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On Friday morning Directorate of Intelligence Services (DIS) suffered a heavy blow as they have to part with substantial amount of Pulas to pay an agent who was unfairly dismissed almost three years ago.
Gaborone High Court judge Godfrey Radijeng has ordered the Directorate of Intelligence Services (DIS) to reinstate Walter Matsoga who was fired in August 2017 and ordered that he be paid arrears and costs of litigation.
Matsoga was retired on medical grounds in 2017 based on the medical assessment carried out in June 2015, two years after the medical assessment was conducted. He then challenged the decision to retire him in court. Delivering judgment, Justice Radijeng said that the decision to discharge Matsoga from duty was based on a more than two year old medical report when his state of health had not been determined at the time.
Judge Dijeng contended that the decision to terminate the employment of the DIS agent was made after an undue delay of two years and no reasonable explanation was given for the delay in taking the decision to terminate his employment on medical grounds. “This is wrong and unlawful as administrative decisions ought to be taken within a reasonable period of time more particularly those relating to employment matters,” he said.
In their heads of arguments, DIS argued that Matsoga was discharged from duty on account of the fact that he had failed to report for duty after he exhausted his sick leaves. On the other hand, Matsoga contended that he abstained from work on the strength of the instructions from his supervisors when he reported for duty, to the effect that he should go back home while the DIS was still preparing for facilities to cater for his wheel chair.
Reading his judgment, Justice Radijeng states that the procedure on whether an employee should be retired on medical grounds, entails an element requiring the employer to consider alternatives short of dismissal. “If, for argument sake, the same medical findings would still stand two years later, then the next thing to do would be to consider alternative ways of retaining the Applicant especially that the report deemed the Applicant capable of discharging secretarial duties,” states Justice Radijeng.
He added that the DIS has not made any indication in its papers that alternatives were considered, an omission rendering their decision procedurally flawed.
Radijeng said that no employee should be subjected to a lax approach by the employer and that section 39 of the Public Service Act does call for promptness in dismissal matters adding that the section is in pari materia with section 26 (1) of the Employment Act.
Matsoga has been rendered paraplegic and unable to perform duties that were detailed in the scope of his employ.
Last year through his lawyers Ndadi law firm, Matsoga applied for review to the High Court on the legality of his termination where he sought the decision of the DIS Director General to be reviewed and set aside and be declared unlawful, null and void.
He also wanted to be reinstated to his erstwhile position and that the DIS pay the costs for the application.
