Mmegi

Idustrial Court judgement interdicts Lucara Botswana

Interdicti­ng the planned Optimizati­on and Retrenchme­nt of the Security Department

- MAENGE MAENGE

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.

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