Botswana Baylor Children's Clinical Centre of Excellence was last week ordered by the Court of Appeal (CoA) to cough up approximately P1 million as damages for wrongful dismissal of Gaborone-based medical doctor, Dr Marape Marape. Three Court of Appeal judges Justice F.D.J. Brand, C.T. Howie and I.B.K Lesetedi concurred that Dr Marape was unlawfully dismissed by the Executive Director Professor Gabriel Anabwani in December 2013, just six months into a two-year contract. Prof Anabwani dismissed Dr Marape after the latter fell ill on December 5, 2013 and on the advice of a medical practitioner (who also produced a medical certificate) that he could not report for work for the next two days. He was dismissed without any disciplinary process being followed as stipulated in the contract the parties had entered into on July 1, 2013.
The judges, therefore, agreed with the high court decision that Dr Marape be paid damages for loss of earnings for the unexpired period of his contract, which amounted to 18 months, since the clinic had failed to demonstrate that any other conditions like reduction of staff or demotion were expected to occur in that period. In fact all the arguments supporting the appeal against damages for loss of earnings were thrown out. Lawyers representing Baylor Clinic argued that Dr Marape was only entitled to damages for the period that would have elapsed had proper disciplinary proceedings been followed. This, according to their argument meant that the doctor's loss of earnings is the equivalent of his salary for one month. But the judges disagreed, pointing out that disciplinary proceedings do not always end in dismissals, as was likely in the current case.
"The facts of this case provide a good illustration as to why the time taken to conclude a disciplinary process is an inappropriate measure for calculating the income the plaintiff had lost through the wrongful termination of his employment. This vividly illustrates that time taken by disciplinary proceedings resulting from misconduct, cannot be an appropriate measure," said Justice Brand. Baylor's lawyers also argued that the high court erred in calculating Dr Marape's loss of earnings with reference to the total monthly income which included allowances instead of his basic salary. But the judges disagreed, pointing out that "in accordance with the principles of contract law, the aim of contractual damages is to place the innocent party in the position he would have occupied had the contract not been breached, in so far as that can be done by monetary award".
Justice Brand also dismissed as unfounded, arguments by Baylor lawyers that the high court erred in not finding that Dr Marape did or could reasonably have earned an income during the unexpired contract period. Although Dr Marape had intermittently worked at the Ohio University and subsequently set up a clinic in Gaborone after he was dismissed from Baylor, lawyers representing the clinic had failed to establish the amount he earned to assist the court to reach a decision. Justice Brand, however, upheld the appeal by Baylor clinic over the calculation of damages for loss of gratuity and for payment in lieu of lost leave in accordance with the general conditions of service. There, he ordered that, while interest for loss of earnings should be calculated from the date of the high court judgment, interest for loss of gratuity and leave earnings should be calculated from December 2013. The costs of the appeal are to be paid by Dr Marape, which together with correction of calculations for interest for loss of gratuity and leave translates into a reduction of about P150 000.00.
• Loss of earnings P854, 550.00 plus 10% interest per annum from 14 August 2015 to date of payment
• Loss of gratuity P53, 041.50 plus 10% interest per annum from 17 December 2013 to date of payment
• Accrued annual leave P15, 269.52 plus 10% interest per annum from 17 December 2013 to date of payment
• Costs of the lawsuit
Baylor Children's clinic is a partnership between the Government of Botswana and the Baylor College of Medicine in the United States of America. It operates primarily as a centre for the treatment of HIV infected children in Gaborone and other centres.