Ratified treaty;¹ Unratified treaty;² Foreign case law³

Discrimination on the grounds of sex/ Dismissal/ Direct resolution of a dispute on the basis of international law

The applicants were two women who had been dismissed on the grounds that the work was “very heavy” and “not recommended for women”, and that they couldn’t load and work late night shift. The applicants said that they had been asked to work on night shift only on one occasion for a week and they had no complaints regarding working at night. Regarding loading, they did not work in the loading section and were never requested to assist with that. Moreover, they had not been consulted prior to termination of their employment.

Referring to ILO Convention No. 158 on Termination of Employment, the Court noted that that there must be a valid reason for the termination of an employment contract connected with the capacity or conduct of the worker and that prior to such termination workers must be provided with an opportunity to defend themselves. When the employer contemplates the termination for operational reasons of an economic, technological structural or similar nature, the employer must engage in consultations with the workers or the workers representatives.

The Court found that none of these procedures had been followed and thus the dismissals were procedurally unfair. After having established this, the Court addressed the issue whether there was a substantial justification for dismissing the two applicants. In absence of evidence that the dismissals were based on operational requirements, as sustained by the respondent, it concluded that the applicants were dismissed on the basis of their alleged incapacity to perform loading tasks and to work night shifts as women. In this regard, the Court considered that article 1(3) of ILO Convention No. 111 protects workers from discrimination in respect of termination of employment, and article 5 of ILO Convention No. 158, which states that sex shall not be considered as a valid reason for termination of a contract, has been incorporated within the domestic legislation through section 23(d) of the Employment Act. The Court, therefore, concluded that the respondent violated section 23(d) of the Employment Act because the terminations were discriminatory since “based on the sex or gender of the applicants”. Moreover, it observed that unlike what had been argued by the respondent, sex could not be considered as an inherent requirement of the job, which under article 1(2) of ILO Convention No. 111 would allow the differential treatment not be considered as discrimination. No evidence was provided that there were any constraints on the women performing the above-mentioned functions.

Regarding the use of ILO Conventions, the Court referred to the case Attorney-General v Dow and observed that:

“Botswana being a member of the International Labour Organization, and the industrial Court, being a court of equity, the Court follows international labour standards and applies the conventions and recommendations of the ILO”.⁴

Thus, on the basis of both domestic legislation and ILO Conventions Nos. 111 and 158, the Court found that the dismissals were procedurally and substantively unfair and ordered compensation to each applicant.

¹ ILO Discrimination (Employment and Occupation) Convention, 1958 (No.111).

² ILO Termination of Employment Convention, 1982 (No. 158).

³ South Africa, United Kingdom, United States.

⁴ Paragraph 24 of the decision.