Idustrial Court judgement interdicts Lucara Botswana
Interdicting the planned Optimization and Retrenchment of the Security Department
The Botswana Mine Workers Union (BMWU) feels vindicated by the Industrial Court judgement of Justice A. Mphetlhe delivered on April 28,2023 in Gaborone, in which it interdicted Lucara Botswana from proceeding with its restructuring process pending consultations and further directing the parties to return to the negotiation table on the separation packages as per their concluded retrenchment/ redundancy agreement.
The BMWU instituted an urgent application against Lucara Botswana on April 6, 2023 requesting the court to:
Interdict Lucara Botswana from proceeding with the restructuring process, declaring redundancies pending due consultations;
Lucara Botswana be directed to negotiate the retrenchment package with the Union as per the redundancy and retrenchment agreement concluded by parties.
Lucara Botswana strongly opposed the application on the grounds that the urgency by the Union was self-created; the separation package was not a negotiable matter but consultative; that the consultation on optimisation with the Union had been held and further that disclosure of the optimisation report was confidential; that the Union’s case on the same issue was before the Commissioner of Labour,
The Industrial Court in granting the Union’s interdict against Lucara Botswana, held that;
On the issue of urgency, the Union in its founding affidavit had adduced sufficient grounds for the matter to be heard on urgency. The Union had discharged the onus of establishing the existence of exceptional circumstances warranting its matter to be heard on urgency.
On the issue of whether the relief sought by the Union was similar to what it sought from the Commissioner of Labour, the court held that the Commissioner of Labour was neither a court of law nor clothed with powers to grant the interdict, therefore the matter filed by the Union with the Commissioner of Labour did not stop the Union from approaching the court for redress.
On the separation packages issue, the court held that there was no distinction between voluntary and compulsory separation. Voluntary separation was a form of retrenchment, therefore separation packages were negotiable as per guidance by the retrenchment and redundancy agreement concluded by parties and equally binding on them.
On the issue of refusal to disclose the APGI optimisation report, the court held that Lucara Botswana’s refusal to share recommendations and findings demonstrates bad faith on their part.
Effect of the Judgement
This judgement was delivered several days after the BMWU petitioned Lucara Botswana Board chairman, raising several issues, some of which were confirmed by the Industrial Court. The Union intends to furnish Lucara Botswana Board Chairman with a copy of this judgement to form part of the agenda items to be discussed at its upcoming shareholders annual meeting or the next Lucara Diamond Corp Board meeting. Provenance of commodities mined at Karowe Mine is very important in the global diamond trade, so is the company’s ESG performance and stewardship. Collective bargaining and human rights (workers rights) are critical indicators in ESG framework against which the performance of an operation and the management of potential risks by its executive leadership is gauged. It is apparent that there is a serious deficit in ESG stewardship at Lucara Botswana. The only outcome in such instances is the removal of the executive leadership. The Industrial Court judgement has vindicated the Union on Lucara Botswana’s failure to protect its employees, shareholders and investors and meet its ESG compliance and stewardship targets.