Barclays case thrown back to High Court

SHARE   |   Monday, 01 August 2016   |   By Staff Writer

Junior Managers who were unfairly dismissed by Barclays Bank of Botswana in 2012 are waiting with baited breath and pinning hopes on the decision of high court Judge Lakhvinder Singh Walia after a full bench of five Court of Appeal (CoA) provided guidance on the calculation of damages on Thursday. The case had been referred to the CoA by Justice Walia because the computation of damages was beset by difficulty created by conflicting decisions of the court, after the quartet successfully sued Barclays for damages emanating from wrongful dismissal. Now the honours are on Justice Lakhvinder Singh Walia to determine the most suitable calculation of the damages due to the applicants in accordance with the guidelines provided by the CoA.

The judges explained the four different contracts which could be entered into between the employer and an employee, discernible in the Trade Disputes Act under different scenarios in a case of unfair dismissal. These are; A contract for a specified period which contains no notice provision; a fixed term contract which does not contain a notice provision; a contract for an unspecified period which contains no notice period and A contract for an unspecified period which contains a notice period. In the Barclays case the most likely scenario is the latter case, which has sparked fears that the unfairly dismissed managers could walk away empty handed because they have already been paid termination notice of one month. The four dismissed managers entered into written contracts with Barclays, which commenced in 1977, 1990, 1991 and 2002 respectively and provided in all four for retirement at the age of 60. Two contracts provided for the bank to have given termination notice of one month whilst the other two contracts contained no notice provision.

One of the dismissed employees Cecilia Modise said they are disappointed as they had hoped that the CoA will find that they should be compensated for the remainder of their contracts since the bank was found to have unfairly dismissed them. "There is no justice in this country. What this means is that the employer can fire employees at any time without due process because the law will only award the unfairly dismissed employee one month pay as damages," she said. 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. 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.

Moemedi Tafa of Armstrongs Attorneys representing Barclays had argued 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. He said a dismissed employee is not entitled to damages equivalent to their unexpired periods in their employment contracts, but are only entitled to one month notice pay or damages in the sum of six months' pay - the maximum period which a disciplinary process would have been expected to take. But judge Howie said; "I do not see the logic of or necessity for the notional disciplinary process approach where the contract or the Act provide for the termination on notice. The notional disciplinary process approach to assessing common law damages should therefore be abandoned". Representing the dismissed managers, attorney Tshiamo Rantao had 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. He wanted CoA to order Barclays to pay out the remainder of the contracts of the unfairly dismissed managers until retirement age of 60.  But the CoA judges disagreed.

The CoA full bench also threw out and ordered that a decision in the case submitted by Rantao, Motsumi v. First national Bank of Botswana should never be followed when deciding matters in court. In the cited case the judge had concluded that "when an employer wants to terminate a contract of employment which is for an unspecified period of time, he must have just cause for doing so and also has to give his reasons therefor".  Justice Howie said; "No legitimate purpose, whether contractual, commercial or otherwise can possibly be advanced by requiring employees to have just cause, and give reasons  for terminating their contracts where all they may want to achieve is better pay or better working environment or simply different work in another job".
The CoA has referred the guidelines back to the lower court to use to conclude the matter.