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Slorry v Botswana Technology Centre (Civil Appeal No. 28 of 202) [2002] BWCA 33 (28 July 2002)

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IN THE COURT OF APPEAL FOR THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
Court of Appeal Civil Appeal No. 28/2002 Industrial Court Case No.lC106/2001
In the matter between:
THOMAS SLORRY    Appellant
And
BOTSWANA TECHNOLOGY CENTRE       Respondent
Appellant in Person
Mrs D. Khama for the Respondent
JUDGMENT
CORAM: P H TEBBUTT Ag. JP N W ZIETSMAN J A F H GROSSKOPF J A
ZIETSMAN J A:
The appellant, who was employed by the respondent and was retrenched, sought an order from the Industrial Court for his reinstatement and for the payment of various sums of money which he alleges would have been paid to him if he had not been retrenched. The Industrial Court, after considering the relevant documents and the evidence of witnesses, came to the conclusion that the termination of the appellant's employment through retrenchment was substantially fair and that he was

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not entitled to payment of any of the sums claimed by him. His claims were therefore dismissed. The appellant appeals to this court against the order made by the Industrial Court.
The appellant, in his grounds of appeal, does not contend that the legal requirements set out in section 25 of the Employment Act (Cap 47:01) were not complied with. He alleges that the decision taken to retrench him was discriminatory and unfair and that he is entitled to be reinstated in his employment.
It becomes necessary to set out briefly the circumstances which led up to the appellant's employment with the respondent. A project was started by the Ministry of Mineral Resources and Water Affairs ("the Ministry") which became known as the Expanded Coal Utilisation Project ("the ECUP"). The appellant applied for the post of technical assistant (stoves) and by letter dated 1 June 1989 he was advised that his application had been accepted and that he would be required to sign a two year contract with the Ministry. His appointment would date from 1 June 1989. By letter dated 20 June 1989 the appellant accepted the appointment as technical assistant (stoves) "to the Expanded Coal Utilisation Project Staff'. He at the same time asked that the salary to be paid to him be reconsidered. He concluded his letter by stating "I will be ready to sign the two-year contract as requested, at your convenience".

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It is not clear from the papers whether any further similar contracts were signed by the appellant after the expiry of the original two-year contract. What is important, however, is that his initial appointment was an appointment to the ECUP staff.
In August 1991 the Ministry entered into a managerial agreement with the
Botswana Technology Centre (the present respondent). The effect of the
agreement was to give the respondent the responsibility to plan and control the
activities of the ECUP. It was a further term of the agreement that the staff
employed specifically for the project would be transferred to the Botswana
Technology Centre (the respondent). The appellant was advised of this by letter
dated 25 September 1992. The letter contains the following paragraphs:
"This letter serves to inform you that you have been transferred to
the Botswana Technology Centre with effect from 1st September
1992. This means that as of that date, you will be under the
administrative direction and supervision of the Botswana Technology
Centre.
Please note that your accrued leave days will be carried over to the Botswana Technology Centre."
On 7 October 1992 a written contract of employment was concluded between the appellant and the respondent. The Botswana Technology Centre (the respondent) is referred to as the employer and the appellant as the employee. The contract

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provides that the period of employment will commence on 1 September 1992 and will be "of a permanent nature". The contract also contains the following specific clause (clause 2.5):
"This contract replaces any previous agreement of employment."
During the period 16 July 1993 to 12 September 1994 the appellant wrote letters to the Project Manager ECUP and to the respondent's managing director complaining about various matters. His main complaint was that he was not being properly compensated for his experience and skills, and his workload.
The ECUP was being operated by the respondent on behalf of the Ministry at both Gaborone and Francistown. For various reasons the Ministry decided to close down the operation at Gaborone on 31 October 1997 and the operation at Francistown on 30 November 1997. On the said dates these operations were taken over by an independent private company known as Exim Enterprises (Pty) Ltd. The main reason for the decision by the Ministry to close down the operations was a lack of funds to run the project.
On 28 February 1997 the appellant was advised by the respondent that his contract of employment with the respondent would terminate on 31 March 1997 and that all benefits due to him, such as accumulated leave payments and severance benefits, would be paid to him. The appellant was, however, offered a further

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temporary contract of employment by the respondent which offer he accepted. His further temporary employment ended on 30 September 1997. He was then finally retrenched and all benefits due to him were paid to him.
The appellant alleges that he should not have been retrenched at all. He alleges that he was employed by the government and that his employment with the government should have continued after the government's involvement in the ECUP was discontinued.
The respondent admits that not all of the workers involved in the ECUP were retrenched. Jane Mpetsane, the Human Resources and Administration Manager for the respondent alleged, in evidence which she gave in the Industrial Court, that when the Ministry transferred the project to the respondent some members of the Ministry's technical staff and other permanent staff members were seconded to the respondent. They were permanent employees at the Ministry, and when the ECUP was discontinued they returned to their positions with the Ministry. This situation did not apply to employees who had been employed specifically for the ECUP project. They became employees of the respondent. When the respondent's involvement with the project ended their employment was terminated.
The appellant was employed specifically for the ECUP project and on 7 October 1992 he concluded a written contract of employment with the respondent. Clause

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1 sets out his conditions of employment, and as stated above clause 2.5 provided that the said contract replaced any previous agreement of employment. The appellant then had no other existing contract of employment with the government.
The appellant alleges that not all employees who were employed specifically for the ECUP project were retrenched. He alleges that only two employees were retrenched, and he makes the allegation that this constituted victimisation of the two of them, and an unfair dismissal from their employment. These allegations are not borne out by the documents filed of record. Several workers were retrenched and received their retrenchment packages.
The appellant appeared in person to argue his appeal, and when this was pointed out to him he told us that all but two of the employees who had been retrenched had been re-employed. Some had been employed by Exim Enterprises (Pty) Ltd and others had been employed by the government as drivers and in other capacities. What seems to be clear, however, is that they did not have existing contracts with the government which continued to operate when the ECUP project was terminated. They had to be re-employed. The appellant has, however, not been re-employed by the government or offered employment by Exim Enterprises.
The appellant's claim is brought against the Botswana Technology Centre and not against the Ministry. The Botswana Technology Centre (the respondent) cannot

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prescribe to the Ministry what to do and cannot order the Ministry to re-employ the appellant. If the appellant had any claim at all it would be against the Ministry, but for the reasons set out above it would seem that he would have no claim against the Ministry either.
Concerning his retrenchment, all aspects thereof were considered by the Industrial Court and the conclusion reached was that the correct procedures had substantially been adopted, that the termination of the appellant's employment was substantively fair, that he had not suffered any prejudice and that he was not entitled to any of the orders sought by him. We are not persuaded that the Industrial Court erred in its findings.
The appellant has qualification! skills and experience and he tells us that he cannot obtain any permanent employment because of a perceived stigma resulting from the fact that he was retrenched. This is unfortunate since it is clear from the papers that his retrenchment was not due to any fault on his part. It was because the project he was working on was discontinued. Unfortunately there is nothing that the courts can do to assist him.
The result is that the appellant's appeal is dismissed with costs. Delivered in open Court at Lobatse this .^.^day of July 2002.

N. W. ZIETSMAN JUDGE OF APPEAL
I agree:        
P. H. TEBBUTT ACTING JUDGE PRESIDENT
I agree:        
F. M. GROSSKOPF JUDGE OF APPEAL

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