Govt 2, Workers 0

Court of Appeal Judge President Ian Kirby this week shattered hopes of about 500 former government essential services employees by upholding an Industrial Court ruling that their participation in the 2011 industrial action was illegal.

The mass public sector strike over wage demands escalated to a point that government decided to sack health workers in “essential” services who defied a court order to return to work. Some were later reemployed while others are roaming the street. Trade Unions were appealing Industrial Court Judge, Tebogo Maruping’s 2011 ruling that declared the strike by public sector employees illegal.

A panel of five judges dismissed this appeal. Reading a summary of the 74 paged judgement Kirby first declared that this was Botswana’s first public strike and mistakes were made by both parties. The judgement reads in part: This was a watershed event in the history of Botswana, because never before had the operations of the public service been disrupted in this way by strike action.

The Judge president stated that generally, striking by essential services workers is prohibited but Section 45 of the Trade Dispute Act (TDA) makes some exceptions as some may go on a strike following an application to the Minister of Labour and Homes Affairs. While some sections of the TDA forbid and criminalise strikes by essential services employees, Section 45 specifically authorises such strikes if certain conditions are met such as applying to the Minister.

But according to him in this case no such application was made. “Instead of making an application under Section 45 of the Trade Dispute Act, it was made generally to a salaries negotiation deadlock in respect of the whole public service.” Kirby noted that Maruping was correct to find that the strike was illegal.

The respondents in the case, the Director of Public Service Management (DPSM) and the Attorney General had argued that the strike by essential service was lawful because among other things it was not preceded by a secret ballot as required by the TDA.

Reached for comment after the judgment trade unions lawyer Mboki Chilisa said he was extremely disappointed. He said the judgement was overly technical and that the reasons advanced were flawed. For his part Parks Tafa of Collins Newman & Co who was representing government said they were pleased with the outcome but stressed that in such cases there is no real winner. “Because such case should be settled by the concerned parties and not find their way into court.”

All things being equal though the five judges extensively quoted the TDA they also found that the Act contains contradictory and confusing provisions, and that the sections of the Public Service Act dealing with industrial action are also not fully aligned with the TDA. “It is important that the lawmakers should look urgently at this legislation and recast it to reflect unambiguously what it is that they intend to achieve,” said Kirby.

Meanwhile the judges are next week expected to make another judgement where government is appealing Justice Key Dingake of the High Court ruling that all dismissed essential service employees be reinstated. But there are some who feel that government will succeed with their appeal following Wednesday’s judgement. However Kirby dismissed these claims saying Wednesday’s judgement does not concern the dismissal case.