The Court of Appeal (CoA) will on Thursday determine the manner in which damages for unfair dismissal and quantum of damages against Barclays Bank Botswana Limited are to be calculated for junior managers who were fired in January 2012. Final arguments in the protracted legal tussle between Barclays and the dismissed managers, which has been ongoing for four years, were heard last week after the High court referred the matter back to the CoA. Moemedi Tafa of Armstrong Attorneys represented Barclays while Tshiamo Rantao argued for the dismissed managers before a full panel of CoA judges regarding the determination and calculation of damages. Tafa submitted that quantum of damages due to an employee that has been unlawfully dismissed be limited to notice period as provided for in their contracts is equivalent to one months' pay. Tafa argued that should the CoA find that the managers are not entitled to damages equivalent to their notice periods as prescribed in their employment contracts, alternatively the managers would be entitled to damages in the sum of six months' pay.
Rantao, on the other hand, argued that the loss suffered by the managers represents the sum due to them for the unexpired period of their contracts less any sum they earned or could have earned in the latter period in similar employment. "Since the normal retirement age of the (managers) is 60, the unexpired period is the remaining period until their retirement age," submitted Rantao, arguing that court should order Barclays to pay out the remainder of the contracts of the unfairly dismissed management until retirement age of 60. After being dismissed for their participation in activities of Barclays Management Staff Union (BAMSU), the four managers successfully sued the bank for unfair dismissal and demanded reinstatement and outstanding back pays. The four dismissed managers are Chakalisa Ronald Phuthego - Operational Risk Advisor, Cecilia Modise - Acting Branch Manager Carbo Prestige, Botho Disang - Corporate Manager's Assistant at Head Office and Josephine Morule - Service Desk Manager, Loans Processing. Two other regional managers Beauty Thaga and Sinikiwe Masalila, who were also dismissed in March 2013, for similar offences also won their unfair dismissal case before court. Although the CoA later upheld the lower caught judgment it found that the managers could not be reinstated due to passage of time and the strained relations between the parties.
The CoA referred the matter to the lower court for determination of damages and the calculation of the quantum, but the lower court returned the matter after failing to find an amicable resolution between the parties. High Court judges Justice Singh Walia and Lot Moroka heard the two separate cases. Justice Moroka had found that the decision of the then Managing Director Aupa Monyatsi in dismissing the managers was unlawful because they were never afforded a hearing, thus violating the rule of natural justice. Ordering reinstatement Justice Moroka found that Barclays being a big bank with a foothold throughout the country, there is no evidence of an irretrievable breakdown in relationships between the parties. "Reinstatement to the jobs held by each applicant upon dismissal is ordered. (Barclays) should pay to each applicant back pays and other benefits from the date of dismissal," said Judge Moroka.
Trouble started after managerial staff at Barclays wrote a letter of complaint about issues of staff dated September 1, 2011 to the Managing Director and copied to Office of the President, Governor of Bank of Botswana, and Minister of Labour and Home Affairs. The letter rubbed executive management the wrong way because they perceived the copying of the letter to external stakeholders as a threat to bank's reputation and brand. Management then isolated individuals whose names appeared in the letter and wrote them individual emails dated 15 September 2011 demanding that those that did not sign the letter to forward emails to one Namenda Maruza indicating same within four days.