<TITLE>Review of the procedures for the resolution of industrial disputes in Botswana / by Andrew Briscoe.

FES

TEILDOKUMENT:

5. Evaluation of Key Aspects of the Industrial Dispute Resolution Process

5. Evaluation of Key Aspects of the Industrial Dispute Resolution Process

5.1 Introduction

The aim of this part of the review is to assess the effectiveness of the dispute resolution process, and of the amendments made to the process by the 1997 Trade Disputes Amendment Act. For this purpose, interviews were conducted with the Department of Labour and Social Security (Commissioner of Labour), the Botswana Federation of Trade Unions (BFTU, Secretary General), the Botswana Confederation of

page-number of print edition: 27

Commerce, Industry and Manpower (BOCCIM, Deputy Director), and the Industrial Court (President of the Court, Judge de Villiers).

In particular, the following aspects were investigated:

The role of the District Labour offices (see 4.2)
The role of the Commissioner of Labour (see 4.3)
The accessibility of the new Industrial Court (see 4.4)
The resourcing of the system and the delays in obtaining justice (see 4.5)
The role of the Industrial Court as a court of equity as well as a court of law (see 4.6)
The remedies, which the Industrial Court has at its disposal (see 4.7)

5.2 The Role of the District Labour Office

At first sight, the District Labour Offices appear to be functioning effectively. The 1995 Annual Report of the Department of Labour and Social Security indicates that 81.9% (6,134 cases) of the total number of industrial disputes in 1995 were settled at the level of the District Labour office (see paragraph 4.2 of the Report). However, considerable dissatisfaction with the service provided by district labour offices was revealed in the interviews:

BOCCIM believes that the major problems in the present system arise at the level of the district labour office. Labour officers are poorly trained, and most continue to act as if they were adjudicators rather than as mediators or conciliators. Employers waste a lot of time at these meetings - a meeting scheduled to take place at 9 am will invariably take place be 11.30 am. The meetings are continually interrupted by phone calls, and BOCCIM recommends that a separate room should be used for mediation (not the officer's office). Labour officers should also do much more investigation before calling the employer to these meetings.
page-number of print edition: 28
A further problem is that district labour officers give conflicting advice on employment law issues (and as a result of complaints, it is reported that some labour officers will no longer give any such advice to employers).
BFTU is also concerned about inefficiencies at the level of the district labour office, and believes that some labour officers are being bribed by employers, (although evidence of this is not available).

The need to enhance the capacity and skills of labour officers is regarded by the Commissioner of Labour as the greatest challenge facing the Department. There is currently no training programme developed in Botswana for labour officers (a few officers each year go to the African Regional Labour Administration Centre in Harare for a course which - depending on the subject matter - may have greater or lesser relevance to their work). It is accepted that the vast majority of labour officers are still acting as adjudicators rather than mediators (this is perhaps not surprising because their role changed literally overnight, from 31 March 1994 to 1 April 1994, with no training whatsoever for their new mediation role in dispute resolution). Employers and employees also still tend to perceive district labour officers as adjudicators rather than mediators, as evidenced by the number of lawyers or other advisers who represent their clients at district labour office meetings.

5.3 The Role of the Office of the Commissioner of Labour

Both the BFTU and BOCCIM expressed satisfaction with the way in which mediation at this level is conducted. The staff appointed by the Commissioner to fulfil this role are professional and significantly better skilled than district labour officers. BOCCIM did however comment that in some cases - such as those involving a protest against dismissal where the employment relationship has clearly broken down irrevocably - a further attempt at mediation by the Commissioner's office is often futile (this concern has been addressed by the amended procedure which now permits a district labour officer who is unable to negotiate a settlement of a dispute and who forms the opinion that there is no likelihood of a

page-number of print edition: 29

settlement by further mediation, to request the Commissioner to issue a section 7 certificate forthwith - see 3.3 above).

5.4 The Accessibility of the new Industrial Court

The Industrial Court was intended to provide an accessible and comparatively informal forum for resolving industrial disputes. Some employers who have appeared before the Court have romantically described it as the "People's Court". But how accessible is the Industrial Court to those who need its services? This issue can be considered under four headings:

Geographical accessibility
The need for representation
Costs
The rules and procedures of the Court

(a) Geographical accessibility

Although the Judge of the Court has often said that the Court will travel to hear cases wherever they arise, it is not practicable for the Court to travel great distances to hear a single case (which may even be settled out of court the day before it is due to be heard). In deciding whether to travel outside Gaborone, the Judge has therefore decided that the Court should only travel when the hearing of matters in a particular locality will occupy at least a week (otherwise, the cases must come to Gaborone). In this regard, it should be noted that out of the first 150 cases heard (and judged) by the Industrial Court, 95% were heard in Gaborone and 5% in Francistown.

(b) The need for representation

Section 21 of the Trade Disputes Act provides that any 'interested party in any proceedings under this Act may appear by advocate or be represented by any other person so authorised by such party". The effect of this section is that a party may choose whether to be represented by a lawyer (or by anyone else), or whether to be unrepresented. Whilst

page-number of print edition: 30

BOCCIM supports this rule, the BFTU argues that it gives the employer who can afford representation an unfair advantage over the employee (the BFTU would prefer to see a rule introduced which gives an unrepresented party the right to decide whether the other party may be represented).

At first sight, it appears fairly obvious that an unrepresented party is at a disadvantage. However, the inquisitorial style of the Court goes some way to reduce this disadvantage. The Judge does not hesitate to intervene where it is clear that an unrepresented party does not know rules of law or procedure, and there is an degree of informality in the way that evidence is presented.

Out of the first 150 cases heard (and judged) by the Industrial Court, employees (or trade unions) were represented in 30% of these cases, and unrepresented in 70% of cases. An analysis of the 30% of cases where employees were represented indicates that in 91% of these cases, representation was by a firm of attorneys, in 7% of these cases, representation was by a trade union officer or representative, and in the remaining 2% of these cases representation was by the University Legal Clinic.

Out of the first 150 cases heard (and judged) by the Industrial Court, employers were represented in 55% of these cases, and unrepresented in 45% of cases. An analysis of the 55% of cases where employers were represented indicates that in 96% of these cases, representation was by a firm of attorneys, and in the remaining 4% of these cases representation was by a firm of labour consultants. Closer analysis of these first 150 cases indicates an interesting trend: in the first 100 cases, employers were represented in 61% of the cases; however, in the last 50 cases, employers were only represented in 44% of the cases (this supports anecdotal evidence received by the writer, to the effect that employers are increasingly tending to question whether legal representation is necessary).

page-number of print edition: 31

(c) Costs

Each party is usually required to bear its own costs. Section 27 of the Trade Disputes Act provides that "no costs shall be awarded by the Court except against a party held by it to have acted frivolously or vexatiously, or with deliberate delay in the bringing or defending of a proceeding". Out of the first 150 cases heard (and judged) by the Industrial Court, in only one case has the court awarded costs against the loosing party. In this case (Barclays Bank of Botswana Ltd. v Botswana Bank Employees Union and others), the Court considered the Union's behaviour to have been both frivolous and vexatious occurred where, amongst other things, the Union claimed to be unaware that Barclays Bank had been declared an essential service and although "they knew they had no leg to stand on...... stubbornly and defiantly proceeded with their ill founded opposition right to the end" (per de Villiers J.).

(d) The rules and Procedures of the Court

Section 18 (6) of the Trade Disputes Act provides that 'the Court shall regulate its own procedures and proceedings as it thinks fit', and the Court has therefore drawn up a set of 'Rules for the Conduct of Proceedings in the Industrial Court'. Although these rules are considerably less technical than the rules which govern proceedings in the Magistrates Court and the High Court, they must appear formidable to the average unrepresented person who appears before the Court. There is however an overriding provision contained in the Trades Disputes Act which states that the Court is not "bound by the rules of evidence or procedure in civil or criminal proceedings and may disregard any technical irregularity which does not and is not likely to result in a miscarriage of justice": section 19 (1). In applying this provision, the Court takes steps that would never be contemplated in other civil courts: for example, if a party does not show up in Court for the hearing, a Court official will attempt to contact that party so that an alternative day for the hearing can be arranged. Nevertheless, the BFTU argues that proceedings in the Court remain technical and that the employer who can

page-number of print edition: 32

afford representation is therefore at an unfair advantage over the employee who cannot afford representation (see above at 4.4 (b)).

5.5 The Resourcing of the System and the Delays in Obtaining Justice

An examination of the first 150 judgements of the Industrial Court reveals that some considerable periods of time have elapsed between a dispute arising, and the Court giving judgement. Excluding those cases which were referred directly to the Court as a matter of urgency (see 3.3 above), the period of time between a dispute arising, and the Court giving judgement appears to vary from 6 months (in case number 1) to 32 months (in case number 79). The 'typical' length of time is perhaps between 14 and 18 months (it is not possible to be any more precise because some of the judgements 'in limine' do not include the relevant detail on time of dispute arising).

Although delays of this order are unfortunate, they are not necessarily due to inefficiencies in the system. Delays may arise at five stages:

The complainant may delay in reporting the matter to the district labour office.
Delays at the district labour office may arise because of various factors (for example, one or more parties may not turn up for the mediation meetings, or a file may be mislaid).
For similar reasons, there may be a delay when the office of the Commissioner of Labour is processing the file.
After the Commissioner of Labour has issued a 'section 7 certificate' which permits a party to take the matter to the Industrial Court, the complainant (or his representative) may delay in filing documents at the Industrial Court.
Delays after documents have been filed at the Industrial Court may arise for various reasons such as: a congestion of other cases (causing a delay in obtaining an appropriate date for the matter to be set down); the set down date is insufficient for the case to be fully heard (which results in the case being part heard and then
page-number of print edition: 33
postponed to a later date); and a lapse of time between the conclusion of the hearing and judgement being given.

In terms of the resourcing of the Industrial Court, the following issues were raised in interviews with relevant personnel:

The absence of a Registrar
The number of Industrial Court Judges
The number of nominated assessors
Measures to reduce delays

(a) The absence of a Registrar

Although the Rules for the Conduct of Proceedings in the Industrial Court anticipate the Appointment of a Registrar, no such person has yet been appointed (although an appointment is said to be imminent). The consequence of this failure is that the Industrial Court Judge has had to carry out many of the functions of a Registrar in addition to his usual duties - including, for example, the finding of appropriate premises in which the Court can sit when it is not in Gaborone.

(b) The number of Industrial Court Judges

It has been apparent to most observers for some time that the number of cases being referred to the Industrial Court requires the appointment of an additional judge. In the absence of another post being created, temporary Acting Judges have been appointed at times of particular crisis in the past year. It is understood that a second judicial post has now been created, as from first April 1998 and that in the interim period, temporary-acting appointments will again be made.

(c) The number of nominated assessors

In exercising the court's jurisdiction, a judge sits with two nominated members, generally referred to as 'assessors'. One of these assessors is selected by the judge from a panel of persons nominated by the organization representing employees or trade unions (the Botswana Federation of Trade Unions), and the other assessor is selected from a

page-number of print edition: 34

panel of persons nominated by the organization representing employers (the Botswana Confederation of Commerce Industry and Manpower).

The Act provides that the presiding judge shall sit alone when deciding any matter of law which has arisen (and also when deciding whether a matter for decision is a matter of law or a matter of fact): section 18 (2). Matters of fact are therefore decided by the judge and the two assessors, except where the assessors (or either of them) are absent, in which case the judge may sit alone (or with the remaining assessor) unless the judge for good reason decides that the hearing should be postponed: section 17 (6). Where the judge is sitting with the assessors, the decision of the majority is the decision of the court (provided that where there is no majority decision, the decision of the judge prevails): section 18 (3). Analysis of the first 150 cases heard and judged by the Industrial Court suggests that the nominated assessors are properly fulfilling their duty by sitting as impartial adjudicators of fact: in the 91 cases where the judge sat with the nominated assessors, the Court failed to reach a unanimous conclusion on matters of fact on only three occasions.

The trade unions have occasionally complained that employers do not release their nominated assessors from work to sit in the Court, and although this may well be true, the evidence suggests that it is the BOCCIM nominated assessors who have greatest difficulty in attending court hearings. Out of the first 150 cases heard (and judged) by the Industrial Court, in 59 of these cases, the Judge sat alone because the hearing only involved a point of law (these cases were generally concerned with legal arguments over the loopholes in the procedure which have now been removed by the 1997 Amendment Act). In the remaining 91 cases', where two nominated assessors should have been present: the BFTU nominated assessor was not available in 10 (11%) of the cases, and the BOCCIM nominated assessor was not available in 30 (33%) of the cases. In two of these 91 cases, the Judge heard the case alone because neither the BFTU nominated assessor nor the BOCCIM nominated assessor was available.

page-number of print edition: 35

The 1992 Amendment Act (which created the Industrial Court) provided that one of the two nominated assessors should be selected by the judge from a panel of six persons nominated by the BFTU, and that the other nominated assessor should be selected by the judge from a panel of six persons nominated by BOCCIM. The experience of the first 150 sittings suggests that because of absenteeism, the panels should be increased in number, which has now been effected: section 10 of the 1997 Amendment Act amends section 17 of the Act by increasing the size of the panels to ten persons per panel. Both the BFTU and BOCCIM welcome this amendment.

(d) Measures to reduce delays

Three measures already implemented or proposed will reduce delays:

The new procedure for dealing with protests against termination of employment, which will by-pass mediation by the office of the Commissioner of Labour (under the new procedure, where the labour officer is unable to negotiate a settlement of a dispute between the parties and he is of the opinion that there is no likelihood of a settlement by further mediation, he may request the Commissioner forthwith to issue a certificate in terms of section 7 for the dispute to be referred to the Industrial Court - see 3.3 above)
The proposed appointment of a Registrar to the Industrial Court will remove administrative burdens from the Judge. The Registrar will presumably also encourage pre-trial conferences where issues can be clarified and attention focused upon relevant issues.
The proposed appointment of a second Industrial Court Judge will reduce delays in hearing cases.

5.6 The Role of the Industrial Court as a Court of Equity as well as a Court of Law

The Industrial Court was established by section 17 (1) of the Trade Disputes (Amendment) Act [No. 23 of 1992 "for the purpose of settling

page-number of print edition: 36

trade disputes, and the furtherance, securing and maintenance of good industrial relations in Botswana". In one of its early decisions, the court declared itself to be both a court of law and a court of equity: Mbayi v Wade Adams (Botswana) (Pty) Ltd. [Case No. I.C. 30/94 . As a court of law, the Industrial Court acts like any other court in applying rules of common law and legislation, but as a court of equity, it "places a lot of emphasis upon fairness and reasonableness to both employer and employee" (per de Villiers, J., in Mbayi v Wade Adams (Botswana) (Pty) Ltd.). Although the reasons for this declaration were not stated in Mbayi v Wade Adams (Botswana) (Pty) Ltd., Judge de Villiers has subsequently explained both the basis and the implications of the ruling in explicit terms:

"Until convinced otherwise or until the Court of Appeal decides otherwise, I am of the view that this Industrial Court in Botswana is a court of law as well as a court of equity. The reasons for saying it is also a court of equity is inter alia because of the Court procedure being less formal and the wide discretion given to the Court in the [Trade Disputes] Act. It is less formal to make it more accessible to the parties who are laymen and who often appear in person in court, i.e. without representation. The sittings are however not so informal, as the Judge robes for court sessions and so do attorneys and advocates who appear in court. A hearing in the Industrial Court follows as near as possible the procedure adopted in the High Court as to the leading of evidence, cross examination, re-examination, argument, etc.

In order to achieve the purpose for which the Industrial Court was established, namely to settle trade disputes and to further, secure and maintain good industrial relations in Botswana, the Court has been given discretionary powers in the Act of which the following are some:

1. Section 18 (6) of the said Act provides that the Court shall regulate its own procedure and proceedings, as it considers fit.

page-number of print edition: 37

2. Section 19 (1) of the said Act provides:
'The Court shall not be bound by the rules of evidence or procedure in civil or criminal proceedings and may disregard any technical irregularity which does not and is not likely to result in a miscarriage of justice.''

3. In terms of section 18 (1) (d) of the said Act, the Industrial Court can "give all such directions and do all such things as maybe necessary or expedient for the expeditious and just hearing and determination of any dispute before it."

4. In terms of section 18 (1) (c) of the said Act, the Court may "refer any matter to an expert and, at its discretion, accept his report as evidence in the proceedings."

5. Section 18(5) of the said Act further assists the Court in that, in its discretion, it may, without any evidence having been led in regard thereto, take the following aspects into consideration when deciding a dispute:
"In the exercise of its powers under this Act, the Court may take into consideration any existing code of industrial practice agreed between the Government, employers' organisations and trade unions, and any guidelines or directives relating to wage and salary levels, and any other terms and conditions of employment that may, from time to time, be issued by the Government."
The Ministry of Labour and Home Affairs has prepared, in consultation with the Labour Advisory Board, a National Industrial Relations Code of Practice to provide practical guidelines on the day to day implementation of fair labour practices and the promotion of good industrial and human relations at the workplace. This Code of Practice has been approved and has been printed. Copies are available at the Government Printer at P2 a copy. This Code is for example a code referred to in the said Section 18(5), which the Court may take into consideration in coming to a decision.

page-number of print edition: 38

As the Industrial Court is a creature of statute it can only operate within the ambit of the said Act and other applicable Acts. The Industrial Court therefore has no inherent powers like the High Court. The said Act however only provides the framework of the Court's powers and as long as it keeps within that framework, it has the aforesaid discretionary powers to decide on details how best to achieve the aforesaid purpose for which the Industrial Court was established. In so doing the Court implements well established ILO principles of fairness and reasonableness, thus sitting as a court of equity. These principles are found in various ILO documents, too many to enumerate and as specific problems arise in court regarding for example dismissal, retrenchment, disciplinary hearing, strikes, etc, the Court sets out in its judgements these principles which it deems applicable to industrial relations in Botswana. These principles will therefore be found in a collection of case law that will be built up over a period of time." [Judge de Villiers, pp. 4-6, & 9]

In the three years since the ruling in Mbayi v Wade Adams (Botswana) (Pty) Ltd. was made, the application by the Industrial Court of principles based on fairness and reasonableness has had a considerable impact on the law relating to discipline, dismissal and retrenchment. In Phirinyana v Spie Batignolles, for example, the Court ruled that before dismissing an employee summarily on grounds of misconduct, an employer must observe principles of procedural fairness, the most important of which is that "an employee charged with misconduct must be granted a fair opportunity to state his case". This duty had not previously been required of employers in the private sector in Botswana.

Another important ruling based on fairness concerns dismissal with notice. Prior to the intervention of the Industrial Court, an employer in Botswana could dismiss an employee at any time by giving notice (or paying salary in lieu of notice). This was generally regarded as the most significant right of all for the employer, since it gave an employer power over his or her employees. This rule has now been changed by the Industrial Court, so that an employer may not now dismiss an employee

page-number of print edition: 39

by giving notice unless the employer has a 'good reason' for so doing which should be communicated to the employee (who should then be given an opportunity to answer any allegation of misconduct at a disciplinary hearing).

As illustrated by the examples given, most decisions made by the Industrial Court when sitting as a court of equity have favoured the employee by restricting the rights of the employer. Nevertheless, BOCCIM does not object to this approach which is based on a perception of fairness because it is sympathetic to the Court's objective of improving industrial relations in the country, to the advantage of both employers and employees. The problem is that the Court of Appeal has not yet considered an appeal in which the Industrial Court's status as a court of law and a court of equity has been questioned. When and if such an appeal is made, it is therefore possible that the judges in the Court of Appeal may disagree with Judge de Villiers' interpretation of the Industrial Court's status, and rule that the Industrial Court has no equitable status. Such a ruling by the Court of Appeal would create confusion with regard to some important substantive areas of labour law. It would therefore be sensible if Parliament were to pass a statute, which removes the existing uncertainty and clarifies the status of the Industrial Court as a court of law and a court of equity.

5.7 The Remedies which the Industrial Court has at its Disposal

Where it determines that an employee has been wrongfully dismissed, "the Court may, subject to its discretion to make any other order which it considers just, ....order reinstatement of the employee, with or without compensation, or order compensation in lieu of reinstatement": s 24 (1) (a). The Court thus has three remedies at its disposal: reinstatement, compensation and 'any other order it considers just'.

The interviews with the BFTU and BOCCIM suggest that two remedies are problematic: compensation and compulsory reinstatement.

page-number of print edition: 40

5.7.1 Compensation

In assessing the amount of compensation to be paid under section 24 (1), the Trade Disputes Act provides that "the Court may take the following factors into account-

The actual and future loss likely to be suffered by the employee as a result of the wrongful dismissal;
The age of the employee;
The prospects of the employee in finding other equivalent employment;
The circumstances of the dismissal;
The acceptance or rejection by either the employer or the employee of any recommendations made by the Court for the reinstatement of the employee;
Whether or not there has been any contravention of the terms of any collective agreement or of any law relating to employment by the employer or the employee;
The employer's ability to pay": s 24 (2).

The Act further provides that compensation may be ordered either in addition to reinstatement or in lieu of reinstatement: s 24 (1) (a). In a case where compensation is ordered in addition to reinstatement, "any compensation ordered shall not exceed the actual pecuniary loss suffered by the employee as a result of wrongful dismissal": s 24 (1) (ii). In any other case, the amount of compensation ordered "shall not exceed six months monetary wages": s 24 (1) (ii). It is this last provision which is problematic. The BFTU argues that the limit of six months compensation is unreasonable, and that the Industrial Court should be able to award whatever compensation is considered fair and reasonable in the light of the criteria stated in section 24 (2). The writer agrees with this argument.

5.7.2 Compulsory Reinstatement

The Trade Disputes Act provides that compulsory reinstatement should only be considered:

page-number of print edition: 41

Where the termination was found to be unlawful within the meaning of section 23 of the Act (e.g. where it was motivated on the grounds stated in the next paragraph); or
Where the termination was found to be motivated on the grounds of sex, trade union membership, trade union activity, the lodging of a complaint or grievance, or religious, tribal or political affiliation; or
Where the employment relationship has not irrevocably broken down: s 24 (1)

According to BOCCIM, reinstatement is considered by employers to be an unrealistic remedy, which will only lead to further problems. It is, however, for this reason that the circumstances in which reinstatement can be ordered are carefully defined in section 24 (1), and in the first 150 cases, the Court only ordered on-going reinstatement in one case (where the employer was not opposed to reinstatement). It is therefore suggested that this provision should not be altered.