Law 334 Employment Law

GENERAL INTRODUCTION

1. ​Historical Background

The law governing contracts of employmet in Botswana has its origins in

the locatio conductio under Roman law. Locutio conductio literally
means letting and hiring. This means that contracts that involved the
letting and hiring of ‘things’ were, governed by the same laws under
Roman law, regardless of the subject matter of the hire. There were three
types of locatio conductio:

a) ​locutio conductio rei;

This was a contract for the letting out of a thing, usually

corporeal, for a reward. The hirer (conductor) received only
detention of the thing and the contract was normally for a
specified time. The first duty of the locator was to make available
to the conductor the thing and any normal accessories requisite for
its use and to ensure the former’s enjoyment of it for the agreed
period of hire.

b) locutio conductio operis

This was the placing of a contract for some work to be done or for
the production of a specified result for reward. The person
commissioning the enterprise was the locator and the one
contracting to produce the result, the conductor. Unless there was
an express undertaking that the conductor himself would execute
the work, sub-contracting was perfectly valid, though the principal
conductor would be responsible for the finished product.

The locator had to provide the materials to be worked upon. The

conductor had to ensure that the work was completed within the
agreed time or, if no time had been specified, within a reasonable
time for the completion of such a job.
c) locatio conductio operarum

This was the letting of one’s services for reward, the workman
being the locator and the employer the conductor. An individual,
whether skilled or not, who was presumed to let out his services
was one who worked under the direction of another, with no real
independent responsibilities, unlike the conductor operis. He was
 originally regarded as letting himself.
The employer had to pay the agreed wage and had to provide a
safe system of work. On the other hand, the workman had to do
what was required of him diligently, unless prevented from doing
so by something outside his control, in which event he would still
be entitled to his wages until he found other employment. Though
the death of the employed did not automatically end the contract,
in that the worker was still entitled to his wages from the
employer’s estate, the death of the worker did end the contract.
Of the three species of locatio conductio identified above, our law
of employment more specifically derives from the locatio
conductio operarum. Since this species of contract was generally
available for menial tasks under Roman law, it generally applied
to domestic employees and hence the assignment of employment
contracts to domestic and family relations law during the
Blackstone era.
2. ​Classification

The classification of industrial law (labour/employment) as either public

or private raises very interesting conceptual problems. This is so because
the law governing employment relationships in Botswana can qualify as
both public and private law. In order to understand how this is possible,
brief definitions of both public and private law will be made hereunder.
a) Public Law

Public law is generally used to define a set of laws (normative

rules and regulations) that govern the relationship between the
government on the one hand and persons (both natural and
juristic) as well as the relationship between the organs of
government inter se. To the extent that there can exist a
relationship that entails the provision of work between persons and
the government, the laws governing that relationship should,
consequently, be public in nature. The most obvious example of
such laws is the Public Service Act, which regulates the
relationship between the government and its employees.

b) Private Law
Private law refers to a body of rules and regulations (laws) that
govern the relationship between persons, both natural and juristic.
Since a contract of employment is just another species of a
contract, which may be entered into by and between private
individuals, and the law of contract is generally private in nature,
a contract of employment may also properly fall within the sphere
of private law.
3. ​Terminology

A contract of employment remains the basis of the employment

relationship because the legal relationship between an employer and an
 employee is created by it. That is, there cannot be any legally binding
relationship between the parties qua employer and employee unless they
have entered into a valid contract of service. The contract also forms the
basis for the existence of collective labour law.
In a bid to understand and appreciate the contract of employment and its
importance and significance in industrial relations law, a distinction has
to be made between what shall be termed ‘individual employment law’
hereunder, and labour law. ‘Individual employment law’ refers to the
combination of statutory rules and common law principles that govern
the relationship between an individual employee and an employer
whereas labour law is concerned with the relationship between
employers/management and the labour force collectively.

4. ​Legal Components

As outlined above, our law of employment owes its origins primarily

from the common law. There have, however, been some considerable
modifications to the common law, via statute. The most notable pieces of
legislation that govern/ regulate employment/industrial relations are:
a) Employment Act, Cap 47:01

This Act starts by defining the terms ‘employer’ and ‘employee’.

It then proceeds to set out the basic statutory fllor of rights and
obligations that accrue to the parties to contracts of employment.
It deals, inter alia, with the formation and content of a contract of
employment, the duties of the parties to the contract, remedies
available to either party in the event that the other breaches the
contract as well as the manner of terminating the contract.
b) Trade Disputes Act, Cap 48:02

As its name implies, this Act is primarily concerned with

procedure/manner for settlement of trade disputes both
individually and collectively. It also deals with collective labour
agreements (their content and legal significance), industrial action
and most notably, it establishes and spells out the powers of the
Industrial Court.

c) Trade Unions and Employers Organisations Act, Cap 48:01

This Act regulates the formation of and participation of employees
in trade unions. It also spells out the advantages of organized
labour, albeit in not so clear terms.
When dealing with labour matters, be it individual or collective, it is
always crucial to identify which law applies. Depending on the
circumstances of each case, one may have to determine whether the
matter may be resolved by reference to statute, common law or both the
statute and the common law or whether it is covered by a collective
labour agreement. In determining which law applies, the starting point
should always be the statute. This is primarily because the statute takes
 precedence over the common law.

It is only when the matter at hand cannot be resolved by reference to the

statute that one might have to make a reference to the common law. In
this regard, each topic to be discussed hereunder will commence with the
examination of the common law, followed by the statute. Any apparent
inconsistencies that may emerge will, as far as practically possible, be
reconciled and where such is not possible, the statutory position will
prevail.
WEEK 2
Nature of the Contract of Employment

It is of utmost importance, in any given situation, to determine the

nature of the relationship between the parties before attempting to
resolve any problem that they may have. The first step, therefore, will be
to establish whether the parties concerned are employer and employee
respectively because if they are not, their problem may have to be
resolved by recourse to some other branch of the law.

While identifying persons as employers and employees may appear to be

a relatively simple matter, there are situations where it is not
immediately apparent whether the parties have entered into a locatio
conductio operarum or a locatio conductio rei. This is so because even
though the locatio conductio operis entails the provision of work or
services, it is not a contract of service proper.
One may wonder why they should be saddled with definitional problems
since it should be left to the parties to determine the exact nature of their
relationship. The reality is, more often than not, the parties concern
themselves with how best to achieve what they contract for and not with
the exact nature of their relationship, such that what may genuinely be
intended to be a contact of employment turns out, on analysis, to be a
contract for services (independent contractor).

The distinction between a contract of employment (service) and a

contract for services (independent contractor) is of fundamental
importance because different legal consequences flow from the various
forms of contract. Most importantly, only persons engaged under a
contract of employment qualify for employment protection rights under
both the common law and statute. Despite the importance of making the
distinction, the formulation of all the possible tests for the presence of a
contract of employment have come from the common law (court
decisions) rather than the statute.
The courts have, over the years, formulated a variety of tests for the
existence of a contract of employment but to date, the only proposition
that can be put forward with confidence on the subject is that no single
test capable of general application in all cases has yet emerged. This
basically means that the question of which test to apply invariably
depends on the facts and circumstances of each relationship.

a) Common law definition

Despite the fact that there is no single all embracing definition of a

contract of employment, a contract of employment may be said to
exist when the agreement between the parties is such that the
reciprocal rights and obligations, expressly or impliedly agreed
upon, conform to the essentials of the locatio conductio operis.
While it appears to be much easier to determine the existence of a
contract of employment than to define it, there remains the need to
distinguish between a contract of employment and other forms of
contracts entailing the provision of work since a contract of
employment shares the majority of its features/essentials with such
contracts. It is in this regard that the Courts have, over the years,
devised tests for distinguishing the contract of employment proper
from the locatio conductio operis, for example.

i) ​T he control test

Traditionally a contract of employment was defined as ‘a

contract between two persons, the master (employer) and
the servant (employee), for the letting and hiring of the
latter’s services for reward, the master being able to
supervise and control the servant’s work. The emphasis was
on the extent to which the employer could control the
manner in which the employee could do his work. Thus if
the employer could tell the employee not only what to do,
but how to do it, then a contract of employment existed.
Colonial Mutual v. McDonald 1931 AD 412

This test was relevant in the mainly agricultural societies

and even in the early stages of the industrial revolution,
where the master was expected to be superior to the servant
in the knowledge, skill and experience which had to be
brought to bear upon the choice and handling of tools. It
reflected a state of society in which the ownership of the
means of production coincided with the possession of
technical knowledge and skill.
The application of this test has proved to be unreal in
modern times since ownership of the means of production
does not depend on the competence of the employer in the
field that he trades in. In modern conditions, persons are
generally employed because they possess professional
training and competence such that the employer may not
 even be in a position to instruct them on how the work is to
be done.
The later approach, while not doing away with the
requirement of control entirely, has been to look for the
right to control as being the determining factor for the
existence of a contract of employment rather than the de
facto control. The right to control as a test demonstrates an
acknowledgement that de facto control may not be possible
in many a vocation of the present day. It envisages the
employer’s right to control the employee as regards certain
other matters within the employment relationship besides
the actual time and manner of doing the job.

ii) Organisational test

In an endeavour to move away from

reliance on the evidently inadequate ‘control’ test as the sole
determinant for the existence of a contract of employment,
the English courts developed what they viewed, at the time,
to be an up-to-date test. They termed it the Organisational
Test.
“Under a contract of service, a man is employed as
part of a business and his work is done as an integral
part of the business.”
Per: Denning LJ in Stevenson, Jordan and Harrison Ltd v.
MacDonald and Evans [1952] 1 TLR 101.
This test was adopted by the South African courts in R v.
AMCA 1959 (4) SA 207 (A) but was subsequently rejected
primarily because it was, in the courts’ eyes, vague and
therefore, could not lend any useful assistance in the
determination of the existence of a contract of employment.

iii) Multiple/dominant impression test

The modern approach by the courts has been to abandon the

search for a single test to determine the existence of a
contract of employment and instead, to adopt a multi-
factorial test, which entails the weighing of all the factors
for and against the existence of a contract of employment to
determine whether the worker is employed or is in business
on his own account.
According to MacKenna J. in Ready Mixed Concrete
(South East) Ltd v. Minister of Pensions and National
Insurance [1968] 2 QB 497, there are three conditions
which must exist to make a contract one of employment:
 a) The employee should have agreed to provide his work
and skill in the performance of a service for his
employer, in return for a wage or other remuneration.
b) There must be a sufficient degree of control that the
employer exercises over the employee.
c) The other terms of the contract must not be
inconsistent with the existence of a contract of
employment.

While it may be pretty much easier to establish the existence

of the first two conditions, the same cannot be said about
the last one. However, as was correctly pointed out in
Market Investigations Ltd v. Minister of Social Security
[1969] 2 QB 173, no exhaustive list of the considerations
which are relevant can be drawn, nor can strict rules be laid
down as to the relative weight which the various
considerations should carry in all cases. Such considerations
will, however, include:
• Whether the man performing the services
provides his own equipment
• Whether he hires his own helpers
• The degree of financial risk that he takes
• The degree of responsibility for investment
and management
• Whether and how far he has an opportunity of
profiting from the sound management of his
task

Having considered the different tests that have been used and may
still remain somewhat relevant to the determination of whether one is
an ‘employee’ or is in business on his own account, what emerges is
that the employer’s right of supervision and control over the
employee, while it has a certain degree of relevance and importance,
is not an indispensable requirement for the existence of a contract of
employment. Its importance/significance notwithstanding, there are
other factors to be considered, depending on the nature of the contract
in question as a whole. Consequently, whether a contract of
employment exists in a particular case is a question of fact to be
determined by having regard to the particular relationship. In light of
that, it follows that it may not necessarily be possible, if not
unnecessary to formulate a single, all embracing test for the existence
of a contract of employment without a reference to specific
instances/situations.

b) Statute

The three pieces of legislation already alluded to above carry a

similar definition of the phrase “contract of employment” and they
define it thus:
‘“Contract of employment” means an agreement, whether
oral or in writing, expressed or implied, whereby one
person agrees for a wage or other benefit or both to let his
labour to and to perform it under the orders of another
person who agrees to hire it, including a contract of
apprenticeship or an indenture to learn.”

The question that naturally arises immediately following the

consideration of this statutory definition of a contact of
employment is whether the definition is any more elaborate and/or
is capable of lending any more clearer appreciation of the
existence of a contact of employment in any given situation than
the common law definition. In interpreting this definition, the
Industrial Court, in Power Nleya v. Item Botswana (Pty) Ltd Case
No. IC 147/96, after examining the tests alluded above, concluded
as follows:
“The Court finds that in the light of the definition of a
contract of employment as contained in section 2(1) of the
(Trade Disputes) Act, it is the Supervision and Control Test
that must be applied.
The definition of ‘contract of employment’ refers to the
letting and performing of labour ‘under the orders of
another person who agrees to hire it’ (Court’s underlining).
Had these words been omitted from the definition, the Court
would have favoured and felt free to adopt the Dominant
Impression (Multiple) Test. The insertion of the words
‘under the orders of’ is significant and leaves the Court no
choice other than to apply the Supervision and Control Test,
and further the Court finds that these words require the
Court to take the strictest approach.”
This case was cited with approval in Tebalo Setshed v. Coin
Botswana (Pty) Ltd Case No. IC 190/96 and in Charles Jacobs v.
Coin Botswana (Pty) Ltd Case No. IC 75/97.
This rather narrow interpretation of the statutory definition of a
contract of employment was rejected by the Industrial Court in
Sigwele v. Botswana Life Insurance Ltd [2000] 2 BLR 331
FORMATION AND CONTENTS OF A CONTRACT OF
EMPLOYMENT

Formalities

As a general rule the rules governing contracts of employment are those that
are applicable to all contracts generally. That is, a contract of employment is
just another species of contracts generally and not a contract sui generis.
Therefore, all the rules that apply to contracts generally apply to contracts of
employment. While at a basic level a contract is ordinarily defined merely as
an agreement made with the intention to create obligations, Section 2 (1) of
the Employment Act contains a more elaborate but precise definition of a
contract of employment:

“an agreement, whether oral or in writing, expressed or implied, whereby one

person agrees for a wage or other benefit or both to let his labour to and to
perform it under the orders of another person who agrees to hire it, including
a contract of apprenticeship or an indenture to learn”.

The agreement

There must be consensus between the parties. That is, there must be an
intention by both parties to create a legally binding agreement. This
requirement is, incidentally, standard and forms the very basis for the existence
of all types of contracts. The agreement must also be voluntary. This is in
view of the fact that extraction of forced labour is an offence in terms of
section 71 of the Employment Act.

The parties have a complete discretion as to the terms of their agreement,

provided they remain within the bounds of legality. That is, there is no
limitation on what the parties may include in their agreement provided that
such is not contra bonos mores or illegal. Ordinarily, however, the contract
becomes complete and legally operative once an agreement is reached on the
type of service the employee would be expected to provide and the payment in
respect thereof, since these duties represent the dominant features of an
employment contract. The agreement need not be express and does not need
to be in writing. The agreement may be implied and oral (See: Section 14,
Employment Act).

The parties

A contract of employment requires two parties, an employer and an employee.

The parties must have the capacity to enter into a legally binding contract and
the capacity to enter into a contract of employment is governed by the same
considerations that apply in every contract. In terms of the common law,
contracts entered into by infants (persons under the age of 7) are void while
those entered into by minors between the ages of 7 and 21 are voidable at the
instance of the minor’s guardian.

The statutory position as relates to the capacity to enter into a contract of

employment appears to differ, albeit slightly, with the common law position.
The Act makes a distinction between a child and a young person and defines
a child as a person who has not yet attained the age of 15 years while a
young persons refers to a person who has attained the age of 15 but is under
the age of 18 years. The general rule under the Act appears to be that
contract of employment entered into by children are void ab initio. This is in
view of the fact that section 107 of the Act prohibits the employment of a
child ‘in any capacity whatsoever’.

The same provision does, however, contain an in-built exception, which

permits the employment of children who have attained the age of 14 years and
are not attending school on light work that is not harmful to their health and
development, provided the work is being provided by a member of the child’s
family or the work is of a character approved by the Commissioner. This seems
to imply that contracts entered into by children over the age of 14 years are
voidable at the instance of the guardian if they do not satisfy the requirements
of the section.

As far as young persons are concerned, the statutory position appears to be that
they are free to enter into legally binding contracts of employment provided
that such contracts do not require them to work underground or during the
night. This certainly represents a departure from the common law in that while
contracts entered into by minors are voidable, contracts entered into by young
persons under the Employment Act are perfectly valid, notwithstanding the fact
that they would be voidable under the common law.

c) ​Duties of Parties

It must be noted that the duties of the parties to a contract of employment

must, first and foremost, be capable of performance and must not be contra
bonos mores. The rights and duties of the parties may be derived from a
number of sources, which shall be discussed hereunder. They may be expressly
or impliedly agreed upon and they may be assumed from the nature of the
employment itself.

d) ​Duration

There are three types of contracts of employment:

Indefinite period contract;
ii) ​Fixed term contracts; and

iii) ​Contracts for a specified piece of work

If the parties do not specify a date on which the contract is to terminate, the
contract is for an indefinite period it endures until it is lawfully terminated.

However, where the parties specify the duration of the contract, the contract
will continue/exist for the specified period unless it is terminated earlier.
Similarly, if the parties contract for the performance of a specified task, the
contract will come to an end once that task has been completed.

The above notwithstanding, a fixed-term contract and a contract for a specified

piece of work may be tacitly renewed by the conduct of both parties. If the
parties do not subsequently agree on the duration and/ or the task to be
performed under the new contract, the new contract is deemed to run
indefinitely but under the same terms and conditions as the previous contract.

See: Ditshele Mampane and Others v. Bolux Milling (Pty) Ltd Case No. IC
147/99

e) ​Remuneration

Since the obligation to pay wages is the corollary of the duty to render services
(which is the most important duty of the employee), there has to be an
agreement on the wages to be paid to the employee before a valid contract of
employment can be said to exist. The wages to be paid to the employee must be
fixed or readily ascertainable, otherwise the contract will be invalid. An
agreement to pay “a reasonable sum every year” would be void for vagueness
since it is not capable of any precise or even relative determination.

See: Beretta V Beretta 1924 CPD 60

Under Common Law, wages may consist partly in cash and partly in kind.
However, in terms of section 83 of the Employment Act, the entire amount of
wages and other payments due to an employee must be paid in legal tender or
some other negotiable instrument expressed in legal tender, otherwise the
payment will be null and void.
Employer’s Power of Command

As noted above, the employer’s power of command is regarded as one of the

key characters of an employment relationship. The importance of ‘control’ as a
feature of an employment contract is echoed in the definition of a ‘contract
of employment’ in section 2 of the Employment Act.

See: Charles Jacobs v. Coin Botswana (Pty) Ltd Case No. IC 75/97

Variation of Terms of the Agreement

As a general rule once agreement upon, the terms of the contract are fixed
and neither party may unilaterally vary them unless the original contract
provides for such variation. An intended variation of the terms of an
employment contract, even if brought to the attention of the employee, remains
unilateral unless the matter has been negotiated with the employee. For a
unilateral change in the terms of the contract not to be unfair, there has to be:

a valid reason for the change; and

​

ii) ​the change has to be effected through a fair procedure.

For a reason to be said to sufficiently justify a variation of the terms of a

contract of employment, it should be based on a rationalization of an
economic, technical or structural nature. However, the rationalization should
not be contrary to any law or collective labour agreement. As far as the
procedure is concerned, there has to be bargaining to a deadlock and the
employee has to be allowed to resist any alteration in accordance with the
available conciliatory machinery.

See: ​Madimabe v.Vegepac [1997] BLR 159

​Mogopodi V Ed-V-Comp (Pty) Ltd [1995] BLR 505

Moyo V Kgolagano College [1995] BLR 778

Where there is a threat of a unilateral variation of the terms of the contract of

the contract under the common law, an employee may either seek an interdict
against the employer or wait until the variation is introduced, then refuse to
work (because of employer’s breach) and sue for damages for damages for
breach of contract.
Implied Terms

These are terms that are imported into the contract either by the conduct
of the parties or by operation of law, even if the parties are not aware of
their existence at the time of contracting. For example, a condition to the
effect that the employee would not steal from the employer does not need to be
expressly agreed upon. Implied terms may only be excluded by express
agreement to that effect, except where the exclusion is contra bonos mores.

Legality
A contract of employment may not contain provisions that are unlawful. For
example, the law will not recognize a contract fin terms of which one is
employed as a sex worker.

2. ​Sources of the Terms of a Contract of Employment

Express Terms

These represent the expressed intention of the parties. Usually the intention of
the parties is expressed in words (written or oral). A reference to the express
intention of the parties is taken to be a reference to the intention of the parties
as expressed in words, notwithstanding the fact that the intention may be tacitly
expressed. The exact manner in which the intention of the parties is
expressed is irrelevant except where the law lays down formalities for the
conclusion of the contract. As alluded to above, contracts of employment need
not be in writing nor does the agreement that results in the contract have to be
express. The same, however, is not true for recruitment contracts. Recruitment
contracts are contract in terms whereof the employee is engaged to work
outside Botswana. Section 41 of the Employment Act makes it mandatory for
recruitment contracts to be in writing.

The most common source of the express terms of a contract of employment is

the letter of offer of employment or letter of appointment. The letter normally
contains the following material particulars:
The Parties: The letter identifies both the employer and the employee
The Job: This is the part of the letter where a brief synopsis of the employee’s
job description is given, his/her hours of work as well as whether or not he/she
would be entitled to earn overtime.
The Remuneration: In this part, the letter will state the period of payment of
the employee as well as other fringe benefits that the employee may be entitled
to.
Vacation/Sick Leave: This part gives an indication of how much paid
vacation/sick leave the employee will be entitled to per annum.

The other sources of express terms are what is commonly known as the “Terms
and Conditions of Employment” and collective labour agreements. These
sources will be examined under separate headings hereunder.

Where the terms of a contract have been reduced into writing, the resulting
document will be accepted as the sole evidence of the terms of the contract. In
terms of the parole evidence or integration rule, when a contract has been
reduced to writing, no evidence may be given of its terms, except the
documents itself, nor may the contents of such document be contradicted,
altered, added to or varied by oral evidence.

The aim and effect of this rule is to prevent a party to a contract which has
been integrated into a single and complete written memorial from seeking to
contradict, add to or modify the writing by reference to extrinsic evidence and
in that way, redefine the terms of the contract.

Horton v. Wind-Dorf Case No. IC 184/2000

Lekoba v. Green Industrial Enterprises (Pty) Ltd [1995] BLR 845
Gaborone Consumers Co-operative Society v. Gaolekwe [1998] BLR 177

Implied Terms

These are terms that were not expressly agreed upon at the time of contracting.
The need to import terms that the parties did not expressly agree on at the time
of contracting has been justified on the grounds that implying terms into the
contract will give business efficacy to the contract. That is, since it is not
possible for the parties to agree, literally, on all the terms that will govern their
relationship at the time of contracting, it would not make much business sense
for the parties to meet whenever a question arises as to whether or not a
particular term/condition applies in their particular contract.

There are two ways in which terms may be implied into a contract of
employment. Terms may either be implied into the contract by operation of
law or they may be implied from the conduct of the parties.
​

2.2.1 ​T erms Implied by Law

These are legal rules that state or define the rights and duties of the parties to
the contract of employment in different and varying circumstances. They may
also be categorized as the naturalia of the contract and the general principles
of the law of contract applicable to a particular contract. However, courts will
not ordinarily imply or read terms into the contract if the terms would be
contrary to the contract itself.

2.2.2 ​T erms Implied from Conduct

It is common cause that it would not be practically possible to assess whether

or not a particular term should be imported into a contract of employment by
assessing the ‘conduct of the parties’ since the assessment is normally done
long after the parties have met and concluded the contract. The courts have,
therefore, devised a means to determine whether or not the parties would have
agreed on a particular term at the time of contracting, had they averted their
minds to it. The test is normally referred to as the “officious or imaginative
by-stander test”. According to this test, the question to determine is whether, if
a by-stander had asked the parties at the time of contracting what the position
would be in a particular case, they would they have responded by saying that
they thought the matter was so obvious that they did not need to expressly state
it.

First National Bank Ltd v. Late Our Properties (Pty) Ltd and Anor. [1995]
BLR 701

2.3 ​Statutory Terms

The Employment Act lays down the ‘basic minimum statutory floor’ of rights
and obligations that accrue to parties to a contract of employment. Therefore,
the parties cannot legally enter into a contract of employment whose terms
and/or conditions are less favourable than those prescribed by the statute.
Where, however, a contract of employment provides for terms and conditions
that are more favourable to an employee than those prescribed by the statute,
such terms and conditions will take precedence over the statutory terms.
Statutory terms will be discussed in detail below.

​Section 37, Employment Act

Collective Labour Agreements

Collective labour agreements are agreements made by and between a single or

group of employers on the one hand and a trade union on the other.
Collective labour agreements may consist of a single document containing
both procedural and substantive issues and successive separate documents.
A procedural agreement governs the relationship between the signatories
thereto and generally lays down the procedure to that either party has to
follow in addressing issues of mutual concern between them. A substantive
agreement, on the other hand, determines and/or provides terms and
conditions of employment of those covered by the agreement. The terms of
the agreements, whether procedural or substantive, are legally binding on the
individual employer and employee and they are ordinarily incorporated into the
individual contract of employment, either expressly or impliedly. Once
incorporated, the terms of a collective agreement become part of the contract
and cannot be unilaterally altered.

In determining whether the terms of a collective labour agreement are binding

on an individual employee, it is of utmost importance to ascertain whether or
not the trade union to which the employee belongs has accepted the agreement
on his behalf and therefore incorporated it into his contract by implication. In
the case of non-unionised employees, the terms of a collective labour
agreement may only be expressly incorporated into his/her contract of
employment. Collective labour agreements shall be dealt with in sufficient
detail below.
Work or Company Rules
Work or company rules may take various forms and may be founds in a variety
of documents. They are normally contained in booklets but they may also be
contained in posted notices. Work rules may take the form of the actual terms
of employment or they may be unilaterally imposed instructions. Unlike the
terms of employment, unilaterally imposed instructions may be unilaterally
altered but failure by the employers to obey them may amount to a breach of
the duty to follow all lawful and reasonable orders.
Work or company rules may, therefore, be defined non-negotiable
instructions laid down by the employer but must, nonetheless, be observed by
the employee. For example, the employer may prescribe a particular manner or
method of doing a particular job, which an employee may not necessarily agree
with but must observe nonetheless. In order for work rules to bind employees,
they must be clear, unambiguous and known to employees.
It suffices to note, at this juncture, that there may be circumstances where some
aspects of the work rules may be regarded as actual terms, despite their
unilateral nature. However, the legal significance of work rules is a question
of fact, to be determined by circumstances of each case.
​

For example, Secretary of State for Employment v ASLEF, there was a rule
that required employees to ‘make reasonable effort to facilitate the working of
trains and prevent unavoidable delays’.
​

The Court held that the rule was not a term of the individual contracts of
employment and that it was merely an instruction on how a man should do his
work. Rather, it was an implied term of his contract of employment that he
will interpret the rule reasonably.

Custom and Practice

The proviso to Section 99(1) of the Employment Act refers to custom as a

possible source of the terms of a contract of employment. By custom we mean
those practices that are peculiar to and have been known to be observed in a
particular industry or even a single firm. For example, in Sagar v Ridehalh,
[1931] 1 Ch. 310, the Court held that it was a well established custom/practice
within the cotton weaving industry that a cotton-weaver’s wages would
ordinarily be deducted for bad workmanship.

In order for a custom to be upheld, it must be long established, reasonable,

certain, not contrary to law and it must be strictly proved. Therefore, clear
and compelling evidence is required to prove the existence of a custom or
practice.

DUTIES OF THE PARTIES TO A CONTRACT OF EMPLOYMENT

1. ​Duties of the Employee

1.1 To enter and remain in service

The essence of the contract of employment is that the employee
should make his serviced available to the employer (place his
personal services at the disposal of the employer). The common
law position is that an employee is only entitled to receive wages
if he has rendered services. Therefore, the general position under
the common law is that failure to render services disqualifies the
employee from receiving wages regardless of the reason(s) for
such failure.

Potchfstroom Municipal Council v Bouwer No. 1958 (4) SA 382

If, however, the employee is willing to work but is prevented by

the employer from doing so or the employer is unable to provide
work, he is entitled to his wages. The employee is required to
avail his services to the employer on the agreed dates and at the
agreed times without failure until the contract of employment is
terminated.
​

Failure to render services may range from unpunctuality to total

absence or desertion. It is not clear whether an isolated instance of
 absenteeism can be a valid ground for dismissing an employee.
But it appears as though the question borders around whether or
not the incident occasioned some prejudice on the employer.

Schneier and London Ltd v Bennet 1927 TPD 346

​Kenosi v Westhynd Security Case No. IC 16/94

As far as unpunctuality is concerned, the law does not appear to be

settled on whether a single instance of unpunctuality can be a valid
ground for terminating a contract of employment. In Kaplan v
Penkin 1933 CPD 223, the Court held that the employer was not
entitled to dismiss an employee, when the employee (cinema
projectionist) arrived at the cinema 10 minutes late and found a
fault in the projector which he could not rectify on time, thereby
causing a scheduled performance to be cancelled.

Q: Wasn’t the cancellation of the performance prejudicial to the

employer’s business interests?

However, in Daniels v Thomas 1924 NLR 295, the employee was

a waiter whose normal hours of work were 7-9 am, 12-2 pm and 6
– 8:30 pm. He absented himself from duty from 9 am to 5:45 pm.
The Court held that the employer was entitled to summarily
dismiss the employee.

The Court in Strachan v Prinsloo 1925 TPD 700, on the other

hand, sought to come up with guidelines that could be
followed in cases of both unpunctuality and/ total absence to
determine whether or not dismissal would be justified in any
given case. It held that the essential issue was whether the
employee’s conduct amounted to a breach of a vital term of
the contract of employment, whether express or implied. In
determining whether the employee breached a vital term of
the employment contract, one had determine:
​

a) ​nature of employees work (the more important the more

justified the dismissal)

b) ​whether employee’s absentee disrupted the normal course

of the employer’s business
 c) ​length of employee’s service with the employer concerned

d) ​reason(s) for the employee’s absence

e) ​duration and frequency of absences

The Court further emphasized that the above-stated considerations

were independent of each other such that no particular factor could
be looked at in isolation to determine whether or not dismissal
would be justified in a particular case.

The Employment Act does not make a distinction between

unpunctuality and total absence (desertion). One may, therefore,
argue that the provisions relating to absence will apply, mutatis
mutandis, to unpunctuality. This is in view of the fact that
unpunctuality is literally a temporary absence. In terms of section
21(2) of the Employment Act, an employee who absents himself
from work without the prior consent of his employer is deemed to
be in breach of contract unless he has reasonable cause for the
absence and he communicates his reasons for the absence to the
employer as soon as it is reasonably practical to do so.

Mathumo v. The Gazette [1997] BLR 43

In Molome v. Orient Express Chinese Restaurant, Case No. IC

67/98, however, the Court held that the employer was justified in
dismissing an employee who had come late to work, citing
unreliable public transport as the cause of his late coming. The
Court did not even examine the reason given by the employee for
coming late before determining whether or not the employer’s
decision to dismiss his was fair. Instead, the Court’s reasoning was
that the employee has failed to obey a reasonable order given by
the employer.

Q: How does coming late to work on a day when you have been
specifically asked to come at a certain time differ from coming
late on any other normal working day?

Q: Shouldn’t the Court in Molome have considered the actual

prejudice caused to the employer by the employee’s late coming in
order to determine the fairness of the dismissal?

Unlike unpunctuality and absenteeism, inability to work as a result

of no fault on the part of the employee is generally not a valid
ground for termination of the contract. This is particularly the case
where the employee is unable to work due to illness because
section 100 the Employment Act mandates employers to grant
employees a minimum of 14 days per annum as paid sick leave, as
and when they fall ill.
​

Mosinyi v Lobatse Engineering (Pty) Ltd Case No. IC 113/2000

But: the employer may be justified in treating the contract as

terminated by supervening impossibility of performance where the
illness prevents the employee from performing / rendering services
for an unreasonably long period of time.

It is worth noting that since the employee’s duty to render services

is the corollary of the employer’s duty to remunerate (“no work,
no pay”), an employee who has not been paid may legitimately
refuse to work without breaching his contract.

1.2 ​To Maintain Reasonable Efficiency / Competence

The guarantee of reasonable efficiency / competence is implied

into every contract of employment. This is due to the fact that by
applying for a particular job, the employee represents himself,
either expressly or impliedly, that he possesses the skills or
competence required for that job.

​Friedlander v Hodes 1944 CPD 169

The general rule as regards this duty is that an employee is bound

by any representations that he makes regarding his competence.
This, however, does not include representations made in
testimonials and references unless the employee has knowledge of
the contents of the same. The standard of competence that the
employer has to expect of the employee will depend on the
capacity in which the employee is engaged. Therefore, the test for
the standard of competence is that of a person comparable with the
employee in question in terms of training, experience and any
other special claims that he might have made regarding his
competence.

​Negro v Continental Knitting and Spinning Mills (Pty) Ltd 1954

(2) SA 203 (W)

In terms of section 26(4) of the Employment Act, willful

misrepresentations of one’s skills or competence amounts to
serious misconduct. This means, therefore, that the employer will
be justified in summarily dismissing an employee who turns out to
be not as competent as he represented himself to be.

In recent history, the Industrial Court has been inundated with

cases of dismissal due to poor /unsatisfactory work performance.
This has particularly been the case with employees who, by the
nature of their work are expected to achieve certain sales targets
set by their employers. The principles for a fair dismissal based on
poor work performance were outlined by the Court as far back as
1996 in Morwaanare & Others v. Security Systems (Pty) Ltd,
[1996] BLR 211. According to the Court, a distinction ought to be
made between employees who are unwilling to perform their
obligations and those who are willing but cannot do so efficiently
because the former are guilty of misconduct while the latter are
not. While the employer is generally not precluded from
dismissing an employee for poor or unsatisfactory work
performance, it may only do so after it has taken reasonable
measures to try and remedy the defective behaviour.

The relevant consideration in this regard is whether the employer

can fairly be expected to continue with the relationship, bearing in
mind its interests and those of the employee as well as the
circumstances of the case. In addressing this question, several
factors come into play, viz:
• The extent and degree of the employee’s inability to
perform properly;
• The possible prejudice to the safety of others or possible
effect on the morale of other employees;
• The likelihood of future improvement;
• The availability of other work that may suit the employee’s
capabilities; and
• The seniority and rank of the employee.
The dismissal of the employee will only be substantively fair if,
on consideration of all the factors indicated above, the employee’s
incapacity or incompatibility is irreparable.

As far as the procedure to be observed prior to dismissing an

employee for unsatisfactory work performance is concerned, the
 most fundamental of requirements is that the employee should take
‘reasonable steps’ to remedy the situation. The steps include but
are not limited to the following:
• The employer must inform the employee that his or her
performance does not meet the required standards;
• The employee must be granted a reasonable opportunity for
improvement and should be warned about the consequences
of failure to improve; and
• The employer must assist the employee to improve his or
her performance. This may include further training or such
other remedial measures as may be deemed appropriate.
If, after the steps alluded to above, there is still no improvement
or there is insufficient improvement, the employer must give the
employee a final opportunity to state his or her case before
deciding to dismiss him or her.

1.3 ​F idelity / Duty to Further the Employer’s Business Interest

An employee is expected to devote all his normal working hours

to furthering the employer’s business interests. This means that
employees are generally prohibited from working for other
employers in those hours without the employer’s consent. Even
where an employee’s contract of employment does not bind him to
working for a single employer, he may not work for a competing
employer during the currency of his employment. Similarly, the
employee himself may not engage in business that competes with
that of his employer whilst employed. This is premised on the fact
that since an employee’s duty to act in good faith is fiduciary in
nature, an employee should not be permitted to take advantage of
his position in the business to make secret profits.

See: ​Hivac Ltd v. Park Royal Scientific Instruments [1946]

Ch. 169
Mabina Peo & Anor v. BTC, Misca F45/02

The duty of fidelity does not generally bind ex-employees. As far

as ex-employees are concerned, the general rule is that ex-
employees are free to go into competition with their former
employers. There are, however, certain restricted circumstances
wherein the duty of fidelity survives the termination of the
employment relationship. The duty of fidelity may find
application on ex-employees where the use of information is
concerned. In Faccenda Chicken v Fowler Knox D’archy Ltd &
Ors v Jameson & ORS 1992 (3) SA 52, the Court identified three
types of information that an employee could gain access to during
employment as follows:
 a) information that is generally accessible to the public, which
an employee is free to use during or after employment.

b) confidential information, which the employee cannot use

whilst in employment but will be free to use once the
contract has ended

c) trade secrets, which an employee is not free to use during

and/or after employment

According to the Court, ex-employees will only be precluded from

using trade secrets of the former employer to compete with him or
her. As far as confidential information is concerned, the obligation
not to use it to the detriment of the employee only extends as far
as the duration of the contract. Once the contract ceases, the
former employee will be free to use it, even to compete with the
former employer.

Given the apparent weakness of the implied duty of fidelity once

the employment contract has ended, employers normally protect
themselves against divulgence of any information gained during
employment by inserting restraint of trade clauses in employees’
contracts of employment. Restraint of trade clauses are perfectly
lawful but courts require that the limitation they impose be
reasonable for the protection of the employers proprietary interests
and must generally be in the public interest.

In Magna Alloy & Research (SA) (Pty) Ltd v Ellis 1984 (SA)
874, it was held, in relation to the legality or otherwise of
contracts in restraint of trade, that each agreement should be
examined with regard to its own circumstances in order to estimate
whether its enforceability would be contrary to public policy. An
unreasonable restriction on a person’s freedom to trade is prima
facie contrary to public policy. Where a party to a restraint
agreement alleges that he is not bound by a restrictive condition to
which he is agreed, the onus is on him to prove it.

​See also: Martex Trading (Pty) Ltd v. Lloyd [1998] BLR

​
1.4 ​Duty to Avoid Misconduct

Misconduct may vary in degrees from mere to serious misconduct.

The Employment Act appears to confines itself to addressing
issues serious misconduct. In particular, section 26 of the Act deals
with serious misconduct committed in the course of one’s
employment. While one may be mislead into thinking that its only
misconduct committed in the course of employment may
constitute a ground for dismissal, that view may not be entirely
 correct. Misconduct can, in appropriate cases, constitute a ground
for summary dismissal even if committed before the
commencement of the employment contract. The general rule
regarding disclosure of past misconduct(s) is that there is no duty
on a prospective employee to disclose prejudicial information
from his past to the future employer.
​
Hoffman v Monis Wineries Ltd 1948 (2) SA 163.

A duty to disclose past misconduct(s) will, however, arise where

non-disclosure of such misdemeanors amounts to fraud (fraudulent
non-disclosure so-called). That is, a misconduct committed before
the commencement of the employment contract should be
disclosed where it may render the prospective employee totally
unfit for the future employment.

As far as misconduct committed in the course of employment is

concerned, the misconduct must be committed within the course of
employment. While it is not apparently clear what the phrase
‘course of employment’ means, one may safely assume that the
misconduct must have been committed while at work or within
working hours. This is due to the fact that it will be too onerous
on the part of the employees to allow employers to make it their
business what employees do outside working hours. Further to this
requirement, the misconduct should be of such a nature as to make
the employee unfit to continue to be employed in the employer’s
business or to render the continuation of the employment
relationship intolerable. For example, where the employee comes
to work under the influence of alcohol.
​
Mfaladi v Kalahari Resources Development Corporation [1996]
BLR 239

​T he above notwithstanding, it is possible for an employer to

punish or reprimand employees for a misconduct that was
committed off duty. The circumstances under which the employer
may so act are, however, more restricted that where the
misconduct is committed while on duty. In the case where the
misconduct is committed off duty, the employer cannot
lawfully/legally reprimand the employee unless the misconduct
amounts to a breach of an express term/condition of employment.
In other words, there must be an express term within the contract
of employment that permits the employer to reprimand employees
for misconduct committed outside working hours.
​Selepe v Barclays Bank of Botswana Ltd Case No. IC 76/95
​
1.5 ​Duty to Obey the Employer’s Orders
 It is implicit in every contract of employment that the employee
undertakes to obey all lawful and reasonable orders given by the
employer. This duty is different from the duty to respect the
employer in that the duty of obedience involves an express or
implied repudiation of the employer’s lawful authority. In order to
justify summary dismissal, the disobedience must be deliberate and
serious.

​Molome v. Orient Express Chinese Restaurant (supra)

If, however, an employee disobeys an unreasonable, unlawful or

degrading order given by the employer, his action would not
constitute a breach of this duty and consequently, the employer
will not be entitled to dismiss him.

Mogopodi v Ed-U-Comp (Pty) Ltd [1995] BLR 505

​Masepe v. Hi-Tech Cleaning Services (Pty) Ltd [1995] BLR 811
​Modise v.Kagiso Funeral Parlour (Pty) Ltd Case No. IC125/2000
​
2. ​Duties of the Employer

2.1 Duty to Provide Work

The duty to provide work is the corollary of the employee’s duty
to render services. Under the common law, the employer is
generally not obliged to provide the employee with work. Where
the employer does not provide the employee with work, the latter
will still be entitled to his remuneration. In Collier v Sunday
Referee Publishing Co. [1940] 2 KB 647, Asquith J observed, in
relation to the employer’s duty to provide work, as follows:

“Provided I pay my cook her wages regularly, she can’t complain

if I choose to take any or all of my meals out”
​ ​

There are, however, certain exceptional circumstances where

failure to provide work may result in a breach of this duty:

a) ​if failure to provide work can lead to a loss of reputation or

publicity or degradation of status.

Muzondo v University of Zimbabwe 1981 (4) SA 755

​Stewart Wrightson (Pty) Ltd v Thorpe 1994 (4) SA 67
 b) ​if it leads to a reduction in the employee’s actual/potential
earnings. This is common in situations where employees are
paid a commission over and above their monthly earnings
for having exceeded a specified target.

Turner v Goldsmith [1891] 1 QB 544

​

c) ​if an employee needs practice in order to maintain/develop

his skills in employment.

The statutory position regarding the employer’s duty to provide

work appears, prima facie, to be different from the common law.
Section 16(1) of the Employment Act places an obligation on an
employer to provide his employees with work. This
notwithstanding, failure on the part of the employer to provide
work does not amount to a breach unless the employer also fails to
pay the wages due at the same rate that the employee would
ordinarily be paid when he has rendered services. It remains a
moot point, therefore, whether there is any practical significance
in placing an obligation on employers to provide work when the
obligation can merely be discharged by paying wages. To that end,
where a question arises as to whether an employer has a duty to
provided work in a case where such employer has paid wages, it
appears that resort may have to be ahs to the common law rather
than the statute.

2.2 ​Duty to Remunerate / Pay Wages

The employer’s duty to remunerate employees is the corollary of

the employee’s duty to render services. The employee must be
paid his dues once he has performed his duties and the express
terms of the contract will normally determine the amount of
remuneration to be paid to the employee. As indicated above, a
contract of employment will be void if there is no agreement on
the wages to be paid to the employee.

In terms of section 83 of the Employment Act, wages due to an

employee should only be paid in legal tender or by a negotiable
instrument expressed in legal tender. The section further indicates
that any attempt by an employer to pay an employee in any other
form will be null and void. As far as the validity of the contract
itself is concerned, section 85 provides that a contract will not
become void by reason of the fact that it provides for the payment
of wages in kind, provided that the payment in kind does not
exceed 40 per cent of the total wages payable. This is not
withstanding the fact that section 83(3) makes it an offence for an
 employer to pay wages in any other means than legal tender.

The other provision that is worthy of mention regarding payment

of wages is section 81. In terms of that section, an employer is
prohibited from making any deductions without the consent of the
employee except for deductions that the employer is mandated by
law to make. It does not matter whether the deductions are made
in respect of payment that is due to the employer.

Mfaladi v. Kalahari Resources Development Corporation (Pty)

Ltd [1996] BLR 239

The effect of failure to pay wages is found in section 21(1) of the

Employment Act, which provides that failure to pay wages on the
part of the employer amounts to a breach of contract. The
implication of this section is that the employee has a right to either
terminate or enforce the contract. Where the employee chooses to
enforce the contract, he may refuse to work without breaching the
contract.

Similarly, where the employer has terminated the contract either

summarily or on notice, the general rule is that the employer must
pay the employee for services rendered up to the day of the
dismissal. This period must include rest periods and the time when
the employee was absent on paid vacation or sick leave. An
employer who fails to pay wages for partial performance is guilty
of an offence.

Section 90, Employment Act

Spencer v Gostelow 1920 AD 617
​

Q: Should an employee who deserts or terminates the

contract without giving proper notice be entitled to wages
for partial performance of the contract?

​2.3 ​To Observe Prescribed Hours of Work

The general rule regarding hours of work is contained in section

 95 of the Employment Act and it is to the effect that an employee
should not be made to work for more than 8 hours in a day and
for more than 48 hours in a week. Within the 8 hours that
employees could be made to work in a day, they should not be
made to work for more than 5 consecutive hours without being
granted a rest period of at least 30 minutes. Employers are, in
some situations allowed to either make their employees work for 8
consecutive hours in a day or to increase the hours of work beyond
8 hours per day. This is permitted in situations where the nature of
the work requires that it be carried out continuously and where the
ordinary working week for the employees is 5 days respectively.
In either case, however, the employees should be granted a rest
period of at least 45 minutes and 1 hour respectively.

If an employee is made to work any time in excess of his

prescribed daily hours of work, the excess time worked constitutes
overtime and the employee concerned should be paid one and half
times his normal hourly rate. The hours of work constituting
overtime should not, however, exceed 14 hours per week for any
one employee. Notwithstanding the above, an employee should be
made to work for more than 12 hours in any one day except in the
case of an emergency, or where the employee is employed in an
industry that is deemed to be vital to Botswana’s economy.

Q: Is there a need to impose a restriction on the number of hours

that may be worked as overtime in a week?

​Khana Masepe v Hi-Tech Cleaning Services (supra)

In terms of the regulations governing agricultural and domestic

employees, the hours of work prescribed by section 95 do not
apply to agricultural and domestic employees. The regulations
governing agricultural employees are silent on the hours of work
that the employees should work either in a day, week or month.
That is, there is no indication in the statute of the average number
of hours that have to be worked by agricultural employees either
daily, weekly or even monthly. As far as domestic employees are
concerned, however, they should not be made to work more than
240 hours in any period of four weeks.

Similarly, section 95 does not, technically speaking, apply to shift

workers. In terms of section 97, shift workers may be required by
their employer to work for more than 5 consecutive hours without
 a break, more than 8 hours in a day and more than 48 hours in a
week, provided that the total number of hours worked over any
period of four weeks does not exceed 48 hours in a week.
Additionally, shift workers are not entitled to be paid overtime for
hours worked in excess of the ones contained in their contracts of
employment or otherwise agreed upon. However, Shift workers
would be entitled to claim overtime where their working hours
exceed 48 hours per week over a period of three weeks. The
overtime payable will be in respect of the hours worked in excess
of the 48 per week average.
Botswana Mining Workers Union v. Botswana Ash (Pty) Ltd,
Case No. IC 248/2001.
​

2.4 To Grant Leave

There are four different types of paid leave that an employer is

obliged to grant to an employee annually. The reference to them
as being ‘paid’ is because these are days when the employee is
away from work or is not rendering services but the employer is
obliged to pay his as if he has performed under the contract of
employment on those days.

2.4.2 Leave with pay

Section 98 of the Employment Act obliges employers to

grant employees at least one and a-quarter days paid leave
per month. This type of leave in normally referred to as
‘vacation’ leave due to the fact that there is no requirement
for the employee to establish or prove the need therefore to
the employer before he or she take it. Prior to the
amendment of this section, employers were required to
grant their employees 15 days paid vacation leave per
annum after the first twelve (12) months of continuous
employment. The amendment did alter this situation in that
while the previous position of the law appeared to suggest
that an employee needed to have worked for at least one
year before he could be entitled to paid vacation leave, the
current position is such that an employee is entitled to be
granted one and a quarter days as leave with pay for every
month of continuous employment.

Section 98 further requires employees to take at least 8 days

vacation leave within 6 months of the following year, where
the leave was not utilized during the preceding year.
Balances of unutilized paid vacation leave days may be
accumulated for at most three years from the date on which
such days were first accumulated. At the expiration of the
 three years, all the leave days have to be taken. It is worth
noting that the paid vacation leave that accrues to employees
by virtue of this section are in addition to public holidays,
weekly rest periods and paid sick leave.

​2.4.2 ​Paid Public Holidays ​

In terms of section 99, all public holidays that are specified

in the second schedule to the Act are paid public holidays.
The word ‘paid’, just like in the case of vacation leave, is
used to denote the fact that the employee will be paid as
though he rendered services during that holiday. In terms of
the said schedule those paid public holidays are; New Year’s
Day, Good Friday, Easter Monday, President’s Day, Day
following President's Day, Botswana Day, 1st October and
Christmas Day. As far as the mining industry is concerned,
however, paid public holidays are those days that are
customarily recognized in the industry as paid public
holidays.

Q: What is the implication of saying that in the mining

industry, paid public holidays are those that are
recognized as such in the industry?

Q: Which days are ordinarily recognized in that

industry as paid public holidays?

Where a public holiday falls on a rest day, the day that

follows the rest day should become the paid public holiday,
provided that the day is not itself a rest day. If an employee
is made to work on a paid public holiday, he should be paid
double the wage that would have accrued to him had the day
been an ordinary working day. In addition to that, the
employee should then be granted a paid day of in lieu of the
day worked during the paid public holiday within 10 days
after the paid public holiday.

​2.4.3 ​Paid Sick Leave

In terms of section 100 of the Employment Act, an

employee should be paid for at least 14 days in any one year
of continuous employment while he is absent from work
due to illness. If the employee is not able to go to work due
to illness, he should inform the employer of the absence as
 soon as it is reasonably practical to do so. Where the
employee is absent for at least 24 hours, he should be in a
position to provide the employer will a medical certificate
that accounts for the entire period of the absence.

2.4.4 ​Maternity Leave

The remaining provisions, following the amendment of the

Employment Act, relating to employment of females do
specifically deal with entitlement to maternity leave. In
terms of section 113, an employee is obliged to give the
employer notice of her confinement by delivering a medical
certificate six weeks before confinement (giving birth)
indicating the fact of confinement. The employee should
then be immediately permitted to absent herself from work.
Further to this, female employees are mandated to inform
their employers of their date of confinement, after which
they are entitled to be absent from work for a further six (6)
weeks. Employers are not, under any circumstances,
permitted to require employees to report for duty within six
(6) weeks of confinement. What ordinarily obtains in
practice though is that women do choose when they can take
their maternity leave but that should not affect the minimum
period to which they are entitled to be on maternity leave.

The section also places an obligation on the employee to

inform the employer of the date of confinement within 21
days. This, the statute prescribes, should be done by way of
a written certificate signed by 2 medical officers. If the
certificate indicates that the employee is suffering from an
illness associated with her confinement, she should be given
8 weeks rest period following her confinement.

An employee who is absent on maternity leave is entitled to

be paid an allowance of at least 25% of her basic pay or 50t
for each day of her absence, which ever is greater. If an
employer gives an employee notice of intention to terminate
her contract of employment within three months prior to her
confinement and there is no just cause for such intention to
terminate the contract, the employer will not be absolve the
employer from paying maternity allowance to the employee.

As far as termination of contracts of employment during

maternity leave is concerned, section 121 provides that
where an employee is absent on maternity leave or such
other extended period as may, in the opinion of the
midwife, be necessary to enable the employee to recover
 fully, no notice of intention to terminate her contract of
employment may be served on him. Any notice given
during that period is null and void.

REMEDIES IN THE EVENT OF BREACH

1. ​Remedies of the Employee

1.1 Summary Termination

The common law position regarding summary termination is that

the employee can only terminate a contract of employment
without giving notice of his intention to do so by reason of the
employer’s conduct. This is ordinarily the case where the
employer’s conduct amounts to constructive dismissal. What
conduct amounts to constructive dismissal depends on the facts and
circumstances of each case. What is common cause, though, is that
the employer must have committed a significant breach going to
the root of the contract of employment. The most common
example of a situation where an employee may be constructively
dismissed is where the employer unilaterally varies the terms of
the contract.

Moremi v Westhynd Security [1998] BLR 287

Mogopudi v Ed-U-Comp [1995] BLR 505

The breach must show that the employer no longer intends to be

bound of one of the essential terms of the contract (renunciation).
The employee must, however, establish a causal link between his
termination of the contract of employment and the employer’s
breach. That is, the employee must prove that it was the breach of
contract by the employer that caused him to resign. While there is
no need for the employee to make a formal assertion that he is
treating the employer’s breach as repudiation, he must act in a way
that is demonstrably consistent with bringing the contract to an
end.

In Western Excavating (E.C.C) Ltd v Sharp (1978) 1 ICR 221

(CA), Lord Denning M.R had occasion to state that “the employee
must make up his mind soon after the conduct of which he
 complains; for, if he continues for any length of time without
leaving, he will lose his right to treat himself as discharged. He
will be regarded as having elected to affirm the contract.” at 226.

In terms of section 26(2) of the Employment Act, an employee

will be entitled to terminate a contract of employment summarily
where:

a) he is employed to work that is substantially different from

the one that he was originally engaged to perform

b) the employer attempts to transfer the employee to another

place of work where the possibility of transfer is not
provided for in the contract of employment

c) he is demoted

d) he is ill-treated by the employer or the employer’s

representatives

e) his continued employment exposes him and/or his

dependants to the risk of danger of a violent or medical
nature which the employee did not contract to accept in his
contract of employment.

Mogopudi v. Ed-U-Comp [1995] BLR 505

​Moyo v. Kgolagano College [1995] BLR 778

Moremi v. Westhynd Security [1998] BLR 287

Just like under the common law, the employee is expected, in

terms of subsection 3 of the same section, to exercise his right to
terminate the employment within a reasonable time after becoming
aware of the existence of the ground that justifies the termination.
There are, unfortunately, no guidelines on what a reasonable time
would be and indeed how such may be determined. That means,
therefore, that what amounts to a reasonable time will depend on
the facts and circumstances of a particular case.
​

1.2 Termination on Notice

As far as termination on notice is concerned, the common law

position is that subject to some exceptions, either of the parties to
contract of employment may terminate the contract at any time by
 giving notice to terminate the other. There does not need to exist
just cause for terminating a contract of employment on notice
under the common law. Once notice to terminate the contract has
been given by either party, it cannot be unilaterally withdrawn.

Riordan v War Office (1959) 1 WLR 1046

There are, however, situations where a contract of employment

cannot be terminated by merely serving a notice of intention to
terminate the contract on the other party. This is where the parties
have either entered into a fixed term contracts or where the
contract expressly limits the right of either party to terminate the
contract except for specified reasons. Fixed term contracts cannot
be terminated by notice before expiry. If an employer terminates a
fixed term contract before its expiration, he has to pay the
employee concerned a sum of money equivalent to that which the
employee would have earned had the contract remained intact until
the expiration thereof. Where the contract is terminated on notice,
the reason for the termination should be stated ex facie the
document through which the intention is communicated.

Pinky Omotoye v. Law Society of Botswana Case No. IC

​

The length of notice required on either side to terminate the

contract may be agreed upon expressly in the contract itself; it
may be fixed as a result of a term implied in the contract or it may
be fixed by a custom applicable to the particular industry on
occupation. In the absence of any such term, however, the law
requires a reasonable period of notice. What length this is depends
on upon all the circumstances of the relationship.

In terms of the Employment Act on the other hand, while either

party to a contract of employment may terminate the contract on
notice, the Industrial Court has held that the party terminating a
contract of employment under section 18 of the Employment Act
must have just cause for doing so. This is notwithstanding the fact
that the section does not expressly state that just cause is a
requirement for terminating on notice.

Motsumi v First National Bank of Botswana Ltd [1995] BLR

713

Q: What possible justifications can be provided for insisting

on a demonstration of just cause before either party to a
contract of employment terminates it?

As far as termination of contracts of employment during a

probationary period is concerned, however, just cause will be
presumed to exist and neither party will be required to give
reasons for termination.

Lekoba v Green Industrial Enterprises Corporation [1995] BLR

845
Kgetse v. Italtswana Construction Company [1995] BLR 855

A notice of intention to terminate a contract of employment

should be in writing and should be given at any time on a working
day. The notice may, however, be given orally where either party
is illiterate. Where the contract does not provide for the minimum
length of notice, the statute prescribes the minimum periods within
which a notice of intention to terminate the contract may be given.
In terms of section 18, where an employee’s contract provides for
payment of wages on a daily basis, the contract can be terminated
without giving notice. One day’s notice should be given where the
employee’s wages are payable over a period which exceeds one
day but is less than one week. Where the employee’s wages are
payable over a period that exceeds one week, the length of notice
should be equal to that period.

If, however, an employee’s wages are paid over a period that

exceeds one week but is less than two weeks and the employee has
been in continuous employment for two or more but less than five
years, the minimum length of notice should be two weeks.
Similarly, if the employee’s wages are payable over a period that
exceeds one week but is less than one month and that employee
has been in continuous employment for at least five but less than
ten years, the minimum length of notice should be one month.
Lastly, if n employee’s wages are payable over a period exceeding
a day and the employee has been in continuous employment for
ten or more years, the minimum length of notice should be six
weeks.

The above minimum periods prescribed by the statute

notwithstanding, if a contract of employment provides for longer
periods of notice than the ones stated above, the periods of notice
indicated in the contracts will take precedence.
Q: What do you think is the purpose of tying the notice period to
the wage period?

Section 19 of the Employment Act does provide for the possibility

of dispensing with the notice required by section 18. In terms of
that section, the giving of notice can only be dispensed with where
the party wishing to terminate the contract gives to the other party
a sum of money equal to the wage that the employee would have
earned during the minimum lawful period of the contract. Even in
a case where notice was initially given, either party may terminate
the contract without waiting for the period of notice to expire,
provided that the party terminating ha to pay to the other party a
sum of money equal to the wages that would have been due to the
employee during the balance of the notice period.

Q: When does the period of notice begin to run?

1.3 Suit for Wages

The common law position regarding the ability of an employee to

sue for wages is that an employee may sue the employer for wages
and other benefits due to him under the contract at the time of its
termination provided the former has fully and properly tendered
his services to the latter (employer). Since an employee will
generally not be entitled to be paid wages if he has refused to do
the work, the employee will not be entitled to sue for wages upon
dismissal if he has not rendered any services to the employer.

Bloch v Cohen 1933 TPD 100

​

Where the employer has benefited from he employee’s labour and

materials he will not be relieved of his obligation to pay wages
due up to the date of dismissal even where the employee is guilty
of serious. The rationale for this position is that to hold that an
employee who has rendered services should be disentitled to wages
will be in conflict with the principle of unjust enrichment.

Spencer v Gostelow 1920 AD 617

Where the employee deserts his service, however, he will be

 precluded from recovering any wages that may have been due to
him by virtue of him having rendered services before the
desertion.

Malan vs Van Der Merwe 1937 TPD 244,

The quantum of wages due will be determined in accordance with

the provisions of the contract and any applicable statute. In terms
of the Employment Act, an employee whose contract of
employment has been terminated may, in addition to claiming
wages that are due to him for partial performance of the contract,
claim severance payments.

In terms of section 27 of the Act, where a contract of employment

is terminated for any reason an employer may be required to pay
to the employee what is normally referred to as a severance
benefit. Not all employees qualify for severance payment. For an
employee to qualify for severance benefit, his must have been in
continuous employment for at least 60 months. Additionally, the
employee’s contract should not provide for payment of gratuity or
pension.

Mfaladi v Kalahari Resources Development Corporation [1996]

BLR 239

While the section does not expressly provided for pro rated
severance pay during the period beyond the initial 60 months, the
Industrial Court has held that once the employee has worked for
the first 60 months, he/she does not need to work for another 60
months to earn severance pay for the second period.

Ben & Anor v Green Industrial Enterprises Corporation (Pty)

Ltd [1995] BLR 859
GIEC v. Ben [1997] BLR 99 (CA)
Thono Pilane v Willy Kathurama & Associates Case No. IC
98/95

Section 28 outlines situations which, while they would ordinarily

be perceived as a change of employer, are deemed to be
continuous employment for purposes of earning severance pay.

1.4 Suit for Damages

In terms of the common law, where the employer wrongfully
terminates the contract before its expiry date (fixed term) or
without notice or payment in lieu thereof (indefinite contracts),
the employee may elect to treat that contract as cancelled and sue
for damages. As it is often said, damages do not take the form of a
windfall. The employee is entitled to sue for such money to cover
his loss as arises naturally from the breach and also for any loss,
which was reasonably foreseeable by the parties as being likely to
arise from the breach.

Normally this is loss of wages the employee would have earned

until the date when the contract would lawfully have ended. Since
it is never too clear when the contract would have come to an end
exactly, particularly with regard to indefinite period contracts, the
employee will be entitled to wages he would have earned up to the
date of expiry in the case of fixed term contracts and up to the
conclusion of notice period in the case of indefinite period
contracts. Using the period of notice as the measure of the
quantum of damages that would be due to an employee as damages
is premised on the assumption that the employer would have
terminated the contract at the earliest opportunity.

Damages are not recoverable for hurt feelings or for the manner in
which the dismissal took place. Damages can, however, be
recovered for loss of reputation in situations where it was
reasonably foreseeable that performance of the contract would
have provided an opportunity for the employee to enhance his
reputation by performing under the contract.

Clayton vs Oliver [1930] AC 209

Notwithstanding the fact that a dismissed employee ma y claim

damages for loss already suffered as well as for foreseeable loss,
the employee is still under a legal duty to mitigate his loss. He
must take, active steps to seek alternative employment. If he does
not do so, he will have any sum which he might reasonably have
earned had he performed his obligation of mitigating his loss
deducted from the damages awarded to him.

The fact that the employee is expected to mitigate his loss does not
oblige him/her to take any job that is offered to him. If the
alternative job carried a lower status or is markedly different from
the work he was doing under the breached contract, he does not
have to do it.
​Masepe v.Hi-Tech Cleaning Services (Pty) Ltd (supra)

However, if the work offered is comparable with the previous

employment and the employee refuses to accept it, his claim for
damages will be reduced by the amount that he would have earned
had he taken up the employment offered.

Isaacson v Walsh & Walsh (1903) 20 SC 569

Employee may also be entitled to consequential damages.

Consequential damages may take the form of relocation expenses,
loss of premise etc.

Willenburg v Pickstone and Bro Ltd 1922 CPD 13

The Employment Act is silent on whether or not an employee who

has been unfairly dismissed can sue the employer for damages for
breach of contract. The logical assumption that one may make,
however, is that an employee is not precluded from suing an
employer for damages for unfair dismissal. The possibility of
suing for damages will, however, depend on which Court is
hearing the dispute. As far as a matter being entertained by the
Industrial Court is concerned, in the place of a suit for damages,
an employee may sue for compensation instead. While the
previous provision on the payment of compensation limited the
amount of that compensation to a maximum of the employee’s six
(6) months salary, the position of the law has since changed, thus
giving the Court to determined the maximum amount of
compensation to be paid in each case.

In terms of section 24 of the Trade Disputes Act 2003, the Court

is authorized to order compensation that is commensurate with the
actual loss suffered by an employee who was wrongfully dismissed
and in so doing, the Court has to take into account the very same
considerations that are ordinarily taken into account in assessing
the quantum of damages payable in any other case of breach. To
that extent, it is doubtful whether the Court can still maintain that
what it is entitled to order in terms of the Act is not damages but
compensation. This is due to the fact that quite apart from the
terminology used, the assessment of either damages or
compensation may necessarily result in the same quantum being
ordered to be paid by the Court.
​
​1.5 ​Application for Reinstatement

The Courts have generally been reluctant to order an employer to

reinstate an employee, notwithstanding the fact that reinstatement
is provided for as one of the remedies available to an employee
who has been unfairly dismissed. This appears to have been
influenced by the early common law position regarding this
remedy, which was to the effect that employment contracts were
of a peculiarly personal nature that reputation of the contract by
one party automatically terminated it.

Prior to 1977, the common law position regarding the

enforceability of an order for reinstatement was that a contract of
employment was different from other contracts in a fundamental
breach of the contract left the innocent party with nothing to
enforce. The other reason which set the courts against granting
orders of specific performance was their reluctance to compel a
person to take another into employment.

Schierhout v Union Government 1926 AD 107

This position was, however, challenged by the appellate division

in the case of Steward Wrightson (Pty) Ltd v Thorpe 1977 (2) SA
943 (A), where the court held that a fundamental breach of an
employment contract left the innocent party with the choice of
either enforcing the contract or terminating it. The current
common law position as regards specific performance in
employment contracts appears to be thus:

a) ​there is no general principle that precludes an order of

specific performance in a contract of employment.

b) ​there are, however, weighty practical considerations e.g. the

destruction of mutual trust between employer and employee
Mkhize & Others v Tembisa Town Council & Anor (1987)
8 ILJ 256 (W)

a) where the remedy is appropriate, it should be granted.

Coin Security (Cape) v Vukani Guards & Allied Workers
Union 1989 (4) SA 234 at 241.

The statutory position does not appear to be any more flexible

than the common law. In fact, it can be argued that the statutory
 position is even more rigid in that it is only in the most extreme of
situations that the Industrial Court has ordered reinstatement of
wrongfully dismissed employees. This is notwithstanding the fact
that section 24 of the Trade Disputes Act empowers the Industrial
Court to grant orders of reinstatement in appropriate cases. The
justification against making orders of reinstatement appears to be
premised on the fact that the section further provides that
compulsory reinstatement will only be considered where the
termination is found to have been motivated by prohibited grounds
of terminating in terms of section 23 of the Employment Act.
Even where it is proved that the termination was premised on a
prohibited ground of termination, the Court will not automatically
order reinstatement. It still has to go further and examine the
relationship between the employee and the employer. That is, the
Court must determine whether or not the relationship is such that
the parties can still be expected to continue with the relationship
such that it is only when the relationship has not broken down
irrevocably that reinstatement may be ordered.

2. ​Remedies of the Employer

2.1 rdrcSummary Dismissal

Under the common law, for a summary dismissal to be held to be
valid, the court must be satisfied that the employee breached one
of the express or implied duties of the employment contract before
it deems the summary dismissal justified.

Ngongoma v Ministry of Education & Culture & ORS (1992) 13

ILJ 329 (d) at 335 A – B.

“the word “summary” in the context of the dismissal

of an employee or the termination of his service has a
well-recognized meaning and usage. Under the
common law, an employee may be dismissed.
Summarily only on the grounds of some misconduct
justifying such summary dismissal, and it is only
misconduct [of such a nature that it constitute a
breach of the contract of employment] so material
that it goes to the rat of the contract which amounts to
such misconduct”

In terms of section 26 of the Employment Act, the

employer can summarily terminate an employee’s contract
of employment where the employee is guilty of serious
misconduct. The section goes on to list instances of
misconduct and the list is, by no means, exhaustive.
Summary dismissal will be dealt with in more detail when
the various methods of terminating contracts of employment
 are considered hereunder.

Uyapo v. Tristar enterprises (Pty) Ltd [1995] BLR 747

2.2 Dismissal on Notice

The employer’s right to dismiss the employee on notice is similar

to that of the employee. As far as termination by notice is
concerned, the common law position is that subject to some
exceptions, either of the parties to contract of employment may
terminate the contract at any time by giving notice to terminate the
other. There does not need to exist just cause for terminating a
contract of employment on notice under the common law. Once
notice to terminate the contract has been given by either party, it
cannot be unilaterally without drawn.

Riordan v War Office (1959) 1 WLR 1046

There are, however, situations where a contract of employment

cannot be terminated by merely serving a notice of intention to
terminate the contract on the other party. This is where the parties
have either entered into a fixed term contract or where the contract
expressly limits the right of either party to terminate the contract
except for specified reasons. Fixed term contracts cannot be
terminated by notice before expiry. If an employer terminates a
fixed term contract before its expiration, he has to pay the
employee concerned a sum of money equivalent to that which the
employee would have earned had the contract remained intact until
the expiration thereof. Where the contract is terminated on notice,
the reason for the termination should be stated ex facie the
document through which the intention is communicated.

Pinky Omotoye v. Law Society of Botswana Case No. IC

​

The length of notice required on either side to terminate the

contract may be agreed upon expressly in the contract itself; it
may be fixed as a result of a term implied in the contract or it may
be fixed by a custom applicable to the particular industry on
occupation. In the absence of any such term, however, the law
requires a reasonable period of notice. What length this is depends
on upon all the circumstances of the relationship.

In terms of the Employment Act on the other hand, while either

party to a contract of employment may terminate the contract on
 notice, the Industrial Court has held that the party terminating a
contract of employment under section 18 of the Employment Act
must have just cause for doing so. This is notwithstanding the fact
that the section does not expressly state that just cause is a
requirement for terminating on notice.

Motsumi v First National Bank of Botswana Ltd [1995] BLR

713

Q: What possible justifications can be provided for insisting

on a demonstration of just cause before either party to a
contract of employment terminates it?

As far as termination of contracts of employment during a

probationary period is concerned, however, just cause will be
presumed to exist and neither party will be required to give
reasons for termination.

Lekoba v Green Industrial Enterprises Corporation [1995] BLR

845
Kgetse v. Italtswana Construction Company [1995] BLR 855

A notice of intention to terminate a contract of employment

should be in writing and should be given at any time on a working
day. The notice may, however, be given orally where either party
is illiterate. Where the contract does not provide for the minimum
length of notice, the statute prescribes the minimum periods within
which a notice of intention to terminate the contract may be given.
In terms of section 18, where an employee’s contract provides for
payment of wages on a daily basis, the contract can be terminated
without giving notice. One day’s notice should be given where the
employee’s wages are payable over a period which exceeds one
day but is less than one week. Where the employee’s wages are
payable over a period that exceeds one week, the length of notice
should be equal to that period.

If, however, an employee’s wages are paid over a period that

exceeds one week but is less than two weeks and the employee has
been in continuous employment for two or more but less than five
years, the minimum length of notice should be two weeks.
Similarly, if the employee’s wages are payable over a period that
exceeds one week but is less than one month and that employee
has been in continuous employment for at least five but less than
 ten years, the minimum length of notice should be one month.
Lastly, if n employee’s wages are payable over a period exceeding
a day and the employee has been in continuous employment for
ten or more years, the minimum length of notice should be six
weeks.

The above minimum periods prescribed by the statute

notwithstanding, if a contract of employment provides for longer
periods of notice than the ones stated above, the periods of notice
indicated in the contracts will take precedence.

Q: What do you think is the purpose of tying the notice period to

the wage period?

Section 19 of the Employment Act does provide for the possibility

of dispensing with the notice required by section 18. In terms of
that section, the giving of notice can only be dispensed with where
the party wishing to terminate the contract gives to the other party
a sum of money equal to the wage that the employee would have
earned during the minimum lawful period of the contract. Even in
a case where notice was initially given, either party may terminate
the contract without waiting for the period of notice to expire,
provided that the party terminating ha to pay to the other party a
sum of money equal to the wages that would have been due to the
employee during the balance of the notice period.

Q: When does the period of notice begin to run?

TERMINATION OF CONTRACTS OF EMPLOYMENT

There are several ways in which a contract of employment may come to an end
both under the common law and under the Employment Act.

1.1 Effluxion of time/Performance of a specifies task

A fixed term contract comes to an end at the expiration of that

term. No notice is required to bring about the termination. The
termination occurs ipso jure). R v Bhana 1941 SR 186. Similarly,
a contract for a specified task/piece of work comes to an end when
 the specified task is completed. It is also unnecessary for any party
to give notice of termination. Bon Accord Irrigation Board v
Braine 1923 AD 480

It is, however, possible for the parties to tacitly renew the contract
by their conduct. Where a contract is tacitly renewed by the
conduct of the parties thereto, there as a rebuttable presumption
that the new contract is on the same terms as the as the original
contract save that it will be deemed to be a contract for an
indefinite period of time.
​
Mampane and Others v. Bolux Milling (Pty) Ltd (supra)

1.2 Mutual Agreement

A contract between employer and employee may be ended by

agreement. This is the agreement by which the parties release each
other from their mutual obligations. The courts have, however;
shown some reluctance to find that there is a genuine bilateral
termination of the contract because such agreement has the result
of depriving the employee of statutory rights to complain of unfair
dismissal or to claim redundancy compensation.

Mc Farlane v Crooke 1951 (3) SA 263

1.3 Repudiation

As indicated above, act or omission that constitutes a material

breach of contract by one party to it, entitled the other party to
regard the contract as cancelled and sue for damages. An employee
may terminate a contract if his employer fails to carry out any of
the implied undertakings/duties and the employer may terminate if
the employee does not conform to his implied guarantees. Whether
an act/omission constitutes a material breach is a matter of fact in
each case.

A repudiation by either party whether express or implied will give

the other party the right to terminate the contract or to sue for
specific performance.

Stag Packings v National Union of Textile Workers (supra)

Examples of cases justifying termination on the grounds of

repudiation include:

i) ​gross negligence
 ​Wallance v Rand Daily Mail 1917 AD 482

ii) incompetence to a serious degree

Negro v Continental Spinning & Knitting Mills
1954 (2) SA 203 (w)

iii) deliberate absenteeism or failure to work

Schneier & London Ltd v Bennett 1927 TPD 346

iv) drunkenness
Schneier & London Ltd v Bennett (supra)

1.4 Death of Employer

The death of the employee automatically brings the contract of

employment to an end, and the executor of the estate of the
deceased employee may claim wages and accrued leave pay, where
this is statutorily payable, up to the time the employee
discontinued working.

The death of the employer does not, however, automatically

terminate the employment contracts of his employees. The
employer’s estate may, in some instances, become the employer.

Boyd v Stuttaford 1910 AD 114

Dissolution/insolvency of employer

Insolvency refers to a state whereby one’s liabilities exceed his

assets. This state is ordinarily determined on application to a court
of law and once a pronouncement confirming the status is made,
the court then has to make a sequestration order. A sequestration
order has the effect of vesting the insolvent’s estate in the trustee
until the insolvent is rehabilitated.

There is no express provision in over Insolvency Act that deals

with the position of employees on the insolvency of the employer.
Sec 85(3) & (4) Insolvency Act do, however, appear to shed some
light on this aspect and their essence is that the administrator of
the insolvent person’s estate may retain employees that were
engaged prior to the insolvency.

1.5 Termination on Notice ​

Where there is an express provision on notice in the contract of

employment, it must be complied with. If there’s no express
provision, the notice period must be reasonable. Reasonableness
may take into account but will be influenced primarily by the
periodicity of the payment of remuneration. Therefore, subject to
the provisions of the Employment Act on the giving of notice and
further subject special practices obtaining in particular
trades/industries, reasonable notice will be:

i) ​if the employee is paid monthly – one month’s notice

to be given on the 1st day of the month. ​

​T iopaizi v Bulawayo Municipality 1923 AD 317

ii) if the employee is paid weekly, one week’s notice

Beg Bie v Hartmann 1925 TPD 453
​

iii) if employee is engaged at a daily wage but paid

weekly or monthly – one day’s notice
Central SA Railways v Cooke 1904 TS 553
​

Iv) ​a casual or daily labourer – no notice

Pretoria City Council v Ministry of Labour 1943

TPD 238.
​

​(v) ​yearly contract – 3 months notice

​T iopaizi v Bulawayo Munic (supra)

Q: ​To what extent are the notice periods stated above

consistent with the provisions of the Employment Act?

Notice need not be in writing; verbal notice must be given

preferably in the presence of witnesses. Notice should normally be
given to the employee personally but if he is been absent from the
workplace for some time, a letter sent to his place of residence by
registered post would have to be accepted as notice (suffice). On
the other hand, an employer who is not readily accessible to his
employees would have to accept notice delivered verbally or in
writing to a works manager or senior executive. Notice must be
given at the beginning of a pay period. For example, notice given
on January 15 to a monthly paid employee would not start running
until the beginning of February
Tiopaizi v Bulawayo Munic (supra)
 Notice may be given during periods of annual or sick leave.
Carstens v Ferreira 1954 (4) SA 704 (J)

Notice must not be conditional. A statement to the effect that “if

your work does not improve you must leave next week” cannot
constitute notice. Instead, it must be categorical and unequivocal.
Therefore, asking an employee if he would like to resign at the
end of the week is not tantamount to notice. Notice may, however,
be waived but only by the mutual consent of the parties, and the
courts will generally not accept the existence of this waiver unless
it can be positively proved.

Macfarlane v Crooke 1951 (3) SA 256 (c)

1.6 Supervening Impossibility of Performance

If either party to a contract of employment becomes either

permanently unable to perform his obligations under the contract
or unable to perform his obligations for a period which is
unreasonable as far as the other party is concerned, the innocent
party is entitled to terminate the contract on the ground of such
non-performance.
​

Schlengemann v Meyer, Bridgens & Co 1920 CPD 494

The doctrine of fictional fulfillment may, at times, be applied if

the party who seeks to terminate the contract on the ground of his
own liability to perform brought about the impossibility.

Yodiaken v. Anghern & Piel 1914 TPD 254

1.7 ​Termination for Misconduct

In terms of section 26 of the Employment Act, an employee may

be summarily dismissed without the need to give notice or to pay
him/her in lieu thereof where he is guilty of serious misconduct.
What is worth noting at this point is that this section applies to
cases of serious misconduct only and not mere misconduct.
Therefore, the employer must give notice in the case of mere
misconduct.
Motsumi v First National Bank (supra)

Notwithstanding the fact that the Employment Act does provide a

list of the types of conduct that would qualify as serious
misconduct, whether or not a particular act of misconduct is
serious enough to warrant summary dismissal is a question of fact
in each case.

Even though the Employment Act does not prescribe the

procedure to be followed before an employee can be summarily
dismissed for serious misconduct, the Industrial Court has held
that rules of natural justice should be observed before the dismissal
can be held to be fair. The fact that a serious misconduct is proved
to have been committed does not justify the dismissal of an
employee before that employee is given a hearing (audi alteram
partem). The hearing itself should not violate the nemo iudex in
causa sua.

The purposes of conducting a hearing before dismissing an

employee has been held to be to ensure not only that the
substantive offence has been committed but that it was committed
by the employee charged and that the employee has been given an
opportunity to defend himself.

The following fact must invariably be established before

proceeding to determine whether the dismissal was with or without
just cause:

i) ​has a dismissal taken place”

The dismissal must be as a result of the employee’s serious

misconduct. The dismissal may be verbal or in writing and
it must be unequivocal.

In Mfaladi v Kgalagadi Resources Management (supra) the

employee was given a letter of dismissal and sent on a trip
to do some work the same day. The Industrial Court held
this not to amount to dismissal.

Since the employee’s misconduct does not ipso facto

terminate the contract of employment, the employer must
exercise his right to terminate with a reasonable time after
 the misconduct. That is required by the proviso to section
26(1).

ii) ​is the complainant qualified to make a claim

The complainant must be a qualified person in terms of the

Employment Act. Since the Employment Act governs only
contracts of employment, only employees as defined in
section 2 of the Act are qualified to rely on section 26.

The complaint must be reported to the nearest labour officer

within 14days of learning of the dismissal.

​Mmolawa v. Lobatse Clay Works [1996] BLR

1 ​

iii) ​is the dismissal with or without just cause

Although the act does not prescribe any procedure to be

followed by the employer before dismissing the employee
for misconduct, the rules of natural justice dictate that in
labour or industrial relations, when dealing with a case of
dismissal for misconduct;

a) ​there must be a valid and fair reason for such

dismissal (substantive fairness so-called)

b) ​a fair procedure must have been followed by the

employer prior to dismissing the employee
(procedural fairness)

​SUSBSTANTIVE FAIRNESS

This goes to the reason for the dismissal and the validity thereof
and it means that an act of misconduct must, first and foremost,
have been committed and that the particular employee who has
been charged is the one who committed the alleged misconduct in
fact.
This effectively imposes an obligation on the employer to carry
out a proper investigation into the allegations against the employee
so that he is in a position that enables him to adduce evidence that
links the employee with the offence. In the absence of any such
proof/evidence, the reason for the dismissal cannot be valid.

The reason for the dismissal must also be fair. That is, the
dismissal must be justified according to the requirements of
natural justice (equity), particularly the requirement of
reasonableness such that the employee should only be dismissed
where the employer could not reasonably be expected to take any
other course.

​P ROCEDURAL FAIRNESS

This basically involves the examination of the procedure followed

by the employer prior to dismissing the employee. The audi
alteram partem rule requires employers to act judicially before
imposing a disciplinary penalty on the employee in order to
eliminate arbitrary of impulsive actions against employees.

The Industrial Court has laid down the cardinal requirements for a
fair disciplinary enquiry as follows:
​

i) ​T he hearing must precede the decision to dismiss. A hearing

that is held after the decision to dismiss has been made is
invalid. This seeks to ensure that the employee has an
opportunity to rebut the charge / challenge the accusations
against him before an adverse decision is taken

ii) ​T he accused employee must be given reasonable notice of

the time and place of the disciplinary enquiry.

iii) ​T he employee must be informed of the charges against him

in advance. This seeks to ensure that the employee
adequately prepares his defense.

iv) ​T he employee just be given the option of being assisted or

represented at the enquiry be a co-employee of his choice.
Representation by a trade union official or lawyer is,
however, not a right but a privilege that can be extended by
the employer, unless there is an express agreement that
confers that right on employees.
v) ​At the hearing, the employer should place sufficient
evidence before the disciplinary panel to prove that the
alleged misconduct has been committed and that its been
committed by the employee charged.

vi) ​T he employee must be allowed to question witnesses who

testify against him.

vii) ​T he employee must be informed of his right to give

evidence personally and/or to call witnesses on his behalf.

viii) ​In the event of being found guilty of the alleged

misconduct, the employee must be given a further
opportunity of putting forward facts in mitigation before a
sanction is decided on.

Selepe v. Barclays bank of Botswana [1996] BLR 380

ix) ​If found guilty and after a sanction has been imposed, the
employee should be informed of his right to appeal against
such finding and/or sanction

x) ​T he enquiry should be conducted in good faith.

Phirinyana v Spie Batignolles [1995] BLR 1

Though the holding of a disciplinary enquiry appears to be

indispensable, there are situations where an employer’s failure to
hold such may be condoned:

a) ​Where the circumstances are such that the employer could

not reasonably have been expected to do so. For example,
where dismissal is necessary to protect lives or property or
where the employee has, by his conduct, waived his right to
a hearing by refusing to attend the enquiry, abusing the
employer at the enquiry etc.

b) ​Where the court is satisfied, after considering the merits of

the case that a hearing would not have altered the decision
 to dismiss.

The above position of the law as espoused by the Industrial court

notwithstanding, the court of appeal held, in Rabana v Botswana
Housing corporation [1997] BLR 106 (CA), that the audi
alteram partem rule does not entail the granting an oral hearing to
an employee.

Q: What do you think is the practical significance of the Rabana

decision on the right to a hearing?

1.8 ​Termination for Operational Reasons

Termination of contracts of employment for operational reasons

may result from redundancy of the positions held by the
employees to be terminated because, owing to the financial
situation of the company, there arises a need to reduce the size of
the workforce.

Section 25 of the Employment Act gives employers the right to

terminate employment contracts of their employees for economic,
technical or structural reasons. While the Employment Act does
not distinguish between redundancy and retrenchment and instead
uses the term redundancy to also cover cases of retrenchment and
vice versa, there is a distinction between these 2 terms/concepts.
Retrenchment refers to a situation ​where employees become
superfluous due to an economic downturn while redundancy may
not necessarily have anything to do with the financial situation of
the company but the employees nonetheless become redundant as a
result of, for example, the introduction of new technology or re-
organization.

The other difference between dismissal on the ground of the

employer’s economic needs and redundancy in the fact that where
dismissal is premised on economic grounds, the employees
affected are economically active and may have rendered
impeccable service to the employer.

An employer’s decision to retrench workers on purely economic

reasons is an exclusive managerial prerogative and the court will
 not normally interfere with it. The argument here is that managers
are entitled to manage and control their business as they deem fit
in what they perceive to be in the best interests of the business. If
the employer forms an intention to retrench employees, however,
he must forthwith notify them of such possibility. The employer
must also notify the Commissioner of Labour

The employer must then consult with the employees or their

representatives at the earliest opportunity.

Q: Why is retrenchment a consultative issue?

The purpose of consultation is:

i) ​for the parties to seek ways of avoiding or adverting the

need to retrench workers

ii) ​for parties to consult on a fair selection criteria (for

retrenchment) where retrenchment is unavoidable and to
consult on ways of alleviating the hardships caused by the
retrenchment, for example, payment of a reasonable
severance package, possible alternative employment
elsewhere etc.

Employees should be given a fair chance to participate

meaningfully in the discussions. They should also be invited to
propose reasonable alternatives to retrenchment. As far as matters
of retrenchment are concerned, it is the duty of the employer to
“consult” and not necessarily to “negotiate”. If after fair and
adequate consultations the parties still cannot reach an agreement,
the employer will be free to make the ultimate decision.

It is a requirement of the law that even where the employer makes

the ultimate decision, he must act fairly. Fairness in this context
goes beyond the bona fides of the employer and the commercial
justification for the decision to terminate employees. In
determining whether the employer acted fairly, the question is
whether termination of employment was the ONLY reasonable
option in the circumstances
 The normal and generally accepted selection criterion is the LIFO
principle. The employer can in some situation disregard this
principle and instead take into account the need for the efficient
operation of the undertaking as well as the ability, experience,
skill and qualifications of the employees concerned to determine
who goes and who stays.

​Mokaya v Morteo Condotte [1994] BLR 394

​T lhoiwa v Tswana Construction [1996] BLR 461

​P hale Phale & Others v. J. Haskins & Sons (Pty) Ltd, Case
No. IC