BTO ordered to pay former employee over P1 million

Botswana Tourism Organisation (BTO) has been ordered to pay its former Marketing Manager over P1 million for unlawful termination of contract.

BTO had appealed against the judgment of High Court Judge Omphemetse Motumise in which Obenne Mbaakanyi’s termination of employment by BTO was declared unlawful and, consequently, BTO ordered to pay Mbaakanyi the sum of P906 605.05 for unlawful termination; P311 223.90 for loss of gratuity; P87 204 for leave pay, plus interest and costs.

Mbaakanyi was employed by the appellant in January 2017 as a Marketing Manager for a three-year fixed term. The period was renewable unless otherwise terminated for lawful reasons.

On 19 February 2018 BTO issued Mbaakanyi a letter of termination of her employment. Aggrieved by the termination of her contract of employment, Mbaakanyi instituted an action in the High Court against BTO for relief, that

the termination was unlawful and wrongful.

She sought payment of (a) P1 046 449.20 for the unexpired portion of her contract period of three years; interest; P313 934.76 for damages for loss of gratuity; P118 914.67 for accrued annual leave and interest on the amounts so claimed.

BTO defended the action and contended that the termination was in accordance with the terms of the contract, sub-clauses 10.1 and 10.3, in particular.

It contended further that Mbaakanyi had been paid her terminal benefits in full and therefore no further claims accrued to her.

The appeals court upheld the decision of the high court, arguing that the lower court was therefore correct that 'any reason under clause 19.4.1 of the Conditions of Service of BTO must meet the yardstick of the best interest of the defendant's operations.

“Rhetorically one wonders precisely, what were the reasons? There were none and the High Court, correctly, so found. To that end, the appellant failed to comply with clause 19.4.1.

“The respondent was not afforded the opportunity to make any representation. The High Court was thus correct that the appellant 'departed from the principles of harmony underpinning the contract which required a fair procedure in terminating the contract”, the panel of three judges, found.

Accordingly, there is no merit in the contention that the contract clauses relied upon by the appellant had to be read in isolation, the appeals court said, adding that the finding of the High Court was correct in concluding that the contract was wrongfully terminated.

In its reasoning regarding the unlawful termination, the High Court considered the relevant provisions of the contract and the conditions of service and trawled through case law.

The lower court relied on the common law principles and rules laid down by statute, in this case, section 17 of the Employment Act. The court then held that the appropriate measure of damages was the amount the employee would have earned during the balance of the contract less any benefits already paid by the employer and income earned by the employee from alternative employment in mitigation of damages, the onus on the latter resting on the appellant, which the court said, was not discharged.

In its grounds of appeal, BTO had raised a variety of grounds most of which are directed at the application of the law and the interpretation of the contract.

Said the court of Appeal “suffice it to mention that the grounds relate to the issues determined a quo, including the interpretation of the contract in question”. It submitted that the High Court interpreted the contract without regard to considerations of equity.

In essence, the appellant's case was that, based on a fixed contract of employment terminable on three months' notice by the terminating party, it (appellant) was entitled to terminate the contract of the respondent without tendering reasons.

“As the High Court correctly pronounced, the contract must be interpreted - having regard to the language used given its ordinary grammatical meaning and words must be interpreted in the context of other provisions in the document - here meaning, the conditions of service.”