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Botswana - Substantive requirements for dismissals

Substantive requirements for dismissals (justified and prohibited grounds) - Botswana - 2018    

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Obligation to provide reasons to the employee: Yes
  • Sec. 11(10) of the Code of Good Practice on Termination of Employment provides that if the employee is dismissed, the employee must be given the reason for dismissal and notified of the right to refer a dispute concerning the wrongfulness of the dismissal to the Office of the Labour Commissioner.
    Although there is no general provision in the EA on the obligation to give the employee the reasons for dismissal, this obligation is implied from several provisions of the Code of Good Practices on Dismissal.
    See sec. 25(2)EA. when an employer forms an intention to terminate contracts of employment for the purpose of reducing the size of his work force, he shall forthwith give written notice of that intention to the Commissioner and to every employee to be or likely to be directly affected by the reduction.

Valid grounds (justified dismissal): any fair reasons
  • Sec. 3(6.1) & (6.2) of the Code of Good Practice on Termination of Employment provides that in a contract for an unspecific period, a dismissal is not wrongful if it is effected for a fair reason and in accordance with fair procedure. There are normally only 3 recognised grounds of dismissal for a fair reason: misconduct, incapacity; including poor work performance or ill health or injury; and operational requirements.

    The Code of Good Practice further provides guidance on substantive considerations, which may be described as fair reasons, for the determination of whether an employee should be dismissed on the grounds of misconduct (sec. 6); incapacity due to poor work performance (sec 8) or ill health (sec. 9); and incompatibility (sec. 10).

    Sec. 26(4) of the EA provides that the term "serious misconduct"means: wilful disobedience of lawful and/or reasonable orders given by the employer; wilful, express or implied, misrepresentation by the employee in respect of his skills or qualifications; habitual or wilful neglect of duties; acts of theft, misappropriation or wilful dishonesty against the employer, another employee, or a customer or client of the employer; acts of violence; damage caused wilfully or by gross negligence to movable or immovable property of the employer; wilful disclosure of confidential information or trade secrets where such disclosure is or is likely to be detrimental to the interests of the employer; inability to carry out normal duties, due to the consumption of alcohol or habit-forming drugs; wilful refusal to obey or comply with any safety rules or practices for the prevention or control of accidents or diseases; consistent work performance below average despite at least two written warnings; offering or receiving bribes; persistent absence from work without permission provides that no contract of employment may be terminate arbitrarily, without due process and just cause.

    Sec. 14(1) of the Code of Good Practices on Discrimination provides that the security of the employment is one of the primary concerns of employees and no contract of employment may be terminated arbitrarily, without due process and without just cause.

Prohibited grounds: marital status; maternity leave; filing a complaint against the employer; race; colour; sex; political opinion; social origin; age; trade union membership and activities; disabilities; HIV status; fulfilling state duties; ethnic origin
  • See sec. 23 of the EA. General prohibition of discrimination on the grounds of marital status; filing a complaint against the employer; race; colour; sex; political opinion; social origin; trade union membership and activities; fulfilling state duties; ethnic origin, age.

    Sec. 116 EA. Prohibition of serving notice of termination of contract of employment during maternity leave.

    Sec. 9(1) of the Code of Good Practice on HIV/AIDS provides that employees with HIV/AIDS may not be wrongfully dismissed solely on the basis of their HIV/AIDS status.

    Sec. 8 of the Code of Good Practice on Discrimination. Dismissals based on employees with disabilities is prohibited.

Workers enjoying special protection: workers' representatives; pregnant women and/or women on maternity leave
  • Sec. 23(b) of the EA provides that an employer may not terminate the employment contract of an employee seeking office, as or acting or having acted in the capacity of an employees' representative;

    Sec. 116 EA. prohibits the dismissal of employees during maternity leave, and/or during leave of absence a longer period due to illness related to pregnancy or childbirth.