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Citation: 2008 (1) BLR 414 (IC)
Court: Industrial Court, Gaborone
Case No: Ic 345 Of 2008
Judge: Ebrahim-Carstens J
Judgment Date: June 17, 2008
B Nthoi for the applicants. D Diba for the respondent.
Employment - Retrenchment - Compensation for unfair retrenchment - Urgent application for - Employment - Retrenchment - Compensation for unfair retrenchment - Grounds for urgency - Proceedings being launched approximately two months after receipt of letters of retrenchment and three weeks after   dispute having been mediated - No acceptable explanation being offered for delay in launching proceedings - Facts not disclosing urgency - Trade Disputes Act (Cap 48:02), s 20(5).

Approximately two months after receiving their letters of retrenchment and three weeks after the dispute had been mediated, the applicants   approached the Industrial Court, as a matter of urgency, for compensation for their allegedly unfair retrenchment. The facts upon which the applicants relied as constituting urgency were that the respondent was shortly to be closing business in Botswana and relocating to South Africa.
Held: (1) No acceptable explanation had been offered for the applicants'
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  delay in launching the proceedings. The applicants had themselves created any urgency that might have existed.
(2) Nor had the applicants made full disclosure in their papers.
Case Information
Cases referred to:
Basebi and Others v Puma Botswana (Pty) Ltd [2006] 1 B.L.R. 662, IC
  Big Game Development (Botswana) (Pty) Ltd v De Kock [1997] B.L.R. 301
Bogosi v Price & Pride (IC 65/98), unreported
Boswabatau and Others v The Goodies (Pty) Ltd (IC 217/99), unreported
Makome Syndicate and Others v Masowe Syndicate and Others [2002] 1 B.L.R. 442
  Moyo v Mega Brick (Pty) Ltd (IC 83/05), unreported
Urgent application for compensation for unfair retrenchment. The facts are sufficiently stated in the judgment.
  B Nthoi for the applicants.
D Diba for the respondent.
The applicants in this case launched an urgent application on 14 May 2008 for payment of six months wages as compensation for alleged unfair   retrenchment. For some reason, the matter was only brought to my attention in the last week of May when it was first set down for hearing before me on 30 May 2008. The applicants appeared in person on that date, Mr Makgekgenene explaining that they delayed in their application as they had to wait for the certificate from labour; and conceding that the affidavits in support were not explicit enough. Karabo Mogale an accountant appeared   for the respondent requesting a week's adjournment in order to file answering papers.
On 6 May 2008 Mr Nthoi appeared for the applicants whilst Mr Diba appeared for the respondent; the respondent having filed no answering affidavit but strangely enough, a statement of defence. Despite the week long adjournment neither party filed any supplementary or other affidavits even   though it was apparent that the papers before me were extremely thin on the facts. Attorneys for the parties requested a postponement to the following week, undertaking to file an agreed statement of facts and heads of argument, indicating that they were prepared to argue the matter on the papers. I accordingly proceeded to hear the application on 12 May 2008 on the papers before me.
  Urgent applications
As Nganunu J (as he then was) noted in Big Game Development (Botswana) (Pty) Ltd v De Kock [1997] B.L.R. 301 at p 305E, an urgent application:
    '... upsets the orderly despatch of court business. Constant and persistent
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    disturbance of court and judges' schedules results in chaos.... The advantage ... is to have their cases heard before the time they could have otherwise been   heard if they follow the ordinary rules. This may be because the courts are congested, but jumping the queue, as it were, is not conducive to proper disposal of other cases nor fair to opponents....'
Urgent applications are therefore no ordinary remedy and parties moving same must come to court in good faith, making full disclosure of the facts   upon which they rely for relief. Section 20(5) of the Trade Disputes Act (Cap 48:02) enjoins an applicant who brings an urgent application to set forth (1) in the affidavit, explicitly the circumstances which he avers render the matter urgent, and (2) the reasons why he claims he could not be afforded substantial redress at a mediation by the Commissioner in due course. It is trite law that both limbs of s 20(5) above must be satisfied, see   the case of Basebi and Others v Puma Botswana (Pty) Ltd [2006] 1 B.L.R. 662, IC.
The circumstances which render the matter urgent
This application was launched by way of notice of motion with a founding affidavit by Boitumelo Moseje and supporting affidavit of Kenyafetse   Makgenene, the basis for the urgency set out in the certificate of urgency is stated as follows as:
    '1.1    The company is closing on the 30th May 2008. At our mediation hearing held on the 23rd April 2008, Lebona Tsotetsi, human resources vice president confirmed the closure date.  
    1.2    The human resources vice president also stated the company is relocating to South Africa.'
Section 20(5) requires that an applicant 'shall set forth in the affidavit, explicitly the circumstances which he avers render the matter urgent' (my   emphasis). The grounds for urgency should therefore be stated in the sworn affidavit and not the certificate. Since the certificate of urgency is sworn, I shall use my discretion to accept it as a supplementary affidavit.
It is clear from the affidavits and the agreed facts that the applicants received notices of retrenchment as far back as 18 March 2008 that the company was closing down on 31 March 2008 as it had decided to 'terminate the Botswana operations until further notice.' The retrenchment   letters also state that the effective date of retrenchment shall be 31 March 2008.
Despite the notices of retrenchment received on 18 March 2008, the applicants only reported their alleged unfair retrenchment to the labour department on 31 March 2008; attended a mediation hearing on 23 April and only filed the urgent application on 11 May 2008, almost two months after receiving notice that respondent was shutting down. Mr Makgekgenene had initially explained that they delayed in their application as they had   to wait for the referral certificate, whilst Mr Nthoi explained that the delay was caused by negotiations to move the matter through arbitration. I plainly cannot accept the first explanation since urgent applications do not require any certificate from the mediator, and as it is quite clear that the applicants in any event obtained a certificate on 23 April 2008, but only filed the urgent
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  application three weeks later on 14 May 2008. As regards the second explanation, there is no evidence that this matter was referred to arbitration, indeed the record shows that this matter was mediated on 23 April 2008 by T T Koketso, who even went to the further trouble of preparing a savingram to the court on 23 April in support of the applicants' case for urgency.
  The alleged grounds for urgency in this case existed as early as 18 March 2003 and at the very latest on 23 April 2008. The application was only filed in mid May 2008. The applicants have been aware of their alleged trade dispute since mid March 2008 and were not diligent enough to pursue it. There is no acceptable explanation for the delay. A court must guard against self created urgency, see the case of Makome Syndicate and   Others v Masowe Syndicate and Others [2002] 1 B.L.R. 442.
Substantial redress in due course
Section 20(5) requires that an applicant in an urgent application must set out the reasons why he claims he could not be afforded substantial   redress 'at a mediation by the Commissioner in due course'. The applicants having created the urgency and having failed to satisfy the court on the aspect of urgency, I need not say much about this second limb of the requirement for urgent applications. Besides, this matter has already been mediated. I have in previous matters of this nature raised the question whether the reading of this section means that an urgent application is not   possible once a matter has already been mediated since the new Act came into force removing the old two tier mediation system. I do not believe that the legislature could have intended such a reading which in my view gives rise to a clear absurdity. The similar High Court provision, Order 12 rule 13 of the Rules of the High Court (Cap 04:02) (Sub Leg) speaks of the reasons why an applicant claims he could not be afforded substantial   redress at 'a hearing in due course'. This to me should be the appropriate reading of s 20(5) of the Trade Disputes Act.
The applicants are complaining only of the alleged procedural unfairness of their retrenchments. They complain there was no consultation and they were given short notice. They fear that they may not obtain redress or recover the compensation they claim since the respondent is relocating. The   latter argues that the retrenchments were not unfair since s 25 of the Employment Act (Cap 47:01) deals with retrenchments only and does not apply to a complete shutdown or closure of business, since adherence to the retrenchment guidelines would make no difference to the final outcome in any event. Furthermore, that the applicants never challenged the procedural fairness of the retrenchment exercise in the first instance, all they required was a better package which is an issue for negotiation and not consultation.
  The Industrial Court, in its application of International Labour Standards, in particular the ILO Termination of Employment Convention C158 of 1954, together with Recommendation 119 of 1963 has held in several cases that s 25 of the Employment Act is applicable to closure of a business in so far as procedural fairness goes. See my judgment in the matter of Bogosi v Price & Pride (IC 65/98), unreported and the case of Boswabatau and Others v The Goodies (Pty) Ltd (IC 217/99), unreported.
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Unlike other jurisdictions there is no provision or formula in our law for a retrenchment 'package'. See the case of Moyo v Mega Brick (Pty) Ltd (IC   83/05), unreported. Therefore in the absence of any provision in the recognition agreement or conditions of service, an employee's recourse is to either negotiate a package, or to approach the court for a compensation award for unfair retrenchment. If the retrenchment is found to be fair; no compensation would be payable and even a long serving employee would be left cap in hand without a 'package'.  
Perhaps the most damaging to this application is the inability of the applicants to make full disclosure. Having stated in their affidavits that 'consultation was never being [sic] done'; the agreed facts signed on their behalf state at para 1(c):  
    'The parties held consultation concerning the closure of the business on the 18th and 19th March 2008. Management made a proposal to pay one (1) month in lieu of notice and equivalent of one week wages for every year worked, the applicants on the other hand proposed that they be paid three (3) months wages.'  
The record further shows that following such consultations, the applicants on 19 March 2008, together with 35 other employees (who incidentally have not bothered to pursue any proceedings against the respondent) signed the following:
    'Proposal For Three Months Notice Pay.  
    Looking at the fact that we already have commitments with regard to the following:
    (a)    Loans from Banks
    (b)    Rentals
    (c)    School fees
    (d)    New employees who resigned from other jobs hoping for better opportunities with UNBB.  
    We kindly request a three month notice payment to cover for the above while we are still looking for alternative jobs.'
This proposal was rejected by management on the very same day and yet the applicants took no action. This proposal clearly indicates that the only issue at the material time was the payment of three months' notice or the negotiation of an enhanced package and not the fairness or   otherwise of the retrenchments. The applicants also failed to reveal in their founding papers that they were paid a month's wages for April 2008 in lieu (although notice had already commenced running on 18 March 2008) and a week's wages per year of service. This means they effectively received six week's notice although the statutory requirement is a month's notice. The original claim being for notice/package, it is unlikely the   applicants have a case for compensation.
Mr Nthoi conceded that the applicants in effect therefore received a month and a half's notice and a weeks wages, meaning that they effectively received three weeks pay as a 'package'. This bearing in mind that the first applicant had barely served two months having commenced employment
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  on 8 February 2008, and the second applicant completed just over a year's service.
In all the circumstances, the court therefore finds that this application cannot succeed. As regards the substantive merits of their claims for a 'package', the applicants would be best advised to take the advice of their counsel.
  This application is therefore dismissed. No order is made as to costs.
We agree on the facts:
E O Modise
Nominated Member (Union)
M Mogami
  Nominated Member (BOCCIM)

2008 (1) BLR p419