an attorney and costs are awarded, the employee has to show the actual costs in the form of receipts of what costs they have actually incurred.