Termination of employment reviewable - Justice Leburu
Statistics Botswana dragged before court over employment termination
High Court Judge, Michael Leburu has dismissed arguments by Statistics Botswana that its decision to dismiss an employee is not subject to judicial review.
A dismissed employee of Statistics Botswana, Kebonye Setshube has dragged the employer before court to review a decision to dismiss him from work. Respondents in the case are Dr Burton Mguni ( 1st Respondent), Tapologo Baakile ( 2nd Respondent), Statistics Botswana ( 3rd Respondent).
Justice Leburu stated in his judgement that at the epicentre of the interlocutory discourse is whether the decision of the Respondents, a statutory body, to dismiss its employee a er a disciplinary hearing, is reviewable or not. He said in terms of his notice of motion, the Applicant is seeking orders that: the decision of the 1st Respondent and/ or Respondents taken on the 4th of November 2022, dismissing the Applicant from employment with the 3rd Respondent is hereby reviewed and set aside; that the Applicant is hereby reinstated to his employment and is retrospectively paid all emoluments and bene ts he is entitled to, from the date of termination to the date of judgment.
He said the Respondents have raised a preliminary point of law and have posited that the impugned decision is not subject to judicial review, considering that it was purely a contractual and private matter between an employer and its employee and therefore it was not an exercise of public power or duty which is reviewable.
“The Applicant submitted a contrario, hence the present ruling,” Judge Leburu said. e Applicant was employed by the 3rd Respondent as a Marketing and Communications O cer. By way of a letter dated the 21st September 2022, the 3rd Respondent noti ed the Applicant of a disciplinary hearing concerning the latter. is was on account of the Applicant’s alleged contravention of Section 10.6 ( e) of the Statistics Botswana Terms and Conditions of Service of 2012, which succinctly prohibited unauthorised absence from duty for more than ve consecutive working days.
The Respondents alleged that the Applicant had been absent from work for eight days without leave. On the 5th October 2022, the Applicant was informed that his disciplinary hearing was to commence on the 13th October 2022, and was to be chaired by the 2nd Respondent, Tapologo Baakile.
Justice Leburu said Setshube averred that following the disciplinary hearing, Baakile failed to submit Minutes arising therefrom to him ( Setshube) and his Union representative for signing. He said on the 9th November 2022,
Setshube received a letter dated 4th November 2022, from Dr Mguni communicating his dismissal from employment with immediate effect. e judge pointed out that in order to be furnished with the copy of the Minutes of the disciplinary hearing, for purposes of appeal, Setshube wrote a letter dated 10th November 2022 to Dr Mguni.
Stated Justice Leburu; “the request was not heeded”. e Applicant proceeded to write another letter on the 11th November 2022, seeking clarity as to what avenues he ought to utilise to lodge an appeal and again, there was an absence of riposte to the clarity sought. e Applicant’s point of departure is that the 1st Respondent’s decision to terminate his contract of employment is tainted and laced with procedural impropriety and further that it was unfair in that it breached the audi alterem partem rule ( his right to be listened to). e judge said Setshube submitted that he was not given a hearing before Dr Mguni decided to substitute the decision of Baakile, imposing a nal written warning. e Judge explained that Setshube, in rebutting Dr Mguni’s submission that his decision did not entail an exercise of public power, he placed heavy reliance on Section 19 ( 2) ( a) of the Statistics Act of 2009, which gives Dr Mguni the powers to employ sta .
“Due to a lack of express power bequeathed to the 1st Respondent to dismiss or terminate contracts, the Applicant relied on Section 12 ( 3) of the Public Authorities ( Functions) Act, 1984, which stipulates as follows: ‘ where an enactment confers power to approve any person, matter or thing, the power shall include power to withdraw approval thereof ’.
“On the basis of the aforementioned, the Applicant submitted that the 1st Respondent exercised a statutory power, and not a private power, regarding termination of employment”, Justice Leburu said.
He explained that on the basis of the afore- going, the decision of the Respondents to terminate the contract of employment of the Applicant is reviewable. e Respondent’s point in limine is not su ciently merited. He added that as a result of the aforegoing, he holds that Statistics Botswana in the instant case is a public body. He explained that Dr Mguni exercised his statutory power to terminate Setshube’s contract of employment.
Justice Leburu stated that employees of the 3rd Respondent perform functions necessary for the good performance of a national statistical bureau.
“e subject matter of the decision, which is termination of employment of a public o cer, is a matter of public interest, such that the impugned decision is subject to review. It must be stressed that the High Court, has an inherent or Common Law right to review the proceedings conducted by administrative or statutory bodies and of certain domestic tribunals, and the creation of procedural machinery, such as Order 61 of the High Court Rules, does not curtail this right.
“Indeed, this rule is designed to aid a litigant in pursuing his/ her legal remedies in this regard, and not to sti e access to justice,” Justice Leburu ruled.