Employees left facing terminations and transfers
An old Court of Appeal judgement on ‘constructive contempt’ has put a dent in the Botswana Mines Workers Union (BMWU) case, in which they wanted Makoro Brick and Tile to be interdicted and restrained from terminating employees contracts and transferring others to sister companies while they still had a pending case before court.
Constructive contempt is defined as contempt for an Order of Court not yet made but which will probably be made, where the act performed is done with the deliberate intention of frustrating the Court Order if and when it is made.
In other words, if you are aware of an application against you or expecting a judgment or Order to be made which is adverse to you, and before the judgment is delivered you take steps to render that judgment ineffective, you may be taken to have committed constructive contempt of Court.
The union represented by Kagiso Jani of Tshekiso Ditiro and Jani Legal Practice had approached the Industrial Court on an urgent basis accusing the brick-makers of constructive contempt of court. The urgent matter was heard on 3rd February in which Justice Diwanga issued a Rule nisi and ordered Makoro to appear before court on 11th February to answer to the reliefs sought by BMWU.
It was however to be a short-lived victory for the union as Justice Diwanga directed them to a precedent set by a Court of Appeal ruling on the Botswana Telecommunications Corporation Yellow Pages case.
In the judgement CoA dismissed the matter stating that the idea of constructive contempt has no place in the country’s laws.
In a marathon case, the union is demanding that Makoro recognise them as they’ve met all the requirements and achieved the all-important ‘33 percent’ threshold as per the Trade Disputes Act.
They argued that should Makoro Brick be allowed to retrench employees and redesign-ate others, then by the time the court pronounces its verdict, it’ll all be in vain as the number of employees would have been greatly diminished.
Attorney Jani argued that in this case the balance of convenience favoured the brick company.
“If the interim remedy is not granted what other remedy do we have. None because the applicant cannot represent dismissed employees,” said Jani.
Before conceding on the constructive contempt argument Jani told court that his clients’ rights were being trampled upon as the respondent has always known that there was a pending matter dependent on the number of their employees. He said the redundancy due to automation must follow the labour processes.
In his defence, Boingotlo Toteng, of Toteng and Company Attorneys said the CoA judgement dealt the applicant’s case a deathly blow as a there was no chance for a lower court to rule differently.
He said Makoro Brick has every right not to renew employment contracts and transfer employees in line with the company’s business model.
“The reason for the exercise is due to ending of contract of employment and automation process, not to frustrate the applicant on the matter before court as they claim,” said Toteng.
The defense attorney further told court on the balance of convenience his client stands to lose a lot should they be not allowed to go ahead with the retrenchment and transfer process.
“My client has spent a lot on machinery, brought experts to pass knowledge to staff with belief that production will continue. There’s no telling when this matter will come to conclusion, so the business has to run. In this matter the balance of convenience favours court not to grant the interdict,” Toteng said.
The matter is back in court on 23rd February.
