Sebat and Another v Urban Security (Botswana) (Pty) Ltd (IC. 131/2005) [2006] BWIC 12; [2006] 1 BLR 592 (1 April 2006)

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IN THE
INDUSTRIAL COURT OF BOTSWANA

HELD AT
GABORONE

 
CASE NO. IC. 131/2005

IN
THE DISPUTE BETWEEN

 

OTHUSITSE
SEBAT ………………………. FIRST APPLICANT

KEAGILE
NOKANE ………………………. SECOND APPLICANT

AND

 

URBAN
SECURITY (BOTSWANA) (PTY) LTD ………………………. RESPONDENT

——————————————————————————————-

CONSTITUTION
OF THE COURT

D.
J. de VILLIERS INDUSTRIAL COURT JUDGE

T.
E. K. PHEKO NOMINATED MEMBER (UNION)

M.
T. MOGAMI NOMINATED MEMBER (BOCCIM)

FOR
THE APPLICANTS:

BOTH
IN PERSON

FOR
THE RESPONDENT

MR
TEBOGO TLHONG MANAGER OF RESPONDENT COMPANY

GABORONE

PLACE
AND DATE OF PROCEEDINGS

GABORONE 14
MARCH 2006

A
breakdown in trust and confidence in an employee can be a ground for
dismissal as a dismissal for operational requirements. If
employee
has not committed a specific act or conduct dismissal could be fair
if employer is able to prove, even on mere suspicion,
that
relationship of trust has been compromised. If based on suspicion,
such suspicion must be very strong.

JUDGMENT

Evidence of the
applicants

[1] The first
applicant started working for the respondent as a security guard on 4
August 2000 and he was dismissed on 28 January
2005. He then gave
the following explanation as to what had led to his dismissal.

[2] He testified
that he was not working on 20 January 2005 as it was one of his off
days. He wanted to buy a pocket of potatoes
at the OK Bazaars and on
the way there he stopped in Extension 20 at Roni’s place, who was a
friend of his and he asked Roni to
accompany him. At Roni’s place
he met Lefa, a friend of Roni’s who he did not know. All three of
them then walked to the O.
K. Bazaars and he noticed that Lefa was
carrying something in a plastic bag. He only saw what it was some
time later.

[3] At the O.K.
Bazaars he found that they had no potatoes so they decided to return
to Roni’s place. It was then raining. On
leaving the shopping
complex they noticed a man in a car and Roni asked this man if he
could give them a lift and all 3 of them then
boarded the car. At
the BTV traffic circle the driver said he first has to go and put
petrol in his car at Pula Spar because he
had to see someone there.

[4] At the filling
station at Pula Spar the driver put in some petrol. As they were
about to leave, a police van arrived there at
a high speed and
stopped in front of their vehicle, blocking their way. The police
told them to alight from the vehicle, which they
did and the police
searched them. He then noticed that the police had taken a plastic
toy pistol from the plastic bag Lefa was carrying.
He told the
police that he had bought it as a present for his son. On searching
the vehicle the police found 2 bread knives in
the glove compartment.

[5] The police
then took them in the police van to Mogoditshane police station.
There the police told them that they are suspecting
them of being on
their way to go and commit a robbery somewhere. They all denied
these allegations. Later the same day the Gaborone
West police
phoned and asked the police who arrested them to bring them to
Gaborone West police station. There the police told them
that they
suspect them of having been involved in a robbery earlier that day in
the centre of the city. They all again denied these
allegations but
they were there detained in the police cells for the night and they
were all released later the following day, 21
January 2005 as there
was no evidence against them.

[6] On 21 January
2005, before their release, a police officer said to the first
applicant that he used to see him in the company
of the second
applicant, who was a security guard at Barclays Bank. The police
then went and fetched the second applicant from where
he was on duty
at the bank. On their return with the second applicant the police
asked him in the presence of the first applicant,
how he knows the
first applicant. He replied that they are security guards who work
together for the same employer. The respondent’s
manager was
phoned and he came to the police station. There he heard that the
first applicant had also been detained on suspicion.

[7] As the two
applicants were only released during the afternoon of 21 January
2005, they did not go back to work on that day. The
first applicant
testified that he returned to work on 22 January 2005 and he was
allowed to work his normal shift. He was stopped
from working on 23
January 2005 by the manager who said that he was still investigating
why the two applicants were detained by the
police.

[8] The first
applicant, on 25 January 2005 received a notice to attend a
disciplinary enquiry on 28 January 2005 to answer a charge
of breach
of trust. On 28 January 2005 he was found guilty at this
disciplinary enquiry of breach of trust and dismissed on one
month’s
notice. His final payment was for one months notice pay in lieu of
notice. The first applicant said he also received
his pay for
January as well as accrued leave pay. He now avers that he was
unfairly dismissed as he was not guilty of the said charge,
for which
unfair dismissal he now wants to be paid compensation and he also
wants a pro rata severance benefit payment.

[9] The second
applicant testified that he started working for the respondent as a
security guard on 8 June 2000. He was also dismissed
for breach of
trust on 28 January 2005.

[10] He further
testified that during January 2005 he was posted on day duty as one
of the security guards at Barclays Bank in Broadhurst,
Gaborone. He
did not have a day off on 20 January 2005 and was doing day duty at
the bank on that day. He said on 21 January 2005
he was also on day
duty at the bank, when the police arrived there. They said they
wanted to question him so they took him off to
the police station.
There the police asked him if he knew the first applicant. He said
yes, because they work together and after
work they also see each
other because they belong to the same church. They said that they
suspect the first applicant and the other
three who were also in the
car to be involved in a crime. They asked him if he knew these
people and he said he only knew the first
applicant.

[11] The police
released the second applicant that same day after having questioned
him. The next day on Saturday, 22 January 2005
when he arrived at
the bank to work he was told to go home and return on Monday to see
the manager. When he saw him the manager
told him not to work as the
manager was busy investigating why the police had arrested the second
applicant on 25 January 2005.
He also received a notice to attend a
disciplinary hearing on 28 January 2005 to answer a charge of breach
of trust. At the hearing
he pleaded not guilty to the charge but was
found guilty and dismissed on one month’s notice. He left the
respondent’s employment
on the very same day as he was also paid
one month’s notice pay in lieu of notice, as well as his wages for
January and accrued
leave pay. The second applicant is also claiming
compensation for alleged unfair dismissal.

[12] The first
applicant called Roni as a witness and then the respondent’s
manager testified and the office clerk who chaired the
disciplinary
hearing was also called as a witness. Before dealing with further
evidence of the two applicants and with the evidence
of the aforesaid
witnesses, the court will first set out principles of law and of
equity relevant to a fair dismissal in general
and then deal
specifically with a dismissal on the grounds of break down of trust.

Substantive
fairness

[13] Substantive
fairness relates to the reason for terminating an employee’s
contract of employment. An employer can only terminate
an employee’s
contract of employment without notice or with notice or by paying him
notice pay in lieu of notice, if he has a valid
reason for such
termination.

[14] In terms of
section 26 (1) of the Employment Act, an employer may only dismiss an
employee without notice, i.e. summarily, where
the employee has been
found guilty at a disciplinary enquiry of serious misconduct in the
course of his employment. Section 26 (4)
provides that “the
term “serious
misconduct”
shall,
without prejudice to its general meaning, include or be deemed to
include the following: ———.” Then
follows a list of various acts which constitute serious misconduct.
From the above wording it is clear that the said list was
never
intended to be an exhaustive list. It is merely illustrative. There
are therefore numerous other acts of serious misconduct
not listed
there. So for instance can “breach
of trust” or
“breakdown
of trust,” as
authors on labour law prefer to call it, be serious misconduct,
depending on the circumstances of the case.

[15] In
terms of section 18 (1) of the Employment Act a contract of
employment for an unspecified period of time may be terminated by
either
party by giving the other party the specified period of
notice. In terms of section 19 (a) of the Employment Act any party
may also
so terminate a contract of employment by rather paying the
other party notice pay in lieu of notice. This is also in line with
article
11 of ILO convention no.158 of 1982 which requires that every
termination of employment shall be on reasonable notice or payment
of
notice pay in lieu thereof, unless the employee is found guilty of
serious misconduct. In this case both applicants were given
one
month’s notice of the termination of their contracts of employment.
They were however paid notice pay in lieu of notice and
therefore
left the respondent’s employment on the very day they were
dismissed.

[16] An employer
cannot get rid of an employee by giving him the required notice just
because the said section 18 provides for termination
of employment on
notice. The rules of natural justice dictate that there must be a
valid reason for such dismissal.

[17] These rules
of natural justice, or rules of equity as they are sometimes called,
are derived from conventions and recommendations
of the International
Labour Organisation (ILO), which conventions and recommendations this
court, also being a court of equity, applies
when determining trade
disputes. These conventions and recommendations are international
labour standards. The basic requirements
for a fair dismissal are
set out in article 4 of ILO Convention no.158 of 1982, which article
reads as follows:

“The employment of a
worker shall not be terminated unless

there is a valid
reason for such
termination connected with

the capacity or conduct of
the worker or based
on the

operational requirements
of the undertaking, establishment

or service.” (Emphasis
supplied)

[18] This article
4 is then also the origin of the equitable requirement that an
employee can only be dismissed if the employer has
a valid reason for
doing so.

[19] To comply
with the “valid
reason”
test, an employer must be satisfied, judged objectively, that the
misconduct, with which the employee is charged, had in fact been
committed and that there is sufficient proof that the said misconduct
had in fact been committed by the employee so charged. It
must be
remembered that it is not for an employee to prove his innocence. It
is for the employer to prove the employee’s guilt.

[20] As to the
degree of proof required, Rycroft and Jordaan, A Guide to South
African Labour Law, second edition, state at page
196 paragraph
4.6.1:

“The
employer’s reasons for dismissing an employee must be both valid
and fair. Validity, it has been said, ‘goes to proof and to
the applicability to the particular employee of the reason for the
dismissal.’ The enquiry is
whether the facts on which the employer relied to justify the
dismissal actually existed. The employer is not allowed
to rely in
court on reasons not relied upon or not known at the time of the
dismissal. While a
mere suspicion of misconduct is not sufficient to warrant dismissal,
the employer is also
not required to prove the employee’s misconduct beyond reasonable
doubt. It is sufficient if the employer
had reason to believe on a
balance of probabilities that an offence had been committed.”
(Emphasis supplied)

[21] The court
wants to emphasise that the general rule is still that mere suspicion
is not sufficient grounds or a valid reason for
dismissing an
employee. There are however exceptions to this general rule and one
such exception is in the case of breakdown of
trust which will be
dealt with here below.

Breakdown of
trust

[22] Both
applicants were charged with “Breach
of Trust” but the particulars of their
charges differed. The particulars of the first applicant’s charge
are as follows:

“BREACH
OF TRUST

The
Company has been informed by Sergeant Khethiwe of CID at Gaborone
West Police Station that you were found in the company of persons
who
were allegedly on their way to steal money from a business.

A
knife and a toy gun was apparently confiscated by the Police from the
alleged criminals. As an ordinary employee, let alone a security
guard, there must be an element of trust between the employee and
employer. This trust has been breached by your apparent association
with suspected criminals.”

The particulars of
the second applicant’s charge are as follows:

“BREACH
OF TRUST

The
Company has been informed by Sergeant Khethiwe of CID at Gaborone
West Police Station that you were in the company of at least
one
alleged criminal the night before an armed robbery was to take place.

As
an ordinary employee, let alone a security guard, there must be an
element of trust between the employee and employer. This trust
has
been breached by your apparent association with a suspected
criminal.”

[23] As stated
above, authors of labour law prefer to refer to this ground for
dismissal as breakdown of trust. In The South African
Law of Unfair
Dismissal by le Roux and van Niekerk, the authors deal with this
aspect and state at page 287:

“22.3
Breakdown of trust

A
breakdown in trust and confidence as a substantive ground for
dismissal has been recognized by the courts and categorised as a
dismissal
for operational requirements.

Where
the employee acts in breach of the trust and confidence which is
inherent in the employment relationship, the employee would
normally
commit an act of misconduct and be liable to disciplinary action on
that basis.

In
circumstances where the employee does not commit a specific act of
misconduct, or the employer is unable to prove an allegation
of
misconduct, a dismissal for operational requirements may nonetheless
be fair in circumstances where the employer is able to prove
that the relationship of trust and confidence is compromised to the
extent that the continuation of the employment relationship is
intolerable.

Mere
suspicion of misconduct may
be sufficient. In EAWTUSA & another v The Productions
Casting Co (Pty) Ltd, the
industrial court stated: [(1988) 91 ILJ 702 (IC)] (emphasis supplied)

‘As far as misconduct is concerned I believe that
if the employer is of the bona
fide view that as a result of the
employee’s conduct which has come to his attention and which he has
investigated to such an extent
that would exclude any grounds that he
(the employer) acted arbitrarily, the relationship between him and
the employee has become
intolerable for commercial or public interest
reasons, he will be entitled to dismiss the employee… If an
employer for instance
mistrusts an employee for reasons which he must
obviously justify (not according to any particular standard of
proof), and he can
show that such mistrust, as a result of certain
conduct on the part of the employee, is counter-productive to his
commercial activities
or to the public interest (where appropriate),
he would be entitled to terminate the relationship’.”

[24] In the
aforesaid case the court however found that the basis for suspicion
was too weak to permit the application of this doctrine
(dismissal
for operational requirements) Fabricius A.M. stated the following at
709 A:

“The
mistrust or suspicion of such offence is in this case not of such a
nature to find that the relationship has become intolerable
to the
extent that keeping the relationship artificially alive would be
counter-productive to the employer’s commercial interest.
Public
interest also does not demand that the relationship be terminated
herein.”

[25] In his book
Dismissal, John Grogan warns against the danger of using this
doctrine in cases based on suspicion. He states the
following at
page 281 et seq:

“Breakdown
of trust

More
controversial is the classification as a form of dismissal for
operational requirements of dismissals effected as a result of
‘breakdown of trust and confidence’
in the employee. The obvious danger of treating a breakdown of trust
as a ground of dismissal for operational requirements is that
it
affords employers a means of circumventing the general requirement
that an employer must prove that employees dismissed for misconduct
actually committed the offences concerned. Operational requirements
has been accepted by courts operating under the 1956 LRA as
justifying dismissal when the employer is unable to prove an
allegation of misconduct, but where the circumstances are such that
the employer is able to demonstrate that the relationship of trust
and confidence has been compromised.

—————————–

In Moletsane v Ascot Diamonds
(Pty) Ltd a dismissal ‘for
operational reasons’ was upheld because the employer was able to
establish a ‘strong suspicion’ that a diamond
sorter had
substituted a diamond for another lesser weight and inferior quality.
The court held that the fact that the employer
had adduced
sufficient evidence to establish a suspicion was sufficient to
justify dismissal, given the position of trust held by
the employee.”
[(1993) 2 LCD 193 (LAC)]

[26] Returning now
to the present case, it is clear that neither applicant committed a
specific act of misconduct and therefore the
respondent will have to
prove dismissal for operational requirements to justify their
dismissals based on a breakdown of trust and
confidence in the
applicants. What
evidence is there to substantiate a sufficiently strong suspicion to
justify a dismissal for operational requirements as a result
of such
alleged breakdown?

[27] According to
the first applicant’s charge sheet the manager was informed by the
police that the first applicant was “found
in the company of persons who were allegedly on their way to steal
money from a business.” The manager
testified that on 20 or 21 January 2005 he received information that
the first applicant was at the police station. He
said he went there
to find out if both applicants were there. There he saw a sergeant
who confirmed that they were both there.
The sergeant told him that
as a result of information they received, they suspected that the
four persons in the car were intending
to go and commit a crime.
They were not sure whether this information was true or false so they
detained the first applicant and
the other 3 occupants of the car for
questioning. He said the sergeant further told him that they went
and collected the second
applicant where he was on duty. When he
asked why, the sergeant said that the second applicant was seen in
the company of one of
the suspects the previous day.

[28] According to
the minutes of the disciplinary hearing the first applicant’s plea
is noted as follows:

“I
do not plead guilty because I was just given a lift.”
The said minutes further reflect that immediately after the said
plea the manager asked the first applicant the following question:

“Do
you realise that asking for a lift from people who were on the way of
committing a criminal offence, has made you breach the trust
that
your employer has in you?”

The first
applicant’s reply was “No.”

[29] According to
the minutes of the disciplinary meeting the second applicant’s plea
is recorded as follows:

“I
do not plead guilty because I do not know that associating with
somebody that you know, not knowing that he or she is a wrong doer,
is wrong.”

The manager
testified in court that at the disciplinary hearing he asked the
second applicant if he knew that associating with criminals
was a
breach of trust. He said the second applicant admitted that if he
did it it would tarnish the name of the company. That is
however not
how it is recorded in the minutes, which shows that immediately after
the second applicant’s plea, the manager asked
him:

“Do
you realise that associating with people who are wrong doers has made
you breach the trust that your employer had in you.” His
reply was
‘yes’, but he said that
was meant in general because the manager did
not reply when he asked him who these wrong doers are. The court
accepts this explanation
of the second applicant. When the court
asked the manager, with which criminals the second applicant
associated, he replied that
he associated with the first applicant,
who associated with other criminals who were in the car, so the first
applicant must also
be a criminal. The court finds that there is no
merit in this explanation and rejects it.

[30] From the
evidence dealt with so far it appears that after the police released
the applicants from detention, the manager suspended
them on full pay
pending his investigations to try and find out why they were
detained. It is clear that he found out nothing further
from what
the police told him on that first day, namely that they had a
suspicion that the four men in the car were on the way to
go and
steal money and that second applicant had been seen in the company of
the first applicant the day before.

[31] The court
finds that the manager’s suspicion was therefore entirely on
hearsay from the police. He was relying on the suspicion
of the
police which turned out to have been based on incorrect information
they received. The applicants were not arrested because
they were
never charged. They were only detained for questioning. The first
applicant was cleared and released the next day. The
second
applicant was also cleared and released after a few hours.

[32] The court
finds that on the abovementioned facts the manager based his
suspicion and drew the following unsubstantiated and unjust
inferences:

1. The first
applicant’s undisputed evidence is that when he questioned the
manager during his investigations, the manager said
because he was
detained by the police the manager must decide what conclusion to
draw from it.

2. When the second
applicant asked the manager why he was suspended, he said he would
often see the second applicant in the company
of the first applicant,
who is a criminal, and therefore the company could no longer trust
him.

3. When the second
applicant asked the manager at the disciplinary hearing what he had
done wrong, he said that the company cannot
employ people who are
suspected of associating with criminals.

4. When the second
applicant questioned the manager at the court hearing, he said that
when those four in the car were detained, he
was on duty at the bank,
so what evidence does the manager have against him that he was part
of the suspects. The reply was that
the only evidence he has is that
the police sergeant told him that the first applicant was seen in the
company of one of the suspects.

[33] The office
clerk who was chairperson of the disciplinary enquiry also testified
and when questioned she also gave the following
unsubstantiated and
unjust replies for her findings. The first applicant asked her the
following questions:

“Did
you dismiss no.2 just because you heard that he was seen with one of
the suspects? —- I dismissed him because he was found
with you and
you were found in company of criminals.”

“Were
those I was arrested with criminals or only suspects? – Suspects
who were suspected of stealing.”

“Did
you dismiss me for stealing or for being a suspect? – I dismissed
you for being a suspect and because you were a security guard
you
breached trust.”

[34] In his final
submissions the manager submitted that when one of their employees,
who is a security guard is suspected of a crime
such as armed robbery
the company can no longer trust him. He said you cannot keep an
employee on when you no longer trust him,
because you cannot post him
to look after other people’s property if you do not fully trust
him. He said that if a client hears
that the security guard who is
guarding their premises was suspected of armed robbery, the company
may loose that client. The client
will not bother to find out
whether there was evidence or no evidence to substantiate it.

[35] The court
finds this submission not only nonsensical but also ridiculous and
has no hesitation in rejecting it. The court will
illustrate by way
of the following example how ridiculous drawing such inferences can
be. A man parked his car in the street in
front of his house one
evening. While he was sitting in his lounge having a drink and
watching television a thief came and stole
his car. The thief drove
recklessly and knocked down a child on the side of the road. The
child died on the spot. To get away
the thief drove too fast, he was
unable to negotiate a turn and crashed into a wall. There he
abandoned the car and ran away. The
police traced the owner of the
car from the registration plates and went to this man’s house where
they found him still drinking
and watching television. He was
unaware that his car had been stolen but the police suspected that he
was guilty of drunken driving
and hit and run so they detained him
for questioning. He was locked up for the night and questioned the
whole of the next morning.
They were eventually satisfied with his
story and released him. He told his employer what had happened and
the employer then phoned
the police who said that this man was
detained on suspicion. The employer was however unmoved and said
that as the police suspected
him of drunken driving, culpable
homicide and hit and run, which are serious charges, the company no
longer had trust in him and
they dismissed him. If this fictitious
man had been the manager in this case, the court is sure he would
have reported to Labour
immediately that he had been unfairly
dismissed.

[36] The court
finds that the version of each applicant can reasonably possibly be
true, which means that there is no proof that either
had committed
any crime. The court further finds that there is also no proof that
any of the said four men who were in the car,
were criminals. All of
them were merely detained on suspicion and all were released the
following day. No charges were ever brought
against them as the
suspicion proved to have been incorrect. The court therefore finds
that there was no proof whatsoever that the
first applicant was a
criminal or that he was embarking on criminal activities. The court
finds that the case against the second
applicant is non existent
because all the respondent had against him, was that he was seen the
previous day in the company of his
co-worker and friend, the first
applicant.

[37] The court
therefore finds that the basis for respondent’s suspicion that the
applicants were suspected of having been involved
in some criminal
activity, is so weak that it does not permit the application of the
doctrine, dismissal for operational requirements,
based on a
breakdown in trust and confidence in the two applicants.

[38] The court
therefore further finds that the respondent had no reason whatsoever,
let alone a valid reason, for dismissing the
two applicants. The
court consequently finds that the dismissal of the two applicants was
unlawful as well as substantively unfair.

Procedural
fairness

[39] Procedural
fairness relates to the procedure followed by an employer prior to
imposing any sanction on an employee for any alleged
misconduct.

[40] The dismissal
as a result of misconduct, albeit ordinary misconduct or serious
misconduct, on the part of an employee, is also
known as a
disciplinary dismissal. This means that the general rule is that an
employee may not be dismissed for misconduct unless
a disciplinary
enquiry has been held. In this court’s judgment in the case M.
Phirinyane v Spie Batignolles, Case No.IC 18/94 (J.4), dated 6
January 1995, the court found that, although the Employment Act does
not prescribe any procedure
which an employer should follow before
dismissing an employee for misconduct, the rules of natural justice
stated above, nevertheless
dictate that there must be a valid reason
for such dismissal. To establish whether there is a valid reason for
imposing a sanction
on an employee, a fair procedure must be followed
by the employer prior to imposing a sanction on an employee,
especially the sanction
of dismissal. A fair procedure means that a
fair disciplinary enquiry must be held. In the Spie Batignolles –
case, supra, the court has set out these general guidelines or
rules of equity for a fair disciplinary enquiry. As the court has
set out these
rules in so many subsequent judgments, they will not be
repeated here.

[41] The
basic requirement for a procedurally fair dismissal is set out in
article 7 of ILO Convention No.158 of 1982, which provides
as
follows:

“{t}he
employment of a worker shall not be terminated for reasons

related
to the worker’s conduct or performance before he is provided with
an opportunity to defend himself against the allegations
made,
unless the employer cannot reasonably be expected to provide the
opportunity”.

[42] In this case
the manager stated that a fair disciplinary enquiry had been held in
respect of both applicants prior to their dismissal.
To corroborate
this evidence he produced minutes of each disciplinary enquiry and
also called the office clerk, who chaired the
disciplinary hearing,
as a witness.

[43] The court
however finds that the said disciplinary hearing was flawed in more
ways than one. Firstly the office clerk was appointed
chairperson of
the disciplinary hearing. The manager tried to justify it by saying
that although she is still only an office clerk,
she has been working
for the respondent for several years. The court rejects this
explanation as nonsensical. An office clerk remains
an office clerk
no matter in what other name you try and dress her.

[44] The court
finds that for a fair disciplinary enquiry the chairperson must be
someone from the ranks of management or at least
a managerial
employee, which the office clerk is not. The one assessor asked her
if she, as office clerk had the power to dismiss
an employee and she
said no, but as a chairperson she has such authority. Neither she
nor the manager could explain this sudden
change from no power to
full power. Her aforesaid reply, the court therefore also finds
nonsensical. If she has no power to dismiss
as office clerk, where
does she then suddenly get this power from?

[45] The court
therefore finds that the appointment of the officer clerk as
chairperson of a disciplinary hearing was totally inappropriate
and
also wrongful in terms of labour law principles. On this basis alone
the court finds that the said dismissals were procedurally
unfair.

[46] That is
however not the end of the story. Even if, for argument sake, it is
accepted that the office clerk could have presided
at the
disciplinary hearing, such proceedings would also have been flawed on
the following second ground.

[47] Both
applicants testified that the chairperson adjourned the proceedings
for a few minutes to consider her judgment and when
she returned, she
said that this matter was too difficult for her to decide. The
manager who was the complainant and the prosecutor
at this
disciplinary hearing then took over and found both applicants guilty
of breach of trust and dismissed both of them on notice.

[48] The manager
and the office clerk both denied this and said the office clerk had
found them guilty and dismissed them. Judging
from the minutes of
the disciplinary hearing the court finds that the office clerk was
totally out of her depth and incompetent to
preside at a disciplinary
enquiry. The court finds that the probabilities therefore favour the
version of the applicants and finds
that this matter was too
difficult for the office clerk to come to a decision and that they
were dismissed by the manager.

[49] As to a
presiding officer not applying his/her own mind, John Grogan, op.cit.
states the following at page 148:

“Presiding
officers are expected to apply their own minds
to the evidence led at the inquiry and to take decisions based on
those facts. Should a presiding officer abdicate the responsibility
of taking the decision to another, this would amount to a
disqualifying bias because the decision itself would be affected by
extraneous
considerations. The degree to which a presiding officer
is permitted to place himself or herself under the direction of
others was
considered in SA Breweries v FAWU & others.
The two employees in that case
were dismissed for malicious damage to property and assault. The
court held that the dismissals were
unfair because the chairperson of
the disciplinary inquiry had consulted two superiors prior to his
decision and had been advised
by one in the presence of the other
that dismissal was the appropriate sanction.” [(1992 1 LCD 16
(LAC)]

[50] The court
agrees with the above citation and finds that the dismissal of both
applicants was also procedurally unfair on this
ground.

Compensation

[51] Having found
that the dismissal of the applicants was unlawful as well as
substantively and procedurally unfair, will therefore
entitle them to
an award of compensation, as they are not interested in
reinstatement.

[52] Section 19
(2) of the Trade Disputes Act, No.15 of 2004 sets out seven factors
which the court may (emphasis supplied) take into account in
assessing a fair and an appropriate amount of compensation and the
court will briefly deal
with these factors. The factors mentioned in
subparagraphs (a) and (c), actual and future loss and the applicant’s
prospects of
finding other equivalent employment, are closely related
and will be considered by the court in this case in favour of the
applicants.

[53] The
applicants testified that since their dismissal they have been trying
to find other employment but without success. They
have therefore
both been without work and without income for 13½ months.

[54] The court
finds that the factor mentioned in subparagraph (b), the ages of the
applicants, are not really relevant. The first
applicant is 35 years
old and the second applicant is 27 years old. Their ages as such
should therefore not have prevented them
from finding other
employment.

[55] The factor
mentioned in subparagraph (d), the circumstances of the dismissal, is
very relevant and the court will consider it
in favour of the
applicants as the respondent had no valid reason for dismissing them
and also followed no proper disciplinary procedure
prior to
dismissing them.

[56] The factors
mentioned in subparagraphs (e) and (f) are not relevant in this case.
Similarly the court finds that the factor
mentioned in subparagraph
(g), the employer’s ability to pay, is not relevant, as there is no
evidence as to ability or inability
to pay.

[57] By using the
word “may”
in the said section 19 (2), the court finds that the legislature did
not intend the said seven factors, mentioned in section 19 (2),
which
the court may
take into account in assessing the amount of compensation, to be
exhaustive. They are merely illustrative. This means that there
can
be other factors as well, which the court may take into account.

[58] One such
factor, not mentioned in section 19 (2), which the court finds
relevant and will take into account in favour of the
respondent, is
the fact that the respondent has paid the applicants one month’s
notice pay each in lieu of notice. This court
has already stated in
numerous previous judgments that an employer can only dismiss an
employee on notice if he has a valid reason
for doing so. It
therefore follows that if an employer has no valid reason for
dismissing an employee on notice, he may also not
dismiss the
employee by giving him/her notice pay in lieu of notice in terms of
section 19 (a) of the Employment Act. That means
that if dismissal
on notice does not enter the picture, notice pay in lieu of notice
can also not enter the picture. To put it differently,
where an
employee is dismissed, but the court finds that the employer had no
valid reason for dismissing him/her, then such employee
is not
legally entitled to notice pay. If such notice pay has however
already been paid, then it must be deducted from any award
of
compensation made in favour of such an employee.

[59] Having
considered the aforesaid factors in favour of both parties, leaving
aside for the moment the notice pay, the members of
the court are
agreed that a fair and an appropriate award of compensation, in the
particular circumstances of this case, would be
compensation equal to
5 months monetary wages for each applicant. From this must then be
deducted the one month’s notice pay,
which means that each
applicant is entitled to compensation equal to 4 months monetary
wages. The amounts so to be awarded to the
applicants are not wages
but compensation. The full amounts without any deductions, must
therefore be paid to the applicants.

[60] The court
accepts the applicants’ undisputed evidence that they worked 9
hours per day and 5 days a week. They could not remember
what their
hourly rate of pay was. According to the respondent’s wages
register their hourly rate of pay was P2.90, which at that
time was
also the minimum rate of payment. The applicants did not dispute
this. In terms of section 95 (8) of the Employment Act
a 5 day
working week converts to a 22 day working month. To calculate an
employee’s monthly rate of payment his daily rate of
payment must
be multiplied by 22. The applicants’ daily rate of payment was
P26.10 (9 x P2.90). Their monthly rate of payment
was therefore
P574.20 (22 x P26.10).

[61] Both
applicants are therefore each entitled to payment of the amount of
P2296.80 (4 x P574.20), as compensation.

Severance
benefit payment

[62] The first
applicant testified that he was unfairly dismissed as he was about to
complete his 60 months of continuous employment
with the respondent.
He said he was still 6 months short of his 60 months and he therefore
now wants a pro rata severance benefit payment for the months
he has worked.

[63] Section 27 of
the Employment Act sets out when and how severance benefit payments
should be paid. In the case of K. Ben and Another v. Green
Industrial Enterprises Corporation (Pty) Ltd, case no. IC. 20/95
(J.35), dated 20 December 1995, the court found that a severance
benefit shall be payable at the conclusion of
each period of 60
months continuous employment with the same employer, but to qualify
for the first severance benefit payment, an
employee must have
completed the full first 60 months of continuous employment. The
court also found that although section 27 does
not specifically state
that a severance benefit shall be paid pro rata in the second
or further 5 year periods, on an analysis of section 27, it is clear
that the legislature intended that a severance
benefit shall also be
paid on a pro rata basis for one, two, three or more
additional months in the second or further periods of 60 months.
These findings were confirmed
by the Court of Appeal of Botswana in
the appeal case of Green Industrial Enterprises Corporation (Pty)
Ltd v. K. Ben & Another, Civil Appeal No. 14/96, dated 28
January 1997.

[64] As the first
applicant has not completed his full first 60 months of continuous
employment with the respondent, the court finds
that he is not
entitled to a pro rata severance benefit payment.

Determination

[65] The court
consequently makes the following determination:

1. The termination
of the contracts of employment of the first applicant, Othusitse
Sebati and of the second applicant, Keagile Nokane,
by the respondent
on 28 January 2005, was unlawful as well as substantively and
procedurally unfair.

2. In terms of
section 24 (1) (a) of the Trade Disputes Act, the respondent is
hereby directed to pay to each of the two applicants
the amount of
P2296.80, being compensation.

3. The first
applicant is not entitled to a pro rata severance benefit
payment.

4. The respondent
is hereby further directed to pay the said amounts, referred to in
subparagraph [63] 2 hereof, totalling P4593.60,
to the applicants,
through the office of the registrar of this court on or before
Friday, 19 May 2006.

5. No order is
made as to costs.

Dated at Gaborone
this day of April 2006

_________________________

D.
J. de Villiers

INDUSTRIAL COURT JUDGE

We agree on the
facts:

__________________________

T. E.
K Pheko

NOMINATED MEMBER (UNION)

____________________________

M. T.
Mogami

NOMINATED
MEMBER (BOCCIM)

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