Allow me editor with due respect to comment and respond to an article which appeared in The Monitor of Monday 25 April 2016 under the subject heading – ‘BOFEPUSU has a fear of leadership change’ written by one Karabo Ramogotsi. I do respect individual freedom of expression and speech, particularly in dealing with issues of Labour law and administrative law in its broader context. However, it is a fact that, other people’s rights and freedom begins where individual’s rights and freedoms end. The author has it all wrong in his advanced argument and he has just fall short of praising the employer on capricious administrative decision that it has taken to Transfer comrade Johannes Tshukudu and Moses Monnatsie from their Teaching Profession (cadre) into the General Administration cadre in serious breach of existing Scheme of services of the two parallel cadres.
It is on the basis of the unfortunate comments and expressions made by comrade Ramogotsi that, I find it imperative give him a free lecturer on the distinct between the principal functions of BOFEPUSU leadership and that of comrade Tshukudu and my younger brother, Moses Monnatsie as employees of government. l believe there is undeniable fact that, BOFEPUSU is a duly registered Public Sector Federation with full capacity and competencies to liberalize the working class from oppression and slavery of both the employer, self-centered and greedy union leaders who behaves more likely like capitalists. I must emphasizes that there is no dispute of facts that BOFEPUSU is an indispensable Public Sector Federation of repute, which has organized public sector employees under one roof in 2011 and those in its leadership are entitled to, and eligible for leave of absent to deal freely with issues that concerns the working class. there is no doubt in my mind that, BOFEPUSU has absolute right to defend both the integrity of the federation and its leadership in any Court of law and ensure that Justice takes its course for the promotion of sound labour relations in the country.
The comments and expressions made by comrade Ramogotsi regarding the promotions and subsequent transfers of comrade Tshukudu and Monnatsie into the General Administration Cadre are disturbing, misleading and thus lacks substance. It terms of the interpretation section of the Public Service Act, appointment include amongst others; promotion and transfer. Transfer by its nature constitutes an administrative decision or action and as a result, it may be challenged by a way of review and interdict, this is not Taboo. The provisions of the General Order 12 of the General Orders of 1996(Revised 1996) gives the employers the power to transfer employees from one post to another or from one place to another when the public interest so requires.
All persons who qualify for transfer to a vacant post must be considered based on training, skills, competence and the need to redress. The transfer must be effected when the public interests so requires and it must therefore accord with the provision of Section 7 of the Public Service Act of 2008 and the provisions of General Order 12 of the general orders. Employees’ transfers must not at any material time, be suspicious of rendering the employment relationship intolerable. It is common course that, if employer has made the working environment or employment intolerable to the employees by effecting transfers that can make employees’ working lives unbearable or render the employment relationship intolerable, that could be considered as or amount to constructive dismissal.
There are undeniable facts that, public employees are entitled to a pre-transfer hearing before a final decision to transfer is taken, and as a result; Comrade Tshukudu, including Monnatsie have the right to challenge the reasons for transfer as well as the procedure followed. The right to treat employees fairly and not to subject any employee to arbitrary or capricious administrative decision in making appointment or before contemplated transfer is enshrined in section 7.(a) and (d) of the public service Act of 2008 and is contractual under the common-law of contract of employment. Naturally, transfers fall within the managerial prerogative of the employer, however; the employee’s views must be taken into account before a decision to transfer is finally taken and in the case of Tshukudu, it is alleged that there was no prior consultation as provided under General Order 12.2 and 13.4 respectively.
Where employer fails to consult employee and then took a decision to dismiss an employee because an employee has for refused to accept a transfer. Such administrative decision will be set aside by a competent Court of Law and court will rule that; the dismissal of employee for refusing to accept transfer was procedurally unfair, because employee was not consulted before the decision was made to transfer them. In many cases courts invokes the common-law doctrine of legitimate expectations to come to its findings. It is a fact and becoming common in Botswana that, employers/appointing authorities have the tendency of imposing transfer as a disciplinary penalty short of dismissal. I believe this is a worrisome to BOFEPUSU leadership and this is why there are defending comrade Tshukudu and the working class at both Industrial Court and Court of Appeal.
Employers and in particular Public Sector Employers must adhere to applicable labour laws, legislations and the requirements of fair administrative action before transferring employees to minimize labour costs. Transfer of an employee for ulterior motive has been ruled in many cases as unlawful. (See case of Oaitse Diane Patle vs. Ministry of Environment Wildlife and Tourism- MAHLB-000002-11). In the above stated case, Judge Justice Makhwade has remarkably stated that” where a public body puts down in writing procedure to be followed, it can only inspire confidence if the procedures are followed.
REMEDIES FOR UNFAIR TRANSFER
Disputes concerning alleged unfair labour practice are processed in the like manner as disputes concerning unfair dismissal. There must be referred to a duly recognized labour dispute mechanism and competent body having jurisdiction before being referred to Industrial Court or High Court which has exclusive jurisdiction to hear complaints regarding appointment in its proper context, unless on matter of urgency. Jurisdiction of both Industrial Court and the High Court to hear a particular case or dispute is centered on the “core issue” before the Judge and the merits of the case.
As a matter of fact, labour law provides that, in determining a potential candidate suitability for promotion or progression, employer must take into cognizance not only formal qualifications, but also must consider prior learning, professional skills and ability to do the job. In doing so, employer must also take into account the provisions of the applicable scheme of service for a particular cadre as well as the provisions of Section 5. (4) And section 14 of the Public Service Act of 2008. Public Administration Officers who have been over-looked when comrade Tshukudu and Monnatsie were promoted to D4 and D3 salary scales; may challenge the criteria used to supersedes them and to promote Teachers into the General Administration Cadre. The administrative decision taken is in breach of their existing scheme of service (Directive No: 13 0f 2015) being the Scheme of Service for the General Administration Cadre which does not apply teachers/lecturers and it has also violated Section 17 of the Public Service Act.
I am quite certain that under the employment law, employers had a free hand in deciding whom to appoint, but subject only to statutory qualifications for the job. Employees may therefore allege that, they were discriminated, and in my view, discrimination may be in two-fold indirect or direct and in some instances, certain group of employees are denied appointment based on inherent requirements of the job, as set in the advertisement. My humble submission and logical contention is that BOFEPUSU leadership and in particular comrade Tshukudu, has taken a proper and informed decision to challenge his transfer and there are prospects of success in his case. We (public employees) have to support such strategic leadership rather than to criticize; injury to one is injury to all (Ngwana wa ga mmamotho mosidi wa pitsana).
PS: These are personal views and comments of the author and are not of any union, federation or Institution with which he may be a member with good standing.