In Issue Number 18 of Andrew Briscoe’s Botswana Labour Law Review, at page 28, we reported on the case of Amadou Oury Bah v Libyan Embassy in which the Industrial Court decided that the Libyan Embassy was not immune from legal action by an ex-employee for breach of its employment obligations to him. A similar conclusion was also reached by the Industrial Court in the more recent case of Olga Dube and Another v American Embassy / BOTUSA [as reported in chapter 28 of Issue Number 25 of Andrew Briscoe’s Botswana Labour Law Review].
In this case, two former employees of the USA Embassy made various claims arising from their alleged unfair retrenchment. The Industrial Court again reviewed the law of diplomatic immunity as it is applied in Botswana and found that since the claim by the two ex-employees was of a private law character which did not challenge a sovereign or public act by the USA, the Embassy was not exempted from liability on the basis of diplomatic immunity. The Court also noted that the USA was a member of the International Labour Organisation, and found that “It is also clear that when a State decides to become a Member of the ILO …, it accepts the fundamental principles embodied in the Constitution of the ILO and the Declaration of Philadelphia; and that a State has an obligation to give effect to the fundamental principles of international labour standards in its embassies, consulates and other offices.”
Having laid down these broad principles
Having laid down these broad principles, the Court then proceeded to consider the merits of the various claims made by the two employees, and made the following determinations:
Claim for a full year bonus: This claim was refused, since a bonus is not a right and is payable at the employer’s discretion unless it is a term of the contract of employment which in this case it was not.
Claim for clearing of personal loans (bank loans and hire purchase loans for furniture etc) which the employees said they committed to following their employment at the Embassy: The Court ruled that no such right is recognised in the labour laws of Botswana.
Claim for six months salary for inconvenience suffered: The Court ruled that no such right is recognised in the labour laws of Botswana.
Claim for damages: The Court again ruled that no such right is recognised in the labour laws of Botswana.
Claim for relocation expenses of “at least P10,000”: The Court found this claim to be another claim that was not recognised in Boswana’s law on retrenchment
Claim for separation pay equal to 2 months salary for each number of years worked as a retrenchment ‘package’: This was another claim not recognised by Botswana’s law on retrenchment, and the Court noted that the Embassy had already paid notice pay to the employees following their retrenchment.
The employee’s claims were therefore all dismissed.
This article is provided for general information only and does not constitute legal advice. Legal advice should be obtained in relation to your specific circumstances.
