UB caught in unlawful transfers

SHARE   |   Monday, 21 September 2015   |   By Keitebe Kgosikebatho

The University of Botswana’s (UB) plan to cover up its unfair dealings by telling untruths in order to influence judgement in a matter involving its decision to transfer some employees of the University’s Centre for Continuing Education (CCE)  without proper consultations was on Wednesday exposed by a private arbitrator.

The University had submitted in a matter that was heard in a private arbitration before Ebrahim Patelia  in Gaborone on the 12 August 2015 that despite the insistence by the concerned employees, the institution had in fact  followed procedure and had consulted them adequately. In its statement of case dated 22 July 2015, the university stated that Dr Morolong, the then Acting Director for CCE, reported to the Deputy Vice Chancellor Academic Affairs (DVCAA) after 2 May 2014 meeting that she had conducted interviews with the CCE staff in respect of their proposed transfers and provided documents to that effect.

This assertion was, however, branded untrue by Patelia as the said Dr Morolong blatantly dismissed the claim, saying she was never appointed to do such and that he was just used by the institution to cover up its dirty dealings. Relaying Dr Morolong’s statement, Patelia stated that as per her statement Dr Morolong said: “She was never given an instruction by Professor Totolo (Professor Totolo assumed the permanent position of DVCAA as of 1 July 2013 and remains the DVCAA) or any other official of the university to conduct interviews with staff who were contemplated to be transferred in the implementation phase nor was she ever instructed to canvass their views.”

According to the Arbitrator, Dr Morolong denied that she reported to Professor Totolo, as alleged by the university, that she had conducted interviews with the academic staff in the CCE regarding their proposed transfers to the faculties. Patelia said Dr Morolong further stated that she was never instructed to conduct any interviews and that  the “Respondent UB) is trying to make me a scapegoat for its failure to consult staff members prior to the decision to transfer them”. According to  Dr Morolong, she was never given a mandate to consult with staff of CCE and confirmed that she had never done so.

Responding to this anomaly, Patelia observed that the university had in its statement of defence before him and the DVCAA in his affidavit before the Industrial Court confirmed categorically that Dr Morolong was requested by the DVCAA to conduct discussions with employees in the CCE who qualified for transfers to determine what their views and preferences were in respect of the transfers. According Patelia, the DVCAA stated that Dr Morolong undertook this task over a period of more than a month and reported to him that she had undertaken the consultations. The DVCAA, according Patelia, further stated that he received a report from Dr Morolong detailing the preferences of the employees, and  that he issued the transfer notices to the employees in response to this input. “However, it is clear from the undisputed affidavit of Dr Morolong before me that the position presented by the respondent (UB) in this respect was false at worse and ill-informed at best. In essence, Dr Morolong disputes even receiving an instruction from the DVCAA to conduct the consultations, never consulted with the employees and never obtained consent in preparing the report marked ‘U25’,” said Patelia.

He thus concluded that  the transfers effected by the university were not legally valid as it were devoid of a fair process and in addition did not constitute a sound substantive decision. “Why then would the DVCAA present a false version before the court other than attempting to cover up what is most probably an unfair process,” Patelia asked. This, he says, indicates that the university was determined to prove, at all costs, that there was a consultative process, even if it involved a material lie. “The respondent then appears to have acted mala fide in this process and warrants the reasonable conclusion that the process embarked upon was patently unfair,” said Patelia.

When stating the arbitration award, Patelia ruled that any transfer that does not result in a material change to terms and conditions of employment to the extent that it creates a substantially different contact of employment is a consultative issue, that the transfers in so far as the terms and conditions of the employees remain the same, are a consultative matter. He also ruled that there was no adequate and meaningful consultation process in this matter. “The transfer decision in my view was invalid. The arbitration award is final and binding on the parties. It would be in the interest of fairness for the respondent party to start the process afresh and apply the required process as clarified in this award, “ he said.

Staff from CCE had dragged the university to court after the employer had transferred them to other faculties in a restructuring process that would have done away with the centre, without consulting them on the change. The matter was later referred to arbitration. The issues for determination in the matter included among others; Whether the issue of transfers of the employees from the CCE to other departments of the university is a negotiable matter; If the transfer issue is a negotiable matter, whether it was preceded by negotiation;  and if not, whether or not the transfers issue is a consultative matter;  If it is determined that it is a consultative matter, whether the affected employees and/or UBASSSU (the union representing them) were consulted prior to the decision to transfer.



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