BMWU VICTORIOUS AGAINST PPC AGGREGATES’ DELAYING TACTICS IN COURT

BOTSWANA Mine Workers Union (BMWU) is happy with the ruling by the Francistown High Court dismissing with costs the dilatory application by PPC Aggregates Botswana over their wrongful calculation of retrenchment packages owed and due to former employees of Quarries of Botswana and Francistown Quarries, following the company’s acquisition by PPC Aggregates Botswana.

On the 23rd August, 2021 the BMWU, following its victory on the determination of whether employees were in continuous employment of PPC Aggregates, instituted proceedings for the enforcement of its Retrenchment and Redeployment Agreement against PPC Aggregates. PPC Aggregates contended the suit and applied for an exception, citing that the BMWU’S claim disclosed no cause of action to the extent that the Employment Act made no provision for the payment of retrenchment packages. On the 2nd September, 2021 the Francistown High Court ruled in favour of forty-five (45) PPC Aggregates workers, whose retrenchment packages were wrongfully calculated by their employer despite the existence of a binding Retrenchment and Redeployment Agreement entered and concluded between Quarries Botswana and Botswana Mine Workers Union on the 11th November, 2004. The matter had been before the courts since 2012, and had gone through different stages of litigation.

In dismissing the dilatory application, Mogomotsi J said, “It is common cause that, the defendant was not party to the retrenchment agreement between the plaintiffs and their former employer. However, upon acquisition of the plaintiff’s former employer, the defendant stepped into the shoes of the plaintiff’s former employer and became the successor in title.………………… The successor in title in this instance had no right to unilaterally vary the plaintiff’s contract, especially where such variation was calculated in its execution to disadvantage the plaintiffs.”

PPC Aggregates’ strategy was to kill the BMWU’S case on technicalities and prevent it from being heard on the merits so as to avoid liability of paying retrenched employees outstanding benefits.

The dismissal of the application means the main suit, which was instituted by summons, will proceed to trial on the merits and PPC Aggregates Botswana is expected to serve the BMWU with its plea on the 22nd September, 2021 and the BMWU to reply by 12th October, 2021 and appear for initial case management conference on the 16th, 2021.

This is an important victory for workers. It shows the court’s attitude towards knavish employers who harbor intentions of using accounting concepts including restructuring as justification for breaching binding agreements concluded with the Union. The ruling was fair and it gives workers a fighting chance in asserting their rights against employers in a system that often favours capital (employer).