Former Barclays Bank Botswana managers who were fired by the then Acting Managing Director Aupa Monyatsi in 2012 will on Thursday know their fate when the Court of Appeal decides on an appeal by the bank against reinstating them.
Sinikiwe Masalila - Corporate Relationship Manager and Beauty Thaga - Operations Manager together with four other managers in the executive committee of Barclays Management Staff Union (BAMSU) were fired for what the bank viewed as misconduct. They were dismissed on 16 January 2012. They appealed their dismissals and the decisions to dismiss them were overturned on appeal and re-hearings recommended. The managers refused the re-hearings arguing that such process was not catered for in the Toolkit, and as a result their dismissals were confirmed on 24 May 2012. Early this year High court judge Lot Moroka ruled that the dismissals were unlawful and ordered Barclays to reinstate the two to their positions. Ordering reinstatement 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 backpays and other benefits from the date of dismissal," said Judge Moroka. The case for the other four managers is pending before the High Court.
South African advocate Stephen Vivian, representing Barclays was on Friday put under intensive questioning by the panel of judges made up of CoA judge president Ian Kirby, Justice Isaac Lesetedi and justice Elijah Legwaila. The judges wanted to know why the then managing director made a recommendation for re-hearings when he was the one supposed to make the final decision after the completion of the disciplinary hearings. They said such decision was incompetent as it cannot be said that he made a recommendation to himself. Justice Lesetedi even wondered if perhaps the MD wants to take advantage of such an ambiguous decision.
Vivian argued that it is wrong to find that the managers' dismissals were prejudged by senior management as demonstrated by the termination of their cellphone contracts with Mascom long before the disciplinary process got underway. He also said the dismissals were not influenced by the managers' participation in BAMSU committee, but added that investigations revealed that some signatures in the disputed letter were obtained fraudulently. Vivian, however was grilled by Lesetedi and Kirby who wanted to know why only managers in BAMSU committee were charged leaving out others. "Why did the investigation single out only those in the committee leaving out many others who were at the meeting where the decision to write the letter complained of was made? Was it a matter of pin pointing the ring leaders? They were charged because of being union leaders," Kirby asked.
On remedies available, Vivian said it is up to the dismissed employees to demonstrate that their only option is reinstatement. He argued that the managers can still enjoy alternative remedies like payment of damages. Kirby said it would be a difficult decision because there is no evidence submitted to support arguments on the difficulty of reinstatement. He said in some instances it may not be convincing that the dismissed employees cannot be reinstated because the relationship with the employer has broken down when regard is had to the size of the organisation. He said reinstatement may be opposed because someone else has taken the position of the dismissed managers.
For the managers, attorney Tshiamo Rantao said the bank has committed statutory breaches and in such cases where the process has been declared a nullity, reinstatement is mandatory according to the Employment Act. A heated argument erupted between the judges and Rantao when the latter suggested that court does not have discretion but to order reinstatement when a statutory breach has been found. All the three judges disagreed with the interpretation, saying court always has discretion. "There is nothing compelling the court to reinstate. Looking at the particulars of a case court has discretion to determine appropriate remedy," said Lesetedi, to which Legwaila added that there are many cases where court has used discretion even as the statute appeared absolute.
Judgement on the appeal will be delivered on Thursday. Vivian was assisted by Moemedi Tafa of Armstrongs attorneys, while Rantao and Tefo Gaongalelwe are representing the dismissed managers. In a similar case four other managers dismissed at the same time will tomorrow appear before Justice Singh Walia to argue their case. However due to the similarity between the cases it was expected that the matter will be rescheduled to a later date to allow for the judgment in the current appeal.
Trouble started after managerial staff at Barclays wrote a letter of complaint in September 2011 to the then Managing Director, Wilfred Mpai. The letter angered senior management, because they perceived the involvement of external stakeholders as a threat to bank's reputation and brand. Management then isolated individuals whose names appeared in the letter demanding that those that did not sign the letter to indicate so. But the managers declined insisting that management address issues raised in the complaint letter. The managers were formally charged in November 2011, and disciplinary hearings held on 15 December 2011. The hearings culminated with dismissal of the managers. An appeals board quashed the dismissal decision and recommended a rehearing. However the managers argued that the disciplinary code in the bank's Toolkit does not envisage a re-hearing . Monyatsi then without constituting and convening a re-hearing, made a decision to fire the managers without any further due process.