Former employee wins dismissal case against gov't
Goitsemodimo Kaelo | Tuesday July 25, 2023 06:00
Justice Nthomiwa Nthomiwa of the Maun High Court has ordered government to reinstate Shamu to his Principal Accounts Officer post and remunerated all his dues lost since his sacking.
Shamu, who was stationed in Letlhakane before his dismissal from the public service in 2022, was sacked on allegations of misappropriation of government funds amounting to P6,184.15.
He was dismissed by the Permanent Secretary (PS) at the Ministry of Finance and Economic Development, Dr Wilfred Mandlebe following a disciplinary hearing process.
This was despite the chairperson of the disciplinary hearing Tumelo Molelekwa recommending that Shamu be suspended from duty without pay for a period not exceeding one month.
Following his sacking, Shamu, who is a member of the Botswana Public Employees Union (BOPEU) then approached the court seeking a review of the decision to be set aside on the grounds of irrationality, illegality, and irregularity.
He also wanted an order to be reinstated to his previous post and be paid attendant back pay and entitlements from the date of dismissal to the date of reinstatement.
It was his contention that there was no synergy between the alleged offence, charge, evidence and conviction upon which he could be fired. Shamu also believed that the PS ignored all evidence that suggested he could have been a victim of framing by his erstwhile boss and head of station, Gobitsa Gape as there was evidence that the reversals were conducted through possible passwords cloning and funds going missing under the watch of the Treasurer Cashier. His pleas were all opposed by the State in court.
However, Nthomiwa ruled in Shamu’s favour ordering that he be reinstated to his position and be paid attendant back pay and entitlements from the date of dismissal to the date of reinstatement. In his judgment, Nthomiwa said that in his view the PS erred in his decision to summarily dismiss Shamu without giving him the ‘show cause why’ opportunity.
The judge also found that the PS acted in breach of the audi alteram partem rule, which translates to “let the other side be heard as well” when he arrived at the decision. “It was submitted that as further proof to the breach of the audi alteram partem rule, the first respondent wrongly advised the applicant (in effect a denial of the right to appeal) to appeal to the Public Service Commission,” read part of Nthomiwa’s judgment. He continued: “In terms of the Public Service Charter Principle D on Transparency, the first respondent was required to refer the applicant to the correct appeal.
The former failed in his duty (procedurally) by referring the applicant to the Public Service Commission”. According to Justice Nthomiwa, Section 7 of the Public Service Act (PSA) on affording every employee a reasonable avenue of redress against improper or unreasonable administrative decisions, echoes Public Service Charter Principle D. The judge said an adverse decision stemming from the first respondent is then destined to the Director of Public Service Management followed by a further appeal to the Permanent Secretary to the President and only then to the Public Service Commission. “In view of the above, they submitted that direction to a wrong forum of appeal is as good as not affording an appeal right. It being the duty of the committee responsible for a disciplinary hearing to direct the applicant to the right forum where he could get redress,” he said.
The judge also found that it was irregular for the chairperson of the disciplinary hearing to deviate from the set disciplinary procedure that guides the public service in handling disciplinary matters.
This, he said, went on despite notable protestations by Shamu’s trade union representative. Nthomiwa said the deviation took the form of reopening the matter for further evidence and witnesses statement, which were never shared with Shamu. When ordering reinstatement, Nthomiwa said in his view, the relationship between Shamu and his employer had not broken down irretrievably. “The applicant on the Cl salary scale, was not in a very senior position and there are several layers of positions between him and the first respondent. As such, no special or close relationship exists between the applicant and the first respondent,” the judge ruled.