Industrial Court of the Republic of Botswana, Sebako and Another v. Shona Gas, undated, 2006 (1) BLR 86 (IC)
Establishment of a jurisprudential principle based on international law
Dismissal for serious misconduct /Claim of unfair dismissal /Consideration of whether it was necessary for employer to hold a disciplinary enquiry before dismissal/ Establishment of jurisprudential principle based on international law
The first claimant worked as a driver who delivered gas cylinders to customers for Shona Gas and the second claimant was the first claimant’s assistant. The claimants alleged that they had been unfairly dismissed because their manager suspected they had stolen a gas cylinder during a delivery run, although the manager had not investigated, or proven, that it was the claimants who had committed the theft.
In determining the unfair dismissal claims, the Court stated that the Employment Act did not set out a process that an employer must follow when dismissing an employee for misconduct. Accordingly, the Court set out “general principles of law and of equity relevant to a fair dismissal on a charge of theft”, with reference to both domestic case law and international law.
The Court noted that, to be a fair dismissal, the termination needed to be substantively and procedurally fair, stating:
“These rules of natural justice, or rules of equity as they are sometimes called, are derived from conventions and recommendations of the International Labour Organization (ILO), which this court, also being a court of equity, applies when determining trade disputes”.
The Court observed that Article 4 of ILO Convention No. 158 was “the origin of the equitable requirement that an employee can only be dismissed if the employer has a valid reason for doing so”. In addition, the Court stated that the basic requirement for a procedurally fair dismissal was set out in Article 7 of ILO Convention No. 158.
Having set out the requirements for a substantively and procedurally fair dismissal for misconduct by reference to ILO Convention No. 158, the Court held that, in this case, the manager had failed to prove any theft of the gas cylinder by the claimants, and consequently, determined that their dismissal was unlawful as well as wrongful, as it was substantively unfair. In addition, the Court held that the dismissal of the applicants should have followed a disciplinary inquiry into the theft by the manager and, as no disciplinary enquiry had taken place, the dismissal of the applicants was also procedurally unfair. The Court awarded the claimants compensation of a monetary amount equivalent to approximately 3 months’ salary.