BOSETU bullies workers 

An Industrial Court judgment delivered on Friday, in a matter between Sydney Mogapi and his employers Botswana Sectors of Educators Trade Union (BOSETU) represented by Charles Tsiane exemplifies how members’ subscriptions are being wasted by a faction in the new leadership on petty internal fights. 

Mogapi’s case, which is one of four similar cases of unfair suspensions where the dominant faction in the new leadership of BOSETU NATEX are purging employees at the union offices under suspicion that they are pro the old guard. Mogapi is the General Manager, Commercial Division employed in March 2023, while Tsiane is a member of the National Executive Committee holding the position of Vice President (BOSETU’s Vice President). At the National Executive Committee (NATEX) elections during BOSETU Congress in Palapye last year, the faction led by Tsiane won 11 seats against five (5) retained by the faction of returning NATEX members among them Winston Radikolo as President, Tobokani Rari -Secretary General, and three others. 

Four executive employees were suspended by a section of BOSETU NATEX last month based on an anonymous letter written by a faceless source without any evidence to support it, making wild allegations against them. 

The Industrial Court dismissed Mogapi’s suspension as unlawful, and a violation of labour procedures contained in BOSETU Constitution by Tsiane and nine others who had voted approving the decision. Besides violating clear and simple procedure for suspension as laid out in BOSETU Constitution, the 10 NATEX members had disregarded the fact they did not form the requisite 2/3 members to form a quorum. 

The Patriot on Sunday can confirm that in one of the four cases, the lawyer representing the employee who won their case has already slapped BOSETU with an Invoice of around P225 000. With the foregoing, should the remaining cases of unlawfully suspended employees go a similar route, that is BOSETU losing them with costs, the trade union could soon be facing legal bills in excess of P1 million. All those millions of members’ funds wasted on cases fighting BOESTU employees- a trade union purporting to be the epitome of protecting workers rights and fair labour practices. 

Factual background 

Gathered from the full set of affidavits filed, it is common cause that the hierarchy of authority and supervision at BPSETU head office or headquarters is as follows: Mogapi , being the General Manager- Commercial Department, is under the direct supervision of the Executive Director (Mr Phatshwane); The Executive Director is directly supervised by the Secretary General (Mr Tobokani Rari); The Secretary General reports to respondent’s National Executive Committee (NATEX); and The President of the BOSETU is Mr Winston Radikolo, and the Vice President is Charles Tsiane (2nd respondent). 

On the 6th December 2024 members of the Executive Committee received an anonymous letter through their email addresses. The letter purported to be from some employees of respondent who had decided to be faceless and remain in the shadows for fear of victimization. In the letter, the faceless employees made serious bombshell allegations to the effect that some senior executives were blatantly committing serious acts of misconduct, such as ill-treatment of employees, corruption, bribery, pilfering of respondent’s funds, nepotism, factionalism, sexual harassment, sexual perversion etc. The letter listed applicant as one of the culprits. 

The anonymous letter demanded punitive action against the applicant and the other senior executives who had been identified as the culprits. Respondent responded positively by holding an executive committee meeting 6 days later, on the 12th December 2024, to discuss the explosive contents of the anonymous letter and the way forward. 

Another executive committee meeting was held on the 31st January 2025. At this meeting the anonymous letter was not exhaustively addressed, meaning that there was a need for yet another meeting. That subsequent meeting was convened on the 5th February 2025. 

What transpired at that meeting of the 5th February 2025 and the resolution adopted therein, has erupted into a hotbed of explosive conflicting averments, allegations and opposing interpretations. The court must make findings of what actually happened at that National Executive Committee meeting. 

Be that as it may, it is common cause that on the 7th February 2025, the 2nd respondent (Charles Tsiane) wrote a letter to applicant, suspending him with immediate effect, pending the investigations into the allegations made in the anonymous letter; On the 8th February 2025 the suspension letter was served on the applicant, and on the 10th February 2025 applicant launched the present application on a certificate of urgency. 

This is as far as the story lines of the parties converge. The parties disagree as to the other facts that are relevant to this application. The epicenter of those contested facts is what really transpired at respondent’s National Executive meeting of the 5th February 2025 and how the events that unfolded thein should be interpreted. Two diametrically opposing versions of what happened at that meeting and how it should be construed have passionately been laid by the parties in their papers. Both versions have been recounted through sworn affidavits. As a general rule affidavits are sworn statement of facts. What is of interest herein, and yearns for the court’s determination, is that the parties have sought to present diametrically opposite facts describing the same event of the 5th February 2025. Logic dictates that an event must be described by one set of internally and inherently consistent facts, and not two sets of facts that oppose each other. 

Plascon-Evans rule 

Tsiane and BOSETU submitted that the court must apply the PlasconEvans rule to the affidavits before it, and that in doing so it must make factual findings in their favour, in particular that the precautionary suspension is factually and legally valid. The Plascon-Evans rule states that in court applications when factual disputes arise relief should be granted only if the facts stated by respondent, together with the admitted facts in the applicant’s affidavits justify such an order. 

In applying the Plascon-Evans rule in casu the outcome is as follows:- There is in fact no dispute with respect to what happened at the executive committee meeting of the 5th February 2025. Respondents, through the affidavit of 2nd respondent, are in full agreement with the applicant that only 10 members voted in favour of the precautionary suspension, and that the other 4 abstained; and by the time the same 10 members voted on the modalities of how the suspension would be implemented that same group of 4 had left the meeting. 

The above demonstrates that the essential and material facts averred in the affidavit of the applicant have been admitted by the respondents. The inherent credibility of applicant’s averments is duly, demonstrated by 2nd respondents’ answering affidavit confirming those averments. For the above reasons the Plascon-Evans rule does not apply, and it is unhelpful to respondents, because there are no genuine, real or bona fide disputes of facts between the parties. In any case even if it was assumed that there were such disputes, and the Plascon-Evans Rule applies, applicant’s facts admitted by respondent together with the facts alleged by respondent justify that a relief, including a final interdict, can competently be granted herein without going to trial. Therefore, whether the Plascon-Evans Rule is applied or not applied, the difference is juridically the same. 

Unprocedural suspension 

This part of the ruling is prefaced with the legal status of an employer’s disciplinary code. An employer has the right to set out rules and standards of behaviour at his workplace in a disciplinary code. A proviso to this right is that the code so formulated must comply with the standards of fairness and pay due respect to fairness as well as the rights of the employee. 1st respondent has in place and in operation grievance and disciplinary procedures (a disciplinary code). Applicant’s case is that respondents failed to comply with the provisions of this disciplinary code. Respondents have insisted that they have indeed followed the disciplinary code in suspending applicant. The question then becomes: can an employer deviate from his or her disciplinary code when taking action against an employee? The subsequent question is: if the employer is indeed entitled to deviate from his or her disciplinary code, to what extent or degree can he or she do so? In answering these questions two learned labour and employment law scholars from South Africa, Le Roux and Van Niekerk, in their book, The South African Law of unfair dismissal, at page 155, stated the legal position as follows:- 

The law on disciplinary codes is as follows:-An employer has the right to formulate a disciplinary code, but that code must not breach any enforceable law, and must comply with the standards of fairness (substantive and procedural). An employer must, as a general rule, comply with the provisions of his or her disciplinary code to the letter. This is because the disciplinary code is part of the terms and conditions of an employment contract, and it is legally binding on the employer. An employer who wriggles out of his or her disciplinary code commits an unfair labour practice. 

There are exceptions to this general rule of compliance with the disciplinary code. It is under these exceptions that a disciplinary code need not be interpreted with the precision of a statute. It is under these exceptions that the code need not be followed slavishly. The first exception is where the deviation from the code is advantageous to or enures to the benefit of the employee. This is where an employer exercises his or her rights under the code flexibly in an equitable manner that trumps a legalistic approach in favour of an approach that yields to equity, fairness, reasonableness and substantive justice for an employee. The second exception is where a deviation does not prejudice an employee in the enjoyment of his or her workplace rights. The third at this stage is the legal requirements of a precautionary suspension. 

Pre-cautionary suspension 

A precautionary suspension is an interim measure imposed by an employer on an employee, not as a disciplinary sanction, but for reasons of orderly administration at the workplace. A precautionary suspension may be imposed only when an employer suspects that an employee might have breached its disciplinary code or the terms and conditions of his or her employment. The requirements of a valid precautionary suspension are as follows: 

The suspicion that an employer might have breached the employer’s disciplinary code or the terms or conditions of employment must be reasonable, meaning that it must be anchored or based on reasonable grounds (or ground). At the workplace an employee has the right to fair labour practices. A precautionary suspension which is not based on any reasonable ground constitutes an unfair labour practice, and it is unfair and invalid. 

The precautionary suspension must make strategic administrative sense. In other words just because a reasonable suspicion exists does not mean that the suspension must automatically be effected. In some cases it is perfectly possible to investigate misconduct allegations against an employee without having to suspend him or her. There must therefore be a demonstrably fair reason for keeping an employee away from workplace pending investigations. One such fair reason is laid out at paragraph 5.1 of the model Disciplinary and Incapacity Policy and Procedures. This code has been promulgated by the minister responsible for the labour portfolio pursuant to section 53 (1) of the Trade Disputes Act of 2016, and the Industrial Court is obligated by subsection (2) of the same section to apply the model code. The fair reason stipulated at the said paragraph 5.1 provides as follows:- 

“An employee may also be so suspended if the employee’s presence would obstruct the investigation into the alleged offence or if the employee’s presence could create difficulties at the workplace”. 

If the employer has a disciplinary code in operation governing precautionary suspensions then he or she must comply with it when suspending an employee. The disciplinary code forms part of the employee’s employment contract, and it is binding on the employer. In applying the above stated law to the case in casu, the outcome is as follows:- 

The grievance and disciplinary procedures of the 1st respondent forms part of applicant’s terms and conditions of his employment contract. They are therefore binding on the respondent. 

Laid out Procedure 

The disciplinary code does not provide for the sort of a grievance procedure in which anonymous and faceless letters against an employee are concocted by shadowy figures in the eerie comfort of darkness, placed before the executive committee that resolves to suspend such an employee. There is no doubt that applicant was bundled out of 1st respondent’s workplace through a process that constituted a blatant violation of the above quoted grievance procedure. For instance the grievance procedure provides for an aggrieved employee who shows up his or her face when raising a grievance but respondents acted on grievances of faceless or shadowy employees lurking in darkness. For the respondents to thumb their noses at a grievance procedure that they formulated, and which forms part of applicant’s employment contract, was unfair. This constitutes an unfair labour practice. The outcome of such an un-procedural conduct being the precautionary suspension, cannot be allowed to see the light of day. This was not a proper suspension. This was a bundling out which violates 1st respondent’s code. The suspension is therefore null and void. 

Secondly, a grievance is defined as a “feeling of dissatisfaction or unjust treatment by an employee about their work, workplace or a person they work with.” The question here becomes “which employee of the 1st respondent has come forward with a feeling of dissatisfaction or unjust treatment?” The anonymous letter was authored by shadowy faceless figures in the dark, and it cannot be said that they showed any feelings of dissatisfaction or unjust treatment in that darkness. The shadowy employees could not show up their faces to any supervisor and express their dissatisfaction or unfair treatment. It is also impossible to tell who the supervisors of these shadowy figures are. Effectively no recognisable employee has expressed any feeling of dissatisfaction or unjust treatment about his or her work. Put differently, no realistic grievance has been raised. 

Thirdly, the respondents bungled the suspension of the applicant. Clause 8.1.5 of the Disciplinary Code states in the following simple terms how an employee, such as the applicant should be suspended:- “8 .1. 5 Suspension. Suspension may be instituted for an investigation to be carried out in the event that a serious transgression is suspected so that the alleged employee does not temper with investigations. The suspension will be on full pay and not be for more than one (1) month. 

The authority to institute suspension pending investigation shall be done by the Executive Director or General Manager in consultation with the Secretary General. In case the transgression is suspected to have been done by the Executive Director or General Manager the suspension shall be instituted by the Secretary General in consultation with NATEX”. 

The respondents failed to comply with these rather simple steps of suspending applicant pending investigations. The Secretary General is not the one who suspended the applicant (a General Manager). It also goes without saying that the Secretary General never consulted NATEX. 2nd respondent has explained that the reason why he had to personally write the suspension letter and serve it was because the Secretary General, Tobokani Rari, had refused to do so. That explanation is unfortunately preposterous because he should have dealt with the refusal instead of wading through an irregularity to reach out to the applicant, and thereby trampling over a clearly laid out grievance procedure. With this manner of suspension that violated the grievance procedure applicant was bundled out of the workplace. The suspension is therefore unlawful, unfair and null and void. 

Fourthly, did the respondents reasonably suspect that the applicant had committed all those alleged acts of misconduct (breached the disciplinary code) recounted in the anonymous letter? Was the suspicion based or anchored on any reasonable ground? The answers to these two questions must logically be in the negative. This is because it was impossible for respondents to form a reasonable suspicion on the basis of a letter that had been authored by faceless shadowy employees who insisted to remain lurking in darkness. The respondents are not even sure that this faceless and nameless letter coming out of the dark shadows was indeed authored by the employees of 1st respondent. For all they knew, and they did not demonstrate otherwise in their papers, the anonymous letter could be having absolutely nothing to do with any of the employees of BOSETU. 

Applicant’s suspension might be based on nothing. Suspending an employee on the basis of a letter whose origin and identity are unknown and unproven constitutes an unfair labour practice and should not be allowed at the workplace. It must be pointed out that the workplace would become a risky and dangerous place for employees if anonymous letters from the shadows of darkness were allowed to be used to suspend employees pending investigations into those faceless allegations coming from those dark shadows. 

Granted, whistle blowers are comfortable in the dark shadows and they must be protected deep in that space. But the employer must, at least as a general rule, secretively investigate the allegations of a whistle blower to establish a credible basis for suspending an employee who is implicated. These whistle blower allegations must be probed further, and should not be used in their raw untested form to suspend employees. In other words, even if the authors of the anonymous letter were treated as whistle blowers that was not a sufficiently fair reason to suspend applicant, because the allegations were used in their raw untested form without any credible basis. The reasonable suspicion therefore did not exist. Fifthly, did the precautionary suspension of applicant make any strategic administrative sense? Was there a fair reason for keeping applicant away from the workplace pending investigations? The answers to these questions must be answered in the negative because keeping an employee away from the workplace on the basis of allegations made by people who chose to facelessly remain in darkness can never be a demonstrably fair reason. It would not be fair to use allegations made by shadowy faceless people to reason that the employee in question would interfere with investigations. It makes no administrative strategic sense to suspend an employee so as to investigate allegations whose source is darkness. There is therefore no reasonably fair basis for suspending applicant with the intention of preventing him from interfering with investigations. This is yet another reason for confirming that the precautionary suspension of the applicant is unfair. 

From the above reasons the finding of the court is that the suspension of the applicant is unfounded, unlawful, unfair and it is liable to be set aside. The next issue to be determined by the court is whether or not this application must be heard urgently. 

Judgment 

“Based on the foregoing findings and analyses the determination of the court is as follows:-This application is declared to be urgent; The letter dated the 7th February 2025 through which applicant was placed on a precautionary suspension is declared to be unlawful and unfair, and it is accordingly set aside; Applicant’s suspension is declared to be unlawful and it is accordingly set aside; and Respondents (BOSETU and Tsiane) are permanently interdicted and restrained from taking any action arising from or in connection with the nullified letter of the 7th February 2025,”reads part of the judgment. 

BOSETU bullies workers