The following legal issues arise;
1. WHETHER IT WAS RIGHT TO GIVE KAGISO A FINAL WRITTEN
WARNING BEFORE HE COULD BE GIVEN A WRITTEN WARNING
2. WHETHER IT WAS RIGHT FOR KAGISO TO BE GIVEN A FINAL
WRITTEN WARNING EFFECTIVE F OR 36 MONTHS
3. WHETHER OR NOT SUSPENSION, PENDING DISCIPLINARY HEARING
WITHOUT PAY WAS VALID
4. WHETHER OR NOT THE SUSPENSION OF KAGISO FOR 3 MONTHS , 2
OF WHICH ARE UNPAID IS VALID.
5. WHETHER THE WHOLE DISCIPLINARY PROCESS WAS SUBSTANTIALLY
AND PROCEDURALLY FAIR
6. WHETHER A CRIMINAL PROCEEDING CAN BE HELD SIMULTANEOUSLY
WITH A DISCIPLINARY HEARING
Employee relations look specifically to developing and maintaining positive
relationships with a company's employees. The major role is liaising between
employer and employees as well as building in benefits and policies to create
a healthy workplace. While an employer has a duty to provide work to an
employee the employee as well has a duty to deliver the service efficiently
and competently. The employer as such has a duty to discipline employees
when they are out of line inured to maintain discipline and order at work.
This duty stems from the fact that an employer has invested in his business
and so should ensure that it is profitable and efficient by having certain level
of control over employees over daily events of the business. The employer
thus has a right in terms of this duty to (a)prescribe the standards of
performance and behavior and (b)take disciplinary measures against
transgressions of the set standards of performance and behavior. The
parameters of law to exercise this right relates to the disciplinary rules
themselves and their content as well as the disciplinary process.
The disciplinary rules are based on the principle that the rules set by an
employer must be valid, lawful and enforceable. They ought to contain
certain qualities.i.e. (a)they must not be illegal, (b)must be reasonable and
not impossible to observe,(c)must be known to employees,(d)must be fair
and non-discriminatory and finally (e) the rules must be intended to promote
efficiency and demonstrate an economic benefit. It is important to note that
this duty does not give an employer the license to make draconian and
illegal rules. In light of the above , The CEO shows an unfair application of
the rules [and to an extent the procedure as well] in that he is
discriminatory towards Tshepo. The CEO dismissed Tshepo ‘s appeal without
exercising impartiality because his decision was influenced by the sour
history between the both. It is also discriminatory in the sense that the
sanctions imposed towards Tshepo are more stringent than Kagiso’s. While
Tshepo faces an unfair dismissal , Kagiso faces not a dismissal but retains
his employment although he is demoted.
As already stated an employer is entitled to impose disciplinary measures
where an employee goes out of line. Sanctions to be taken by an employer,
the procedure as well as well as the process is largely determined by
contractual terms of parties and under common law. Generally an employer
is ought to weigh the behavior before passing a penalty. He ought to
consider certain factors such as the track record of an employee and the
like. An employee may give a warning [verbal , written or final] ,suspension
,demotion as well as termination-which is often a last resort. A verbal A
verbal warning is a list severe penalty which is informal in nature. A verbal
warning is often followed by a written warning which is a more formal
warning than the verbal and forms part of an employee's disciplinary record.
A final written warning follows a written warning and may be given to an
employee to the extent that any further breach would lead to termination.
The Employment Act does not provide when a final written warning would be
operative however, generally a final written warning would be valid for 12
months and must be in writing . Such a warning must also Provide what will
happen in future if the employee does not comply.
ISSUE NO 1
Typically and in most cases, employers generally follow a progressive
disciplinary process, which may involve issuing an initial written warning
before escalating to a final written warning or other disciplinary actions. As
provided above already ,a written warning follows a verbal warning followed
by a final written warning. As stated above an employee should take into
consideration the weight of behavior and track record of employee before
passing a sanction, therefore John should have considered the time between
the last poor performance in inspection and the recent failure by Tshepo-the
period is long [a year]. When determining as to which sanction to impose,
the employer must weigh factors like the amount of time between the recent
and last offence. Applying the principles of equity in this instance, it seems
rather that the imposition of a final written warning was harsh and should
have been given after imposition of a written warning. While statute does
no expressly provide for this, it remains the decision of the employer to
decide whether the sanction of a warning be consecutive or not.
ISSUE NO 2
Generally a final written warning is effective for 12 months therefore the
CEO erred in giving Kagiso a final written warning that was more than 12
months.
ISSUE NO 3
An employer may mandate that an employee cease from performing their
duties for a certain period of time which could either be pending a
disciplinary hearing or as a disciplinary penalty. Such suspension is justified
by the need to prevent the employee from tampering with witnesses and/or
anything related to the case. If an employee is suspended before the
disciplinary inquiry, he/she must be paid in full. If not, it can be argued that
the employee is being punished before he/she is found guilty.
In the case of Anti & Others v Kitso Private Secondary School1, the Court
noted that suspension of an employee from duty may be used as an interim
measure pending a disciplinary hearing . When an employer uses suspension
as an interim measure, he was essentially failing to provide the employee
with work . The general rule in Botswana was that such suspension should
therefore be on full pay unless the employee has broken his/her contract of
employment or the contract of employment had become, without default on
the part of the employer, impossible of performance. The employee cannot
be said to have breached the contract of employment when a finding has not
been done to that effect.
De Villiers J in Mbaakanyi v. Botswana Meat Commission2 was correct in
asserting that such suspension must therefore be on full pay because until
the enquiry is held, it will not be known or certain whether the employee has
broken his contract of employment or not. The employee is also available to
tender his services therefore there exists no valid reason as to why they
should not be remunerated. Applying the reasons discussed above on our
present scenario, Tshepho and Kagiso were suspended without pay , pending
a disciplinary hearing. This would appear to be unlawful since no culpability
was attached to them therefore there was no breach of contract.
In conclusion of this issue, Tshepho and Kagiso can rightfully sue to be paid
for the salary from when the suspension was meted out on 01 August until
when they were found guilty of breach of contract.
1
2
2004 (2) BLR 227 (IC)
1999 (1) BLR 286 (IC)
ISSUE NO 4
Generally, under common law an employer cannot suspend an employee
without pay. However he can do so if the employee consents to such or a
piece of legislation stipulates that or if there is a collective agreement that
authorizes that ;a term in the contract of employment allows that.3 It is an
improper exercise of power by the employer to suspend an employee
without pay, because the employee remains in the employment during
suspension and he, therefore, has to receive some means of livelihood from
the employer during period of suspension but he cannot find another job
elsewhere otherwise it would then be breach of contract.
In Setlabosha v okavango wilderness safaris4 The court had to deal with 2
issues which were linked to each other that is whether or not the suspension
without pay was valid and consequently whether the dismissal following
refusal to go on transfer was valid .The Court held that the demotion just
like suspension as a punitive sanction , coupled with no pay, requires the
consent of the employee .The court laid out a principle that if demotion
coupled with reduction in salary or no pay OR suspension without pay is
effected without the consent of the employee, it will constitute a unilateral
variation of the contract of employment that is the employees’ right to be
paid his agreed wages or salary.
In application to our present scenario, Kagiso was suspended for 3 months,
2 of which were unpaid following decision of the Disciplinary Committee. In
the absence of any provision in the Jalapeno’s disciplinary code and/or in the
absence of any legislation in Botswana to that effect and there being no
express provision to the same , consent was needed for such variation.
There being no lack of consent to such variation and it not being a
commercial reason, it was wrongful and consequently invalid for Kagiso to
3
4
Gaborone Consumers Cooperative Society v Gaolekwe 1997 BLR 1372 (HC)
2007 (1) BLR 743 (IC)
be suspended with no pay.In conclusion of this issue, Kagiso can make
representations to the CEO as to why he should not be suspended without
any salary since the sanction has not been carried out just yet .Failure to
give him opportunity to make such representations will render the
suspension null and void.
When an employee goes through a disciplinary process the overarching
principle is that the disciplinary process should be substantially and
procedurally fair. There must be a justifiable reason for the process to have
came about. The poses has to encompass the elements of natural Justice
which include the rule against bias as well as the right to a fair hearing (Audi
alteram
partem).
The
requirements
of
a
fair
disciplinary
process
encompasses eight points. Firstly , that an employee facing discipline must
be given notice of the time and the place where an employer intends to
holds a disciplinary enquiry , an employee must be informed of the nature of
charges and the charges against him, an employee must be given an option
of assistance by being represented at enquiry by a co-employee of his
choice. Fourthly, An employer should place sufficient evidence before the
enquiry to whom the alleged misconduct is being committed by the
employee so charged. The fifth is that An employee must be entitled to give
evidence themselves. Following that, the employees must also be entitled to
call their own witnesses and cross-examine such witnesses .The 6th is that
in the event of being found guilty of misconduct and employee must be
given further opportunity to put forward facts in mitigation before any
selection is decided on. The 7th requirement is that if an employee is found
guilty and after the sanction has been imposed the employee must be
informed of his right to appeal against such a sanction or finding. Lastly any
enquiry must be conducted in good faith.
ISSUE NO 5
An employee is entitled to being given timeous notice of the hearing. The
period must be long enough to enable the employee to prepare for the
hearing; for example, to consult witnesses.The charges were read to
Tshepho and Kagiso, thereby giving them notice to the disciplinary hearing
which is one of the requirements for a fair disciplinary hearing. It was
therefore rather unfair to a certain extent that Kagiso and Tshepo were
informed of their charges on the same day of their hearing.An employee has
the right to call upon own witnesses and provide evidence themselves and
this right was clearly infringed upon by John as the Manager In that he
refused to accede to the request. John in response, stated that the matter
had dragged on for too long and that it had to conclude. Moreover, he would
allow them to provide written statements, and for any of their witnesses to
provide witness statements. In addition, John averred that whilst they would
not have an opportunity to cross examine witnesses, they would be deposing
to affidavits that would be served upon Kagiso and Tshepo. This showed a
violation of both the right to cross examine witnesses and provide evidence
themselves as employees in defense.
Another violation of the disciplinary process is that upon Kagiso and Tshepo
being found guilty they were not given any further opportunity to put
forward facts in mitigation before any sanction was imposed. Another
element to be considered in the disciplinary process is that the employer
ought to place sufficient evidence before the enquiry to the employee
alleged to have done a misconduct. In application to our present scenario,
Kagiso and Tshepho were charged with dishonesty and theft .There is clearly
stock that is unaccounted for but did Tshepho and Kagiso ‘steal’ the
produce? As regards Tshepho, he was tasked with storage of produce and it
could be that what the security guards saw was part of his job. Furthermore,
he should have been given the opportunity to question the witnesses who
gave evidence against him and also lead evidence which could have proved
his innocence. It is clear from the scenario that it was not clear whether
Kagiso left with any package from the premises of the store. To rely on an
inaccurate CCCTV footage would rather pose prejudice as it was not clear
and proved on whether they had truly stole the items.
ISSUE NO 6
In the case of CWIU and Another v Hoechst5 it was held that the employee
could not demand that the disciplinary proceedings be suspended until
finalization of a criminal trial. This is premised on the fact that they are
separate proceedings and the onus is different. . At a criminal hearing the
prosecution must prove the guilt of the accused beyond a reasonable doubt,
whereas at a disciplinary enquiry the employer need only be satisfied on the
balance of probabilities that the employee had committed the disciplinary
offence. However they may circumstances which render it impossible to
conduct the 2 at the same time for instance when the employees are in
police custody. In the case of UPMW and Another v Stadsraad van Pretoria
(1992) 13 ILJ 1563 (IC)
the court held that an employer cannot justify a
delay on the basis that a criminal trial which arises from the alleged
misconduct first has to be concluded. In application to our scenario, the
suggestion
made
by
Tshepho
and
Kagiso
to
conclude
the
criminal
proceedings first was ‘utter nonsense’ as critiqued by the Courts. However it
was apparent that on that specific day set out for hearing, they also had a
bail hearing and could not have availed themselves for the disciplinary
hearing. They were also given a notice of less than 24 hours which was not
adequate and it caused the overlapping of the proceedings. Had the
employees informed them on time , they should have then set out a day not
clashing with the criminal proceedings and since it is not a big Court but just
a disciplinary body, it should be easy for it to change clashing dates.
5
(1993) 14 ILJ 1449 (LAC).'
BIBLIOGRAPHY
CWIU and Another v Hoechst (Pty) Ltd (1993) 14 ILJ 471 (IC)
Gaborone Consumers Cooperative Society V Gaolekwe 1997 BLR 1372 (HC)
Hoechst (Pty) Ltd v CWIU and Another (1993) 14 ILJ 1449 (LAC).'
Mbaakanyi v. Botswana meat commission 1999 (1) BLR 286 (IC)
Setlabosha v Okavango Wilderness Safaris 2007 (1) BLR 743 (IC)
UPMW and Another v Stadsraad van Pretoria (1992) 13 ILJ 1563 (IC)