Non-ratified treaty;¹ Foreign legislation;²  Foreign case law³

Dismissal on grounds of illness/ Deficiency in national legislation/ Establishment of a jurisprudential principle based on international law/ Reference to international law to strengthen a decision based on domestic law

The editor of two newspapers had been ill for several months in succession and had never informed his employer of the exact reasons for his absence. After a certain lapse of time the editor-in-chief of the newspaper decided to dismiss the employee for “prolonged absence for reasons of ill-health”. This dismissal was furthermore carried out without notice. The former editor considered that his dismissal was illegal and unfair.

The Industrial Court found that Botswana legislation did not contain any provision on dismissal for medical reasons. It therefore considered that it should rely on other sources, including international law, to determine the guidelines applicable to the dispute:

 “The Court must therefore look elsewhere for guidance in this report. As dismissals because of ill-health are so closely related to dismissals for incapacity to perform, the Court will now set out the international principles of equity regarding dismissals for incapacity to perform.”

The Court then established its competence to take account of international labour Conventions:

“As the Industrial Court is not only a court of law but also a court of equity, it applies rules of natural justice or rules of equity as they are some times called, when determining trade disputes. These rules of equity are derived from the common law as well as from Conventions and Recommendations of the International Labour Organization (ILO). The basic requirements for a substantively fair dismissal, which will include dismissal because of incapacity due to ill health, are succinctly stated in Article 4 of ILO Convention No. 158 of 1982, which provide as follows:

“The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.”

“The reason of saying that ILO Convention No. 158 is also applicable to incapacity due to ill health is because of the aforesaid underlined word “capacity”, which in the said context also includes incapacity.”

Referring to Convention No. 158 (Articles 4⁴ and 6),⁵ English case law and South African legislation, the Botswana Industrial Court established the rule of law applicable to dismissal on medical grounds, summarizing these principles as follows:

“To sum up these principles, there must first and foremost be a valid medical reason for an employee’s incapacity to perform, i.e. the illness must be such that the employee can no longer, as a result of the said illness, perform the duty for which he was employed. Temporary absence from work because of illness is not a valid reason for termination of a contract of employment. The employer must first assess what the illness is, then the seriousness of such illness and then he needs to make a prognosis. This must be done in consultation with the employee and if possible also with a medical practitioner. If the employer is thereafter satisfied that the employee is not capable of performing the work which he was employed and there is no available alternative work, the employer will be justified in dismissing the employee for incapacity to perform his duties. That would be a valid reason for dismissal.”

It can be seen that with regard to temporary absence from work for reasons of health the Court relied to a large extent on Article 6 of ILO Convention No. 158, which stipulates that “Temporary absence from work because of illness or injury shall not constitute a valid reason for termination.” The other conditions for the validity of termination originated in South African case-law and were subsequently incorporated into the South African Labour Code.

With regard to notice, the Court found that the articles of the Botswana Labour Code pertaining to notice in the event of dismissal for misconduct could not be applied to dismissal on grounds of ill-health. The Court considered that an employee who was ill was not guilty of serious misconduct. It referred to one of its previous decisions in which it had ruled that an employer had to have a valid reason for failing to give notice of termination. The Court referred to ILO Convention No. 158 in support of its observations:

 “Confirmation of this conclusion regarding valid reason is to be found in Article 4 of ILO Convention 158, which was referred to above. And confirmation of the conclusion regarding notice is to be found in Article 11 of ILO Convention 158⁶ (…).”

Referring to Convention No. 158 the Industrial Court of Botswana established the principles applicable to termination for reasons of ill-health and concerning justification of termination on the one hand and the worker’s right to notice on the other. The Court considered in this instance that, although the termination of the employment contract had essentially been justified, the refusal to give the worker notice was illegal. The employer was ordered to pay the worker compensation.