IN_THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT GABORONE COURT OF APPEAL CIVIL APPEAL NO. CACGB-102-i8 INDUSTRIAL COURT CASE NO. ICF-87-17 In the matter between: KHOEMACAU COPPER MINING (PTY) LTD APPELLANT and STEWART WALLACE RESPONDENT Attorney Mr J.B. Akoonyatse for the Appellant Attorney Mr M.T.T, Gobhoza (with Attorney Mr W. Tafa) for the Respondent JUDGMENT CORAM: KIRBY J.P. LESETEDIJ.A, GAONGALELWE J.A. LORD HAMILTON J.A, HARMS J.A. KIRBY J.P, 1. This is an appeal against a judgment of the Industrial Court (per Baruti J) in which the termination of contract, or dismissal, by KHOEMACAU COPPER MINING (PTY) LTD (the appellant) of its maintenance manager, Mr Stewart Wallace (the respondent), was held to be both substantively and procedurally wrongful or unfair, and the appellant was orderedto pay to the respondent the sum of P417,150, namely three months’ salary, as compensation for that dismissal. Since the judgment raised constitutional issues, and also called into question certain aspects of the decision in PHUTHEGO & OTHERS vs BARCLAYS BANK OF BOTSWANA LTD (2016) 1 BLR 562 CA (full bench), delivered on 28" July 2016, a five Judge bench was assembled to hear the appeal, and counsel were requested to address the court on three questions which arose consequent thereon. These were: (a) (b) (©) whether different rules are to be applied where unlawful termination of service is dealt with by the High Court, as opposed to where this is dealt with by the Industrial Court; whether the Court of Appeal is permitted to apply equitable principles in determining an appeal from the Industrial Court, but has no such power in an appeal from the High Court on such matters; and whether litigants should continue to have the right to challenge unlawful dismissals in contractual actions or by way of review in the High Court, rather than by approaching the Industrial Court, as a specialized court created to deal with such cases.Another appeal in which similar points were raised, namely YOUR FRIEND (PTY) LTD t/a GABZ FM vs REGINALD RICHARDSON CACGB-204-17, was listed for the same day, and those three questions were put to counsel in that case as well. It has become apparent after reading the heads of argument filed, after hearing the submissions of counsel, and after interrogating the legislation, namely the EMPLOYMENT ACT Cap 47:01 and the TRADE DISPUTES ACT Cap 48:02 (“the TDA”), that there are presently material differences in the law to be applied by the trial court chosen by the dismissed employee and subsequently by this court on appeal, depending upon whether the Industrial Court or the High Court is the forum of. choice. Both the cases which came before us on this occasion were appeals from the Industrial Court, and fell to be decided, each on its own facts and contract, by that court in terms of the TDA. PHUTHEGO’s case, on the other hand was an appeal ‘on referral on a question of law from the High Court in a caseserving before that court, which was decided on common-law principles as reflected in the Employment Act. It was agreed by all counsel (and we concur) that the approach of this court in dealing with appeals on the same subject matter from each of the two courts is at present materially different. I will deal with these differences and their effect later in detail. For the present, suffice it to say that Howie JA, in his judgment in PHUTHEGO (which dealt principally with the measure of damages in an unlawful dismissal case brought in the High Court) was alive to them, and remarked at p.567 F, when referring to a cited High Court case that: “... the court may have had in mind the provision in 8.24(4)(d) of the Trade Disputes Act (Cap 48:02) which empowers the Industrial Court, when assessing compensation, to take into account, inter alia, “the circumstances of the dismissal”. However, NIEHAUS, supra was not a case in the Industrial Court’s equity jurisdiction, but in the High Court's common law jurisdiction.” (The section 24(4)(d) referred to in that case was the predecessor to the present s.27(4), which has similar provisions).5. I will make reference to PHUTHEGO’s case, where apposite, but, this being an appeal from the Industrial Court, and not from the High Court, the core findings in PHUTHEGO are not in issue, and full argument on these will need to be made, if queries are again raised, in an appropriate appeal from the High Court. BACKGROUND The facts of this case are all common cause. The respondent was employed by the appellant on a contract of indefinite duration on 1% July 2015 at a salary of P135,000 per month. By the time of his departure, this stood at P139,050 per month. Clause 22 of the contract provided, in its relevant portion, that: “Your employment may be terminated for a fair reason and in accordance with a fair procedure. A one (1) month’s written notice (submitted on the 1* day of the month) will be required to terminate your employment with the Company.”~ In early November 2016 the respondent was the subject of a disciplinary hearing, it being alleged that he used company money to bring a girlfriend to visit him at the mine, as a purported member (insisted upon by him) of an internal audit team from Gaborone. He was found guilty, and on 7™ November 2016 he was informed in writing of the sanction therefor, which was a final written warning plus an order to reimburse the company with a sum of P5000. There is no quarrel with that. Two days later, he was served with a notice of termination of employment which contained the following statements, which are material to this appeal — “The decision to terminate your employment is taken against the provisions of section 18(1)(b) of the Employment Act (Cap 47:01) ... ... Please note that there is no requirement under the Employment Act for the Company to provide reasons for the termination of your employment, and none are given herein. Your notice period is one (1) month but the Company does not require you to serve the notice period at work. You will therefore be paid a month’s salary in lieu of notice.”10. The respondent raised a complaint with the Labour Officer who, after compulsory mediation in terms of the TDA, declared that there were no prospects for settlement. There is a dispute over whether there was an agreement thereafter to refer the matter to arbitration, but nothing turns on that, since it is common cause that the appellant refused to participate in any arbitration. The respondent launched the present proceedings in the Industrial Court after obtaining condonation for his late submission of his statement of case. His complaint was that the appellant had no fair reason to terminate his employment in terms of the above letter nor was there adherence to the rules of natural justice as regards a fair procedure. The termination was thus both substantively unfair and unlawful and procedurally irregular and unfair. He claimed a total of P1,668,600 as compensation for unlawful termination plus other monetary relief.12. 13. The appellant responded in its statement of defence to aver that the termination had nothing to do with the earlier disciplinary case and had been carried out lawfully in accordance with the Employment Act. The compensation claim was accordingly disputed. Viva voce evidence was led in the Industrial Court. Those who testified were the respondent and the appellant's Operations Manager. The Operations Manager declined to give reasons, when asked why the respondent was dismissed, because in terms of a legal opinion obtained by his superiors at Head Office, there was no legal obligation to do so. He informed the court that the company was not generating income, since it was still at its investigative phase, and that several months after the departure of the respondent it had retrenched some of its employees. The appellant centred its argument, as it does in this appeal, on the proposition that in terms of section 14(1) of the TDA the14. Industrial Court is both a court of law and a court of equity. Although it may apply equitable principles, it may only do so within the boundaries imposed by the statute law — in this case, the Employment Act. Under section 18(1)(b), it argues, the Court of Appeal has held in PHUTHEGO’s case, that no reasons need be given for a contractual termination on notice, and no opportunity need be given to the employee to make representations against termination and that in a case such as this the amount of damages is limited to the notice period. The Industrial Court, it says, is bound by that decision. The respondent argues to the contrary. In his judgment BARUTI J. dealt at length with constitutional issues and concluded that the Botswana Constitution should be read as conferring, by implication, human rights of a socio- economic nature, including the right to fair labour practices, as well as those fundamental rights specifically dealt with in Chapter 2 of the Constitution. That proposition had not been argued before him by Counsel. He nonetheless concluded that15. 16. 10 the dismissal (as he termed it) of the respondent was unlawful, as it contravened section 7 of the Constitution which prohibits subjection of the subject to degrading treatment. He held further that the Industrial Court, in the exercise of its equitable jurisdiction, was entitled to fill “lacunae” in the provisions of the Employment Act where fairness demanded that. This meant that section 18(1)(b) of that Act should be read to require that termination by notice could only be given for a fair reason, and could only be effected by a fair process. This was confirmed and authorized by the Minister’s Code of Good Practice, which had been published in terms of section 53 of the TDA. In reaching this conclusion, he found that the PHUTHEGO’s case had been overruled by subsequent judgments of this court. The learned Judge accordingly ruled that: “(a)_ the dismissal of (the respondent) was substantively and procedurally wrongful or unfair;il (b) (the appellant) shall pay to (the respondent) a total amount of P417,150 being three (3) months of his salary as compensation for a substantively and procedurally wrongful or unfair dismissal; and (c) (appellant) shall pay (respondent) the amount of P417,150.00 referred to at paragraph (b) above through the Industrial Court here in Francistown within 30 days from today.” 17, The appellant based its appeal, in essence, on four grounds, namely — (1) that the court a quo erred in finding that the right to fair labour practices is a constitutional right, so that “section 18(1)(b) is not at all applicable”. This was more so because that point was not raised in the application before him, nor was it suggested that the respondent had been subjected to inhuman or degrading treatment contrary to section 7 of the Constitution; (2) _ that the court @ quo erred in holding that section 18(1)(b) of the Employment Act must be read to include the requirement for a fair reason or just cause for termination of employment by the employer; (3) that the court @ quo erred in holding that PHUTHEGO’s case had been overruled by subsequent decisions of the Court of Appeal, when those decisions dealt with disciplinary dismissals rather than with contractual termination on notice; and18. 19. 12 (4) that the court @ quo erred in ordering excessive compensation of P417,150. It prayed that the appeal be upheld with costs. THE LAW It Is settled that the High Court and the Industrial Court enjoy concurrent jurisdiction to hear cases of wrongful dismissal, and that it is for the complainant to choose the forum. See BOTSWANA RAILWAYS ORGANIZATION v SETSOGO (1996) BLR 763 CA. However, the two courts have different characteristics and different powers, which will no doubt influence litigants (and their legal advisors) in making their choice of forum. I will briefly summarize the most important of those differences, because they are pertinent to this case. (a) While the High Court is a common law court of record established by the Constitution, and has (by section 95(1) of the Constitution) “unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law”, the Industrial Court is a “court of law and equity” established by s.15(1) of the TDA, and has limited jurisdiction to(b) () (e) ( 13 settle trade disputes and to secure and maintain good industrial relations in Botswana. The High Court applies the common law and the Employment Act, while the Industrial Court applies the TDA on equitable principles, after compulsory efforts at mediation, although in doing so it may not depart from the requirements of the Employment Act, or of other relevant statutes. The High Court is subject to its inherent jurisdiction to regulate its procedure, governed by detailed Rules of Court and rules of evidence and procedure, while the Industrial Court (by section 20(7) of the TDA) may regulate its own procedure and proceedings, and (by s.22(1)) is not bound by the tules of evidence. Litigants may only appear in person or represented by counsel in the High Court, whereas in the Industrial Court, they may be represented by other persons as well (s.24 of the TDA). There are court fees to be paid in the High Court and legal costs are payable, whereas in the Industrial Court there are no charges, and costs may not be ordered save in frivolous or vexatious proceedings (s.32(1) of TDA). An employee who claims wrongful dismissal must. make his complaint under the TDA to the Labour Department within 30 days (although condonation for late referral may be obtained), whereas a litigant suing for unlawful dismissal in the High Court is bound only by the law relating to prescription of claims or, where applicable, by the four month general limit on the time for bringing judicial review proceedings.20, 21. 4 (g) While the High Court may only award damages according to the common law and in accordance with the Employment Act for wrongful dismissal, the Industrial Court is empowered by section 27(4) of the TDA to award equitable compensation on various grounds. (h) Importantly, the Industrial Court is empowered, and indeed obliged, by section 53(2) of the TDA to take into account any policy guidelines or Code of Good Practice published by the Minister under section 53(1), in making its decision. The Minister has done so, and I will deal with these presently. The High Court has no such obligation and confines itself to applying the common law and the statutes enacted by Parliament. So, generally, the Industrial Court has been established as a specialist court to deal with labour matters - as a cheap and easily accessible forum to settle employment grievances swiftly and with a minimum of formality, eschewing technical rules, where lay persons can represent themselves, or be represented, where applicable, by their unions. There are also significant differences between the Employment Act and the TDA, although both Acts are intended to promote good labour relations, and to compensate for the power22. 23. 15 imbalance that existed historically between employers and their employees. One of these is that (by s.2) the Employment Act is not to apply to public officers or to members of the disciplined forces. The TDA, however, in its definition section (also s.2) includes public officers (but not members of the disciplined forces) in its definitions of “employer” and “employee”. Thus in unlawful dismissal cases before it involving public officers, the High Court is to apply the Public Service Act (the PSA), while in such cases the Industrial Court is to apply both the PSA and the TDA, save where the PSA indicates otherwise. Another difference is that there is no obligation under the Employment Act for an employer to show just cause, or to give reasons, or to hear an employee, before terminating his or her employment by giving notice (as opposed to summary dismissal for disciplinary reasons), In the Industrial Court, on the other hand, those pre-requisites are required in order for any termination to be substantively and procedurally fair, and so24, 16 lawful. Those requirements have been introduced through the Minister's Code of Good Practice, about which, more later. Both counsel are agreed, and we agree too, that this court, in hearing an appeal from the High Court relating to unlawful dismissal, will apply the law and principles applicable in that court, namely the common law and the rules laid down by statute. It has no equitable jurisdiction in those cases, so it will apply the Employment Act, together with the common law, to the extent that this is not altered or embodied in that Act, or the Public Service Act, where that is applicable. Where an appeal is brought from the Industrial Court, however, the Court of Appeal is to apply the law governing that court, namely the TDA, together with the relevant Act. So, in an appeal from the Industrial Court this court is empowered and obliged to apply equitable principles, whereas in an appeal from the High Court, it is not. The same principle would apply, as counsel pointed out, in an appeal originating from the Customary Court, where the25, W relevant customary law would be applied, as was the case in RAMANTELE vs MMUSI & OTHERS (2013) 2 BLR 658 CA. It is, I believe trite, that in determining an appeal, this court, or any appellate court, is to apply the law which was applicable in the court of first instance, The unfortunate result of this is that where Parliament has chosen to create a specialist court of law and equity, in this case the Industrial Court, which has concurrent jurisdiction with a court of law (here the High Court) an appeal deriving from the same facts may conceivably lead to a different result depending upon the forum chosen by the litigant. So, a termination of employment effected in terms of the Employment Act without applying the rules of natural justice may be found to be lawful by the High court, applying the common law, but could be found to be unlawful applying the Minister's Code of Good Practice in proceedings brought in the Industrial Court. And certainly the compensation ordered by the Industrial Court, applying the equitable principles18 authorized by section 27(4) of the TDA, may differ substantially from the common-law damages awarded by the High Court in terms of PHUTHEGO's case, following the common-law principles incorporated in the Employment Act. This may create difficulties for the employer because upon termination of his employment, it is the employee who is to choose the forum in which to pursue his complaint. Both counsel have pointed to the undesirability of this situation, which is inconsistent, as far as the employer is concerned, with Lord Diplock’s remarks on predictability in BLACK-CLAWSON INTERNATIONAL LTD vs PAPIERWERKE WALDHOF-AGCHAFFENBERG AG (1975) 1 All ER 810 HL at 836 that: “The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it. Where those consequences are regulated by a statute the source of that knowledge is what the statute says. In construing it, the court must give effect to what. the words of the statute would be reasonably understood to mean by those whose conduct it regulates.” 26. That was the approach taken by the court in PHUTHEGO's case. It noted that neither section 17(2) of the Employment Act19 (which provides that a contract for an unspecified time shall run until it is lawfully terminated), nor section 18(1), which provides that such a contract may be terminated by giving the appropriate notice under section 18(2), imposes any obligation relating to just cause or the giving of reasons. That being the case, the common law, which requires neither, was to be applied. This was in accordance with the old rule, re-stated in MEDICAL RESCUE INTERNATIONAL BOTSWANA LTD vs ATTORNEY-GENERAL & OTHERS (2006) 1 BLR 516 (CA), that a statute is not to be construed as disturbing the common law unless this is stated to be so, or is deemed so by necessary implication. The court was called upon in PHUTHEGO to determine the proper method of computing the measure of damages to be awarded by the High Court for unlawful termination of a contract of employment. It was not called upon to answer a similar question in relation to compensation for dismissals (as contractual terminations are styled in labour law) in the Industrial Court. That is why no analysis of the TDA was undertaken, and only a brief acknowledgement was made27. 20 that compensation for additional reasons could be granted by that court. That is also why, in my view, there was no reference to the various sections of the Employment Act rendering terminations for specified reasons or in specified circumstances unlawful. These are to be found in, for example, section 23 (union membership, discrimination et al), section 25 (redundancy), and section 116 (maternity leave). Had those questions arisen, then no doubt attention would have been given to section 23(e), in particular, which appears to outlaw a wide range of reasons for termination of employment, and to section 115(1) which by implication seems to acknowledge that termination without just cause remains acceptable. Those, however, are not questions for this court to resolve in this case. They must. await an appropriate appeal from the High Court. Suffice it to say that while the termination by notice sections of the Employment Act do not require just cause to be shown or reasons to be given, they do not preclude an employer from28. 2 showing and giving these if he or she so decides. Nor is there any obstacle to an employee challenging the termination of his employment on one of those grounds of unlawfulness. Both counsel have requested this court to harmonize the application of the two Acts. Mr Gobhoza, for the respondent asks that this be done by reading in a requirement that there must be just cause, with reasons given for a termination with notice, regardless of the contents of the parties’ contract, to accord with the requirements of the TDA and international norms, and so to depart from a particular finding in PHUTHEGO's case (at page 569). Mr Akoonyatse, for the appellant, urges that this court should hold the Industrial Court bound by the jpsissima verba of the sections, which do not require either just cause or reasons. This is not, as I have said, an appropriate case in which to attempt such a harmonization. It is for us to examine the lawfulness of the termination of the respondent's contract of employment through the prism of the29. TDA in all its terms, while ensuring that in doing so, there is no departure from the Employment Act. It is, of course, open to the Legislature to itself attend to the harmonization of the two Acts in its ongoing exercise to review the Employment Act and the TDA, as announced by the Minister in the media. For now, rules to be applied by the Industrial Court in terms of the TDA remain those comprehensively dealt with by the late De Villiers J, in PHIRINYANE vs SPIE BATIGNOLLE (1995) BLR 1 (IC). The High Court, in dealing with labour cases is to follow PHUTHEGO’s case on the question of contractual damages, which was the core issue there dealt with. The obiter remarks on the nature of the unlawfulness giving rise to such damages ought not constitute a binding precedent. That applies in particular to the statement that the case of MOTSUMI v FIRST NATIONAL BANK OF BOTSWANA LTD (1995) BLR 713 (IC), (a case from the Industrial Court) had been wrongly decided.30. 31. 23 I will proceed to deal with the real issue in this appeal, namely whether the termination of Mr Wallace’s contract was lawful, having regard to the terms of his contract, section 18(b) of the Employment Act and the provisions of the TDA which were to be applied by the Industrial Court. I will set out those provisions in detail, but before doing so, it is as well to say a word about the cases from this court which it is suggested depart from or “overrule” (to use the words of Baruti J.) the decision in PHUTHEGO’s case, and also to set out the context of Botswana today in which the TDA provisions are to be construed. Baruti J. referred to two recent cases decided by this court as “over-ruling” PHUTHEGO’s case. They are ATTORNEY- GENERAL vs SEBOTA CACGB-215-16 (unreported), and LIMKOKWING UNIVERSITY vs MAFA CACGB-125-17 (unreported). Neither of these cases, being three Judge decisions, could, on the stare decisis principle overrule PHUTEGO's case, which was a decision of the full bench of five32. 24 Judges. I also agree with counsel for the appellant that neither case did or purported to do anything of the sort. The SEBOTA case dealt with the dismissal of a public officer and was based on the provisions of the PSA, not of the Employment Act. MAFA's case concerned a disciplinary dismissal for absences from work, and not a simple termination by notice. It, too, did not touch on PHUTHEGO's case. I have also considered the statement of Tebbutt J. in MOSEDAME vs INSTITUTE OF DEVELOPMENT MANAGEMENT (1998) BLR 72 CA at p.75 that: “The scheme of the Act is, however, that generally termination of a contract requires just cause and the reasons for doing so.” This remark was made in a brief judgment dealing specifically with termination during a probationary period in terms of section 20(7) of the Act, and was in the circumstances, obiter in nature. It may be that a future court might agree that it is necessary to have a just cause and reasons for termination, but not necessarily to convey these to the employee unless and33. 25 until there is a challenge to the termination. This may well be so because under the common-law the onus is on the employee to allege and show that his dismissal was unlawful (save where the facts are within the peculiar knowledge of the employer) whereas in terms of the Minister's Code of Good Practice, the onus is on the employer to show just cause and procedural fairness. However, that is not a matter for decision in this appeal. BOTSWANA IN CONTEXT & THE CANONS OF CONSTRUCTION It is now well-settled that in construing a section of a statute, the court will have regard to all the provisions thereof and the language used. It will also seek to ascertain the intention of the Legislature in enacting it, and to keep that intention alive in the context of current circumstances, including the social, economic, and political landscape of modern Botswana. See in this regard PONY HOPKINS vs ESTATE LATE NKOPO PHIRI & OTHERS CACGB-087-17 (unreported) at para 5234, 35. 36. 26 et seq. and ONKEMETSE TSHOSA vs ATTORNEY-GENERAL CACGB-158-16 (also unreported). This principle derives from section 28 of the Interpretation Act Cap 01:04, which provides that: “An enactment shall be construed as always speaking and if anything is expressed in the present tense it shall be applied to circumstances as they occur, so that effect may be given to the enactment according to its true intent and spirit.” In construing statutes the court may also, in terms of section 24 of that Act have regard, inter alia, to the memorandum tabled with the Bill upon which the Act in question is based, and relevant international treaties to which Botswana has acceded. It is a matter of public record that through good government and the careful husbanding of its diamond resource Botswana has developed from a most undeveloped status to a middle income economy, with an impressive infrastructure, a sound legal framework and a democratic Government. The country37. a aspires to move beyond middle income status by embracing technology, advanced education, and the attraction of foreign direct investment, both by the importation and development of skills, and in the form of capital and job-creating businesses. To achieve these goals it is vital that, within the limits of available resources, our labour laws and working environment. are such as to accord with international best practice, and to ensure that all workers, and all employers, both international and local, feel comfortable that they are adequately protected. To that end labour legislation has been progressively developed, and Botswana is a signatory to a number of relevant International Conventions of the ILO. Others have neither been ratified nor introduced into domestic legislation, as a deliberate decision of the Botswana Government. It remains our law that international treaties are not binding or enforceable until they have been introduced into domestic legislation. See, for example GOOD vs ATTORNEY-GENERAL (2) (2005) 2 BLR 337 CA (full bench) at p.346.38. 39. 28 As was held by Amissah JP in SETSOGO's case (supra), the Employment Act, in its original form, was promulgated for the protection of workers, in recognition of their disadvantaged position when negotiating conditions of employment with their far more powerful employers. It consisted in a large part of the reduction into law of existing common-law principles, many of which remain in force to this day. In recent years the Act has been amended and augmented, and further Acts have been promulgated to fulfill Botswana’s international obligations. These include the Trade Unions and Employers’ Organization Act Cap 48:01, the TDA and the PSA. The Employment Act, too, was amended by the Employment Amendment Act No.10 of 2010 which introduced, among other sections, section 23(e), which made it unlawful to terminate the employment of an employee for “(e) any other reason which does not affect the employee's ability to perform that employee's duties under the contract of employment.” It did not, however, amend the sections dealing with the right of either party to terminate a contract of employment by the40. 29 giving of notice, and which made no mention of the necessity for just cause or for the giving of reasons. This is notwithstanding the explanation given in the Memorandum to the Bill that: “The object of the Bill is to provide for an amendment of the Employment Act Cap 27:01, in order to comply with the International Labour Organization (ILO) Conventions to which Botswana is a party.” One of the Conventions which Botswana has not ratified is the Termination of Employment Convention No. 158 of 1982. That notwithstanding, many of its provisions have been incorporated indirectly into the TDA (but not into the Employment Act) by means of the National Industrial Relations Code of Good Practice issued by the Minister and published as Government Notice No. 483 of 2008. This has as one of its schedules The Code of Good Practice (Termination of Employment). It is issued on the authority of section 53(1) of the TDA. Section 53(2) provides that in making any decision the Industrial Court shall take that Code into consideration. So Parliament has assigned to the Minister the power to develop such a Code, and30 has commanded the Industrial Court (but not the High Court or any other court) to take it into account in making its decisions ‘on labour disputes. 41. The Code is instructive both for the protection which it offers to employees and for that which it offers to employers. These are some of its relevant terms: - In Clause 1 it provides, inter alia, that “The Code is intentionally general because every situation is unique and departures from the standards in this Code may be justified in appropriate circumstances.” (Reasons must, however, be given for this and in the event of. the Code conflicting with a statutory provision, the statute must prevail). - In 1.8 it recognizes the right of management to use its resources efficiently in order to achieve profitability, and also the desire of employees for security of employment and job satisfaction. - Clause 14 states that “Termination of employment is one of the primary concerns of employees and no contract of employment may be terminated:42. (i) arbitrarily; (i) without due process; and (iii) without just cause.” In the portion of the Code specifically addressing termination of employment, the following provisions are of relevance: - in clause 1.3 it is confirmed that “the guidelines in this Code may be departed from if there is a good reason to do so”. Examples given are justification based on the size of the employer and on the nature of the employer's business. - by clause 2.1.2 “an agreement for an unspecified period of time (normally until retirement) ... continues until it is lawfully terminated. This means that it must be terminated for just cause and on proper notice by either of the parties or for other reasons e.g. by agreement, death of the employee etc.” This clause mirrors sections 17(2) and 18 of the Employment Act, and is a clear direction as to how they are to be construed by the Industrial Court. - This is repeated in clause 3, which distinguishes between “dismissals” (i.e. termination by the employer), and “resignations” (i.e. termination by the employee). Clause 3.6.2 provides that “In a contract for an unspecified period, a dismissal is not wrongful if it is effected for a fair reason and in accordance with a fair procedure, in addition to complying with any notice43. 32 period required in a contract of employment or by legislation.” - and in Clause 3.6.5, it is said that “The onus of proving the fairness of a dismissal lies with the employer.” The Industrial Court has, in a number of. judgments, including SPIE BATIGNOLLES (supra) (and correctly, in my view), applied these principles in interpreting s.27(1) of the TDA, which makes reference to “wrongful dismissal”, and it is from these (and indirectly from ILO Convention 158/1982) that the Industrial Court derives its now universally used test that to be lawful (and not “wrongful’) a termination (or dismissal) must be substantively fair and also procedurally fair. There can be no quarrel with that but, for the present, the High Court remains guided only by the Employment Act, which retains on the authority of PHUTHEGO’s case, many of the common-law rules. It is opportune at this stage to deal with the discretionary aspects of the Industrial Court test. These relate to the nature of “just cause”, and the compass of the fairness required in the application of the rules of natural justice. As the Code of45. 33 conduct says, these are matters which both depend upon the particular circumstances of each case. What is a “fair procedure” is set out in all its permissible elements in Clause 11, dealing with dismissals for misconduct. There are ten of these, covering investigation, preparation, timing, particulars, representation and others. But the Clause also provides that the procedure may be varied in appropriate circumstances and that (by 11.11) “In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedure”, Certainly, in terminations by notice, which are usually made in writing, most of those disciplinary procedures would not be required, although just cause and a fair procedure are always necessary. In the context of Botswana it is important that the Industrial Court's decisions be regarded as fair and proper by both investors and employers, and by their employees at all levels, This is essential if ease of doing business in a sensible and34 productive way, as well as competitive mobility of labour, is to be encouraged. So, depending on the circumstances, “just cause” is to be given a very wide range of meanings. This should reflect, for example, the relative bargaining strength of the two parties. So, a senior executive, a senior manager, or a highly qualified professional may be shown to have virtually equal bargaining power as has the employer. In such a case the giving of due notice under a contract might itself be held to constitute just cause, reflecting, as it does, the employer's view that termination is necessary to maximize the operational efficiency of his concern. (I say this in the context of Clause 3.6.3 of the Code) which provides that: “There are normally only 3 recognised grounds of dismissal for a fair reason, namely (a) misconduct; (b) incapacity, including poor work performance, or ill-health or injury; and (c) operational requirements.” It may be that section 23(e) of the Employment Act was intended as a shorthand form of these requirements. The Legislature may wish to consider whether it properly achieves that purpose.46. 47. 35 On the other hand, a full explanation and more cogent grounds would be required in other cases, particularly where there is union representation of the employee, or where the employee, being unrepresented, may not fully understand the purpose or necessity of the termination of his or her employment, As to the nature of a fair procedure, this too will vary widely depending upon the circumstances of each particular case, As has been held by this court in numerous cases (e.g. MOTHUSI vs ATTORNEY-GENERAL (1994) BLR 246 CA), the essence of the rules of natural justice is the duty to act fairly, usually, but not always by the application of the aud/ alteram rule and by the giving of reasons. So too, in the case of the senior categories of employee aforementioned, the proper giving of agreed contractual notice might also in its own circumstances be a fair procedure, whereas in many other cases it would not be. There is a wide spectrum of possible circumstances, each of which would require due consideration. Again, in a proper case a union representative might justifiably insist on full48. 49. 36 compliance with the guidelines for the member, especially in cases involving misconduct. In other cases where, for example, the employee is illiterate, or the employer is a family concern or a small firm, the full procedure might not be appropriate. The relative bargaining power and degree of understanding of the parties will always be relevant considerations. So, in summary, the Industrial Court should never, in my view, follow the base requirements of the Code slavishly, but should, as the Code itself permits, act fairly and sensibly in each case, bearing in mind the relative strengths and weaknesses of the parties, and the national imperative of good industrial relations, and promotion of the ease of doing business in Botswana. It is opportune at this point to deal with the submission of Mr Akoonyatse, that the inclusion of the words “notwithstanding anything to the contrary contained in the contract of employment” in section 18(1)(b) of the Employment Act serve to nullify the term of the parties agreement in this case37 requiring fair reasons and a fair procedure to be given and employed when terminating on notice. It will be recalled that section 18(1) provides that: “A contract of employment for an unspecified period of time ... may be terminated by either party — (a) ___ (daily rated employees) (b) where the wages are payable in respect of any period exceeding a day, at any time, notwithstanding anything to the contrary contained in the contract of employment, subject to notice having been given to the other party of the intention to do so.” 50. Ido not agree that this is so. The section does not require the giving of reasons showing just cause, but it also does not preclude this. Further, section 18(1) is not at all concerned with the giving of reasons. It is concerned with when, that is the time at which, the contract may be terminated. The phrase “at any time” in section 18(1)(b) is to be contrasted with “at the close of any day’s work” in section 18(1)(a). The phrase “notwithstanding anything to the contrary contained in the contract of employment” is concerned to override, and toSt. 38 override only, the time when contractual notice can be given. While section 37 of the Employment Act provides that: “Where a contract of employment, whether made before or after the commencement of this Act, provides for conditions of employment less favourable to the employee than the conditions of employment prescribed by this Act, the contract shall be null and void to the extent that it so provides,” there is no such prohibition on the inclusion in an employment contract of more favourable conditions. Indeed, in negotiating the conditions of service, an employee may bargain for a longer period of notice than that required by the Act, as also for an assurance that the employment will not be terminated save for fair reasons, and in accordance with a fair procedure, as in this case, There is nothing untoward about that. Section 18(3) of the Employment Act in fact specifically permits longer periods of notice in contracts of employment. To the extent that it is lawful, both the employer and the employee will be held to the terms of their agreement in accordance with the usual precepts of contract law, as52. 39 expressed by the maxims caveat subscriptor and pacta sunt servanda. See, for example RAKHUDU vs BOTSWANA BOOK CENTRE TRUST & OTHERS (2005) 2 BLR 283 CA; BRUCE BROTHERS vs FIRST NATIONAL BANK OF BOTSWANA LTD (1996) BLR 112 CA. Tam aware of the decision of the South African Supreme Court of Appeal in SOUTH AFRICAN MUNICIPAL WORKERS UNION & OTHERS vs MOKGATLA & OTHERS 2016 (5) SA 89 (SCA), (Case No 20810/2014), where it was held that in that country, where the High Court and the Labour Court also enjoy concurrent jurisdiction, that labour cases should generally be brought before the Labour Court, save in exceptional circumstances, where leave may be granted to proceed in the High Court. That is why I posed a question to counsel along similar lines. On reflection, there is no need in this case to consider that course of action. The present case was properly brought in the Industrial Court, and the South African Labour Relations Act contains provisions entirely different to our Trade53. 54. 40 Disputes Act and Employment Act. Further, the clear benefits of proceeding in the Industrial Court for redress of labour grievances has, I think been amply demonstrated in this judgment. As a forum of choice it is quicker, cheaper, and less technical than the High Court, and the TDA also provides significant advantages to employees which are not presently accorded by the Employment Act. COMPENSATION Another such advantage is in the relief which may be granted by the Industrial Court by way of compensation, Section 27(1) of the TDA provides that where it determines that an employee has been wrongfully dismissed, the Industrial Court may make any order which it considers just; including, in stated circumstances, re-instatement and/or compensation. Section 27(4) provides that: “In assessing the amount of compensation to be paid under subsection (1), the court may take the following factors into account —55. (6) (2 (d) (e) (f) (9) a 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 recommendation made by the court for the re-instatement of the employee; any contravention of the terms of any collective agreement or of any law relating to employment by the employer or the employee; and the employer's ability to pay.” It is immediately apparent that Parliament has empowered the Industrial Court, in the exercise of its equitable jurisdiction, to go beyond the common-law boundaries imposed on the High Court by section 22 of the Employment Act. Section 22 of that Act provides that: “Subject to any agreement to the contrary, the party in breach of a contract of employment whereby or as a direct result of which employment under the contract ceases shall be liable to pay to the other party a sum56. 42 equal to the amount he would have been liable to pay to the other party in order to terminate the contract in accordance with section 19(a) or (b), as is appropriate.” So a contract of employment may lawfully provide, in my view, for a predetermined and agreed sum of liquidated damages to be paid by a party who unlawfully terminates a contract of employment to the innocent party. In addition, such a contract may lawfully provide for a longer period of notice than the minimum provided in section 18(2) as read with section 18(3). Section 19, as referred to, provides for the payment of cash in lieu of notice. These provisions, as read against the background of the common law, have been held by this court (subject to contractual agreement to the contrary) to limit the damages payable for unlawful termination of a contract of this sort to the relative notice period. See PHUTHEGO's case (supra), at page 566, where the court endorsed the formulation in ZIMBANK BOTSWANA LTD vs MAKHURA (2002) 2 BLR 497 (CA) at p.499 G-H that: “The normal measure of damages [in the case of wrongful dismissal] is the amount the employee would have earned under the contract for the period until the57. 43 employer could lawfully have terminated it, less the amount he would reasonably be expected to earn in other employment”, (and see also page 568 G-H of PHUTHEGO where Howie JA held that earlier statements in other cases may have been caused “by confusion between the measure of common law damages and the measure of compensation under the Trade Disputes Act”). That notice period may be quite short, That compensation under the TDA can be far greater than damages awarded under the common law is made clear by the fact that the Industrial Court is not restricted by section 27(4) to awarding compensation only for “the actual and future loss likely to be suffered by the employee as a result of the wrongful dismissal” (27(4)(a)), but the sum awarded may also be enhanced by further sums arrived at in consideration of all or any of the factors listed in 27(4)(b) to (g) inclusive. There may, of course, also be negative features, relating to the conduct of the employee, which call for a lower amount of compensation.58. 44 Since the Industrial Court is bound also to comply with the Employment Act to the extent that this is consistent with the TDA, I take the sum to be awarded in terms of 27(4)(a), for actual or future loss, to be at a minimum the statute-law measure confirmed in PHUTHEGO to be payable in terms of the Employment Act. This may, in the exercise of the Industrial Court’s equitable jurisdiction, be enhanced if the circumstances warrant this. So a proper compensation award (which embraces within its wider compass, damages as well) will be of a sum equal to the relevant notice pay (normally one month’s pay), plus such further sums as the Industrial Court, in the exercise of its judicial discretion, decides to award having regard, in the circumstances of each case, to the relevant factors among section 27(4)(a) to (g) inclusive. It is to be noted that the prospective co-existence of the Employment Act, the TDA and the PSA was foreshadowed by section 8 of the Employment. Act, which provides that — “Nothing in this Act shall operate to relieve any employer of any duty or liability imposed on him by or under any other enactments for the time being in force or limit any59. 60. 45 powers conferred on any public officer by or under any such law.” This section confirms the lawfulness of the additional jurisdiction given to the Industrial Court in terms of both the TDA and the PSA over and above the provisions of the Employment Act which mirror, in many respects, the common law, As presently formulated, the TDA does not limit the sum of compensation which can be awarded by the Industrial Court following a wrongful dismissal. This was not the case up to 31° October 2011. Up to then, section 24 of the Act limited the amount of compensation which could be awarded by the Industrial Court to the equivalent of six months pay. That limit was removed when the TDA was repealed and replaced by Act 6/16, the present TDA. This was no doubt because, prior to that, the Industrial Court had no jurisdiction to award the often larger sums payable (in terms of PHUTHEGO’s case at p.566 F) for the wrongful termination of a fixed period contract with no61. 46 provision for termination by notice —- namely, the sum which would have been payable for the balance of the contract less what the employee could earn elsewhere during that period. This often compelled employees in that category to litigate in the High Court, where they would be deprived of the benefits of equitable compensation, but could recover their full common law damages. The result of that amendment is that it is now undoubtedly more advantageous to any aggrieved employee, of whatever rank, to litigate in the Industrial Court, with all its added favourable features, than in the High Court which now, paradoxically since it is a court of unlimited jurisdiction, has Power only to award modest damages to an aggrieved employee, as against the more generous compensation available in the Industrial Court. (That “unlimited jurisdiction” is stated in section 95(1) of the Constitution to be “under any law” and the High Court has no jurisdiction under the TDA. It is only the Industrial Court which is given jurisdiction under the62. 47 TDA). The only possible exception might be (and I express no opinion as to the propriety of this) when an aggrieved employee was too late to raise his grievance in the Industrial Court, but not to litigate in the High Court. He might then choose to do so, but this would usually only be worthwhile if his Employment Act damages were for the unexpired portion of a fixed term contract rather than being limited, in most other cases, to a month's salary or similar. That amendment was not, in my judgment, intended to create unlimited scope for extravagant awards of compensation, thus turning some dismissals into a bonanza for the employee and a financial disaster for the employer. It was intended that awards be limited to reasonable sums fairly arrived at after due consideration of the section 27(4) factors. While other countries (such as South Africa, by section 194 of its Labour Relations Act) still retain a cap on the compensation which may be awarded by a Labour Court, Botswana no longer does so.63, 64. 48 This has had the unintended consequence that awards of compensation now vary considerably from case to case, often for not fully stated reasons, so that employers can have no certainty of the financial consequences of an unlawful termination, (including a termination by notice if proceedings are brought in the Industrial Court) nor can an employee be confident of the recompense he or she can expect. That is not satisfactory. Awards granted have varied from as much as 24 months’ pay (see MAKWAEBA vs BOTSWANA STOCK EXCHANGE IC 976/15 (unreported)) to as little as 2 months pay (see MOKARA vs HORIZON OGILVY IC 468/17). Such uncertainty will have, in my judgment, a chilling effect on the willingness of foreign entrepreneurs to invest in Botswana and to set up business here. Counsel in the cases before us have all stressed the desirability of having guidelines laid out to show the normal range of sums in compensation to be awarded by the Industrial Court in cases49 of wrongful dismissal, depending upon the circumstances of each case. They have requested this court to provide such guidelines. This has proved a useful tool in the case of sentences in criminal cases. (See, for example, the Lord Coulsfield range of sentences laid down as being appropriate in so-called “passion killing” cases in NTESANG vs THE STATE (2007) 1 BLR 387 CA at p.391) and I see no reason in principle why that should not be done in regard to compensation for wrongful termination of employment as well. In my judgment a reasonable range of compensation to be considered by the Industrial Court in most cases of unlawful dismissal would be between 1 month’s pay and 6 months’ pay, depending upon the circumstances, subject to upward adjustment in exceptional cases. The time taken to find alternative employment, or the failure to do so should not generally, in my view, be an exceptional ground justifying a departure from that range. This is because compensation is to be decided at the time when the Industrial Court concludes the case. This should, in an expeditiously conducted case, be fairly65. 50 soon after the date of termination of employment, but the time of disposal may vary widely and for a wide range of reasons. That should not influence the quantum of compensation awarded, since the Industrial Court still retains the right to award an equitable sum for future loss. On the other hand, where damages are claimed for the unexpired portion of a fixed term contract with no provision for notice, a higher figure may be required, and this will qualify as an exceptional circumstance. It is also well-settled that the determination of compensation is normally a matter for the Industrial Court, and the Court of Appeal will slow to interfere with such an award, as in the case of an assessment of damages by the High Court, see BOTSWANA INSURANCE CO. LTD vs GOULDING (1987) BLR 529 CA. It will, however, do so if the sum awarded is markedly different to that which it would have awarded (per BIZOS JA at p.534 A). The Court of Appeal will also interfere with such an award when the Industrial Court has misdirected66. 67. SI itself, by failure to pay proper regard to the section 27(4) factors or otherwise. See BOTSWANA BUILDING SOCIETY vs BOLOKWE (1990) 1 BLR 459 CA at 469 and BOTSWANA POST vs NWAKO CACGB-103-17 (unreported). So this court will only substitute its own view as to what constitutes appropriate compensation for that of the Industrial Court in a wrongful dismissal case, where either the Industrial Court has been guilty of a misdirection in law in making its award, or where that award differs markedly from that which this court would have made. THE GROUNDS OF APPEAL Both counsel agreed that the constitutional grounds relied on by Baruti J did not arise in this case, or fall to be determined, because they were neither raised nor argued by either of the parties. (See: GAONGALELWE vs MOKGWATHI & ANOTHER CACGB-104-18 (unreported) per Walia JA at para68. 52 26; MOSHAPA vs KGOSI (2000) 2 BLR 90 (CA) at 95 D). It is further well established that, in any event, constitutional issues should not be relied upon where, as in this case, a matter can be decided on statutory or common law grounds. See RAMANTELE vs MMUSI & OTHERS (2013) 2 BLR 658 (CA) at 670. It follows that Baruti J‘s comments and findings on constitutional matters are obiter in nature, and represent only his personal views. They are not to be relied upon as precedents for the future. This is particularly so since we do not agree that socio-economic rights, such as the right to health, housing etc, and, in this case (in the view of Baruti J), to fair labour practices, have “by integration” become rights enforceable under the Botswana Constitution. This court has consistently held to the contrary, (see for example ATTORNEY-GENERAL & OTHERS vs DICKSON TAPELA & OTHERS CACGB-096-14 (unreported, at para 83 et seq)). In Botswana the fundamental rights which are protected are those69. 33 listed in Chapter 2 of the Constitution. They do not include socio-economic rights, and this was no doubt a deliberate decision made by the drafters. Our Constitution differs, in that respect, from the Constitution of South Africa. I also do not agree that an unlawful termination of employment could constitute “degrading treatment” in the sense used in section 7 of the Constitution. To the extent that this issue was improperly introduced by the Court, and incorrectly applied, the appellant is correct that the constitutional findings of the Judge cannot stand. On that ground, the appeal would succeed, but it remains to consider whether the judgment can stand for the other reasons relied upon by Baruti J. The second ground of appeal raised is that the Judge a quo erred in holding that section 18(1)(b) of the Employment Act must be read as including the requirement of a fair reason or just cause for termination of an employment contract by the employer. On the analysis of the law above, this is not a common law requirement, and it is not at present required of70. the High Court (on the authority of PHUTHEGO’s case) to read in these requirements in a case brought before it. Full argument on that issue will await an appropriate appeal brought from a judgment of the High Court. In the case of a matter brought before the Industrial Court, however, as this one was, the law as stated in SPIE BATIGNOLLES is to be applied, namely that there is, in terms of the Minister's Code of Good Practice, and in the exercise of the Industrial Court's equitable jurisdiction, a requirement that the termination of an employment contract by notice must be for just cause, and it must be effected by a fair process. This is obviously so, where, as in this case, the contract provides for such. It is common cause that this was not done. The appellant was adamant that it would give no reasons, as in its view none were required, and it is common cause that it failed to give the respondent any opportunity to make representations against the termination of his employment. Baruti J. was correct to hold that in labour law and as provided in the TDA, together71, 35 with the Code of Good Practice, it did not suffice in a case before the Industrial Court to rely on the absence in section 18(1)(b) or indeed in section 18(2) or section 17(2), of any requirement for just cause or due process. Those were additional requirements required by the Industrial Court in cases brought before it. In this case, however, whether the matter had been brought in the High Court or in the Industrial Court, and notwithstanding the findings made in PHUTHEGO’s case, the result would have been the same. This is because the respondent's contract of employment specifically provided that termination by notice could only be given for a fair reason and in accordance with a fair process. So, on the principles set out above, just cause and due process were to be shown for the respondent's termination by notice to be lawful. They were not shown. Baruti J was correct, in the final analysis, to hold that the termination was wrongful for lack of just cause and for lack of fair process. The appeal on the second ground must fail.72. 73. 74, 56 T have already held that the learned Judge was in error to hold that PHUTHEGO’s case has been subsequently overruled by other Court of Appeal cases but that error does not affect the result of this appeal. Similarly his criticism of that case was misplaced, as it concerned an appeal from the High Court, and not from the Industrial Court. Finally, I can find no basis upon which this court could interfere with the decision of Baruti J. on the issue of compensation. He took due note of the factors set out in section 27(4) of the TDA, including the claim of the appellant to be short of funds, and decided that an award of three months’ salary, or P417,150 was appropriate. That was within the usual range for a case of this sort, and there was no misdirection in law. In result: The appeal is dismissed with costs.37 DELIVERED IN OPEN COURT AT GABORONE THIS 26™ DAY OF JULY 2019. ‘LS. KIRBY JUDGE PRESIDEN Sse. TAGREE Ss 1.B.K. LESETEDI JUSTICE OF APPEAL T AGREE LWE ‘OF APPEAL T AGREE Le Sfeauser. LORD HAMILTON JUSTICE OF APPEAL L.T.C. HARMS: JUSTICE OF APPEAL T AGREE