The primary or principal source of Employment Law in Botswana is Statute. This is supplemented where necessary by the Roman Dutch Common Law (i.e. where statutory legislation is silent on any aspect of the employment relationship then the Roman Dutch Common law will apply).
The two most important statutes in respeect of Employment Law are theEmployment Act and the Trade Dispute's Act.
The Employment Act
The Employment Act sets out basic minimum rights and conditions of service that majority of employment contracts are subject to. The Act stipulates amongst other things:
- when Contracts of Employment can or cannot be lawfully terminated including when this can be done on notice or summarily and the basic procedures to be followed by the respective parties to the employment contract in this respect.
- procedures to be followed when retrenching or making Employees redundant
- the terminal benefits that an Employee is entitled to receive upon termination of his Contract of Employment
- the rights of expatriate Employees to be repatriated upon termination of their employment
- the minimum wage to be paid to employees in certain prescribed industries
- when wages or salaries are to paid
- when terminal benefits are to be paid
- when an Employer is permitted or prohibited to make deductions from wages
- what hours an Employee can be required to work
- what rest periods an Employee is entitled to
- what amount of leave (including sick and maternity leave) an Employee is entitled to
The Trade Disputes Act
The Trade Disputes' Act establishes the machinery by which Employment Disputes are to be settled. In this respect, the Act has established an Industrial Court to adjudicate over Employment Disputes.Act. The Act also establishes certain conciliatory and mediatory procedures which must in most cases be followed before Employees or Employers can bring an Employment dispute to the Industrial Court. The aim of the mediatory procedure is to settle or resolve disputes where possible through negotiation and thereby avoid the necessity of having to resort to litigation to resolve employment disputes which is both expensive and time consuming. In terms of the procedure set out in the Trade Disputes Act litigation in the Industrial Court is the last resort in the resolution of employment disputes. Mediation is effected through labour hearings presided over by a labour officer whose task it is to attempt to bring about a negotiated settlement between the parties. The said labour officer has no power to make awards or to adjudicate over the dispute, he or she is there for the sole purpose of mediation and nothing else. The hearings are not compulsory but a failure to attend can be taken into account by the Industrial court when making awards compensatory awards to litigants.
In terms of the Trade Disputes Act the Industrial Court is comprised of one Judge assisted by two Assessors. The Assessors are lay persons who are selected from the organisation representing Employees or Trade Unions in Botswana and from the organisation representing Employers in Botswana. The Industrial Court's powers are set out in the Act and are the following:
General Powers
-Hear and determine all trade disputes
-Interdict employees and employers from taking or continuing industrial action
-Give all such direction and do all such things as may be necessary or expedient for the just hearing and determination of any trade dispute before it.
Specific Powers
-The Court in cases of "wrongful dismissal" has the power to order reinstatement of an employee with or without compensation or alternatively, to order compensation in lieu of re-instatement.
-The Court in the case of "wrongful disciplinary action" has the power to order compensation.
-Where an Employee wrongfully terminates a Contract of Employment the Court has the power to make such order of compensation in favour of the Employer as it deems just
-The above powers to order compensation are however limited in all cases to the amount of 6 months monitory wages.
-The Industrial Court can award costs against a party where that party has acted frivolously or vexatiously or with deliberate delay in the bringing or defending of a proceeding.
-All decision's or awards of the Industrial Court have the same force and effect as a judgment or order of a High Court and are enforceable in the same manner as such judgment.
The Industrial Court in exercising the above powers has determined that it is a Court of Equity as well as a court of law and in this respect requires that in addition to the basic rights and conditions of service and employers acting lawfully in respect of their relationship will depart from strict principles of law and utilise principles of fairness and natural justice where it deems. This in effect means that the Court is not bind by precedent of previous decisions. It further means that the Court when dealing with Employment Relationships requires that both parties are to deal with each other in a fair and just manner. What this in practical terms means is that the principles of natural justices must be applied by Employers when dealing with Employees especially in the realm of dismissal for misconduct and retrenchment.
The content of this article is intended to provide general information on the subject matter. It is not therefor a substitute for specialist advice.
Minchin & Kelly (Botswana) - Gaborone +267 312734
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