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Employees have limited right to interdict employer from carrying out disciplinary hearings

PRIMA FACIE


There are many instances where the Industrial Court has stopped the employer from carrying out disciplinary hearing against errant employees. The reasons range from delay in pressing charges, double jeopardy, and bias among other factors.

The Court of Appeal has clarified the approach to be taken when an employee seeks to stop a disciplinary hearing. The decision has caused confusion as it has been interpreted by some(the employer no doubt falls into this category ) to mean that an employee cannot even in appropriate circumstances interdict an employer from carrying out a disciplinary hearing.


This decision will, of course, be clarified in the near future. The decision made by the Court followed an appeal launched by Debswana Diamond Mining Company. Industrial Court Juge Bahuma had granted Patrick Mwenge an order which read “The respondent is hereby interdicted from conducting disciplinary proceedings against the applicant”


The Appeals Court comprised of Justice Legwaila(deceased), Lestedi and Gaongalelwe. Justice Legwaila one of the pioneering Industrial Court Judges penned the decision. He wasted no time in condemning the inelegant drafting of the Order(it seems the Court of Appeal always has complaints about decisions made by lower Courts either that the Court below decided the matter on facts, not before it or for some other reason).Judge Bahuma’s Order gave a blanket protection against all future disciplinary hearings against Mwenge.
Mwenge had been charged with two charges. These were “serious noncompliance with the Company Code of Conduct and ethics”


“wilful disclosure”


The Industrial Court had granted the interdict on the basis that Debswana had waived the right to institute disciplinary proceedings against Mwenge.There was according to the Court a long delay in taking disciplinary steps. The decision was based on the reading of the proviso to Section 26(1) of the Employment Act. In terms of this Section, an employer waives its right to discipline an employee if there is a delay in instituting the disciplinary process.


Justice Legwaila clarified that Section 26(1) is not there for the employees taking. He stated that “There is, therefore, no doubt that as a general principle, an employee has the right to object to being disciplined after the lapse of a reasonable time. That is simply the legal principle but the employee complaining that that legal right is being breached must provide a factual basis for the assertion.”


The Court Overturned Justice Bahuma’s decision. Justice Legwaila emphasised that an interdict is an extraordinary, unusual and drastic remedy not be granted lightly. His words are worth repeating “Because of the facts of this case, I believe it is apposite to open the discourse in answering the issues raised by reminding courts of the very important but probably routinely glossed over words of caution repeated by Tebbutt JA (as he then was) in the case of Spectra V First National Bank (1995) BLR 210 CA at 214C-D-‘an interdict in the South African context has been described as an “unusual, extraordinary and discretionary remedy”.

It is not available to a litigant who is possessed of another or alternative remedy” Those strong words, extraordinary, unusual and drastic, implore us as Judges to tread with caution and to satisfy ourselves that indeed there is no “other alternative remedy” before we close the door to normal commercial or labour relations.”


What then is an alternative remedy? The Judge of Appeal answered as follows “…I need to briefly refer to the no remedy requisite. In this case, the Court a quo should have ben alerted from the outset that this was not a case for an interdict. The applicant had a remedy ready and prepared for him and guaranteed by law in the form of an internal disciplinary hearing. That guaranteed him the right to defend himself before a panel that was expected to apply the rules of fairness. That remedy should still be escalated to legal redress through the courts if need arose. A reinstatement and/or damages are redresses that come to mind where the ultimate disciplinary punishment by the employer was to be found to have be unlawful”


With these last words, it seems the Judgement has effectively put a curb on an employee’s right to interdict a disciplinary hearing. That, in fact, is the theme of the entire Judgement. The Court emphasised that employees should not spurn an initial opportunity to be heard at a disciplinary forum. Employees should tread carefully before attempting to interdict disciplinary process lest they are told as Mwenge “What was the respondent talking about running to court alleging a delay in disciplining him”

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The Daring Dozen at Bari

8th December 2020
JEFF---Batswana-smoke-unit

Seventy-seven years ago, on the evening of December 2, 1943, the Germans launched a surprise air raid on allied shipping in the Italian port of Bari, which was then the key supply centre for the British 8th army’s advance in Italy.

The attack was spearheaded by 105 Junkers JU88 bombers under the overall command of the infamous Air Marshal Wolfram von Richthofen (who had initially achieved international notoriety during the Spanish Civil War for his aerial bombardment of Guernica). In a little over an hour the German aircraft succeeded in sinking 28 transport and cargo ships, while further inflicting massive damage to the harbour’s facilities, resulting in the port being effectively put out of action for two months.

Over two thousand ground personnel were killed during the raid, with the release of a secret supply of mustard gas aboard one of the destroyed ships contributing to the death toll, as well as subsequent military and civilian casualties. The extent of the later is a controversy due to the fact that the American and British governments subsequently covered up the presence of the gas for decades.

At least five Batswana were killed and seven critically wounded during the raid, with one of the wounded being miraculously rescued floating unconscious out to sea with a head wound. He had been given up for dead when he returned to his unit fourteen days later. The fatalities and casualties all occurred when the enemy hit an ammunition ship adjacent to where 24 Batswana members of the African Pioneer Corps (APC) 1979 Smoke Company where posted.

Thereafter, the dozen surviving members of the unit distinguished themselves for their efficiency in putting up and maintaining smokescreens in their sector, which was credited with saving additional shipping. For his personal heroism in rallying his men following the initial explosions Company Corporal Chitu Bakombi was awarded the British Empire Medal, while his superior officer, Lieutenant N.F. Moor was later given an M.B.E.

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A Strong Marriage Bond Needs Two

8th December 2020

Remember: bricks and cement are used to build a house, but mutual love, respect and companionship are used to build a HOME. And amongst His signs is this: He creates for you mates out of your own kind, so that you may find contentment (Sukoon) with them, and He engenders love and tenderness between you; in this behold, there are signs (messages) indeed for people who reflect and think (Quran 30:21).

This verse talks about contentment; this implies companionship, of their being together, sharing together, supporting one another and creating a home of peace. This verse also talks about love between them; this love is both physical and emotional. For love to exist it must be built on the foundation of a mutually supportive relationship guided by respect and tenderness. As the Quran says; ‘they are like garments for you, and you are garments for them (Quran 2:187)’. That means spouses should provide each other with comfort, intimacy and protection just as clothing protects, warms and dignifies the body.

In Islam marriage is considered an ‘ibaadah’, (an act of pleasing Allah) because it is about a commitment made to each other, that is built on mutual love, interdependence, integrity, trust, respect, companionship and harmony towards each other. It is about building of a home on an Islamic foundation in which peace and tranquillity reigns wherein your offspring are raised in an atmosphere conducive to a moral and upright upbringing so that when we all stand before Him (Allah) on that Promised Day, He will be pleased with them all.

Most marriages start out with great hopes and rosy dreams; spouses are truly committed to making their marriages work. However, as the pressures of life mount, many marriages change over time and it is quite common for some of them to run into problems and start to flounder as the reality of living with a spouse that does not meet with one’s pre-conceived ‘expectations’. However, with hard work and dedication, couples can keep their marriages strong and enjoyable. How is it done? What does it take to create a long-lasting, satisfying marriage?

Below are some of the points that have been taken from a marriage guidance article I read recently and adapted for this purposes.

POSITIVITY
Spouses should have far more positive than negative interactions. If there is too much negativity — criticizing, demanding, name-calling, holding grudges, etc. — the relationship will suffer. However, if there is never any negativity, it probably means that frustrations and grievances are not getting ‘air time’ and unresolved tension is accumulating inside one or both partners waiting to ‘explode’ one day.

“Let not some men among you laugh at others: it may be that the (latter) are better than the (former): nor let some women laugh at others: it may be that the (latter) are better than the (former): nor defame nor be sarcastic to each other, nor call each other by (offensive) nicknames.” (49:11)

We all have our individual faults though we may not see them nor want to admit to them but we will easily identify them in others. The key is balance between the two extremes and being supportive of one another. To foster positivity in a marriage that help make them stable and happy, being affectionate, truly listening to each other, taking joy in each other’s achievements and being playful are just a few examples of positive interactions.
Prophet Muhammad (PBUH) said: “The believers who show the most perfect faith are those who have the best character and the best of you are those who are best to their wives”

UNDERSTANDING

Another characteristic of happy marriages is empathy; understanding your spouses’ perspective by putting oneself in his or her shoes. By showing that understanding and identifying with your spouse is important for relationship satisfaction. Spouses are more likely to feel good about their marriage and if their partner expresses empathy towards them. Husbands and wives are more content in their relationships when they feel that their partners understand their thoughts and feelings.

Successful married couples grow with each other; it simply isn’t wise to put any person in charge of your happiness. You must be happy with yourself before anyone else can be.  You are responsible for your actions, your attitudes and your happiness. Your spouse just enhances those things in your life. Prophet Muhammad (PBUH) said: “Treat your women well and be kind to them for they are your partners and committed helpers.”

COMMITMENT

Successful marriages involve both spouses’ commitment to the relationship. The married couple should learn the art of compromise and this usually takes years. The largest parts of compromise are openness to the other’s point of view and good communication when differences arise.

When two people are truly dedicated to making their marriage work, despite the unavoidable challenges and obstacles that come, they are much more likely to have a relationship that lasts. Husbands and wives who only focus on themselves and their own desires are not as likely to find joy and satisfaction in their relationships.

ACCEPTANCE

Another basic need in a relationship is each partner wants to feel valued and respected. When people feel that their spouses truly accept them for who they are, they are usually more secure and confident in their relationships. Often, there is conflict in marriage because partners cannot accept the individual preferences of their spouses and try to demand change from one another. When one person tries to force change from another, he or she is usually met with resistance.

However, change is much more likely to occur when spouses respect differences and accept each other unconditionally. Basic acceptance is vital to a happy marriage. Prophet Muhammad (PBUH) said: “It is the generous (in character) who is good to women, and it is the wicked who insults them.”
“Overlook (any human faults) with gracious forgiveness.” (Quran 15:85)

COMPASSION, MUTUAL LOVE AND RESPECT

Other important components of successful marriages are love, compassion and respect for each other. The fact is, as time passes and life becomes increasingly complicated, the marriage is often stressed and suffers as a result. A happy and successful marriage is based on equality. When one or the other dominates strongly, intimacy is replaced by fear of displeasing.

It is all too easy for spouses to lose touch with each other and neglect the love and romance that once came so easily. It is vital that husbands and wives continue to cultivate love and respect for each other throughout their lives. If they do, it is highly likely that their relationships will remain happy and satisfying. Move beyond the fantasy and unrealistic expectations and realize that marriage is about making a conscious choice to love and care for your spouse-even when you do not feel like it.

Seldom can one love someone for whom we have no respect. This also means that we have to learn to overlook and forgive the mistakes of one’s partner. In other words write the good about your partner in stone and the bad in dust, so that when the wind comes it blows away the bad and only the good remains.

Paramount of all, marriage must be based on the teachings of the Noble Qur’an and the teachings and guidance of our Prophet Muhammad (PBUH). To grow spiritually in your marriage requires that you learn to be less selfish and more loving, even during times of conflict. A marriage needs love, support, tolerance, honesty, respect, humility, realistic expectations and a sense of humour to be successful.

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Chronic Joblessness: How to Help Curtail it

30th November 2020
Motswana woman

The past week or two has been a mixed grill of briefs in so far as the national employment picture is concerned. BDC just injected a further P64 million in Kromberg & Schubert, the automotive cable manufacturer and exporter, to help keep it afloat in the face of the COVID-19-engendered global economic apocalypse. The financial lifeline, which follows an earlier P36 million way back in 2017, hopefully guarantees the jobs of 2500, maybe for another year or two.

It was also reported that a bulb manufacturing company, which is two years old and is youth-led, is making waves in Selibe Phikwe. Called Bulb Word, it is the only bulb manufacturing operation in Botswana and employs 60 people. The figure is not insignificant in a town that had 5000 jobs offloaded in one fell swoop when BCL closed shop in 2016 under seemingly contrived circumstances, so that as I write, two or three buyers have submitted bids to acquire and exhume it from its stage-managed grave.

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