GEM Diamonds, a diamond company operating the Ghaghoo mine in the South-Eastern border of the Central Kgalagadi Game Reserve(CKGR) inside the Kgalagadi Desert, has appealed the judgement of the Industrial Court.
In his determination of April 15th, Justice Baruti, declared all the retrenchments already carried out by GEM Diamonds on the mine workers to be “procedurally unfair and therefore void and of no effect.” The mine was further ordered to reinstate all the retrenched members of the Botswana Mine Workers’ Union (BMWU) and “...directed to carry out procedurally fair consultations with the BMWU.” Justice Baruti also ordered the mine to pay the costs of the union. BMWU was represented by Tshekiso Tshekiso and Jani Legal Practice while Moemedi Tafa of Armstrong Attorneys appeared for GEM Diamonds.Contacted for comment last week, Managing Director of GEM Diamonds, Haile Mphusu confirmed that his company was appealing the judgement. He said company lawyers were working on the grounds of appeal after which they will serve the other party.
A follow up on the matter this week however hit a snag as Mphusu’s phone rang unanswered. Talking to this publication this week concerning the appeal, BMWU secretary general Mbiganyi Ramokate said that his union had not yet been served with the appeal papers. “We are aware though that they are appealing,” he said. According to the particulars of the case, during the year 2015, the diamond prices fell drastically necessitating action by the diamond company to stem the losses.On February 5th 2015, GEM Diamonds announced its intention to reduce the workforce by way of retrenchment. The labour union responded by asking to be given time to meet its members before the retrenchment consultations started. A meeting was set for mine management and worker representatives on 10th February but the union representatives did not turn up.
The mine management sent an email enquiring as to when the officers of BMWU would be coming to the meeting but there was no response. The union failed to attend another meeting arranged for 16th February. As the Judge says, at this stage, the relationship between the two parties had degenerated into miscommunication and misunderstanding. However, in some cases, the union representatives failed to attend the meetings on account of the short notice within which the company made its invitation, the judge said. For instance, he wondered how the BMWU was expected to attend a meeting on 11th March after receiving the invitation letter on 10th March considering that while the meeting was to happen at the Ghaghoo mine near the CKGR, the union headquarters is in Selibe Phikwe. Matters came to a head when on March 23rd 2016, GEM Diamonds, issued out a retrenchment notice letter to its employees including those who were members of BMWU stating that the last date of work for retrenched employees would be 31st March.
Baruti observed, “This is the letter that triggered the present urgent application.” While Justice Baruti seems to fault the union for engaging in the game of ducking and diving which involved inexplicably staying away from scheduled meetings, he also seems unhappy with the company’s tendency to refuse to provide BMWU with critical information which could assist the worker union so as to make meaningful suggestions and alternatives to retrenchment. BMWU wrote a letter to GEM Diamonds asking for some five documents. According to the judgement, “At paragraph 6 of the letter, Applicant (BMWU) requested to be furnished with 6 operational documents being total wage bill, audited financial statements, number of employees to be retrenched, production cost and expenditure per department, current operational structure and proposed structure and the current shift configuration system as well as the new one.
This is the usual menu of documents that an employee would require from an employer so as to make meaningful suggestions and alternatives to retrenchment.” Justice Baruti also found that GEM Diamonds failed to ensure that the consultation process was both adequate and fair. And by failing to facilitate such, he said the company did not allow the BMWU to present its own perspectives, alternatives and viewpoints for evaluation before resorting to the ultimate decision of retrenchment. While admitting the obduracy of the union, he noted that when the union sought information, the mine refused to provide it. Justice Baruti noted that disclosure of information is a vital measure to the avoidance of retrenchment, minimisation of the number of retrenchments, a change of the timing of retrenchment, mitigation or amelioration of the effects of retrenchments, selection of the employees to be retrenched and an agreement on severance pay paid to retrenched employees. In his view, the fact that there has never been meaningful engagement between the two parties renders the decision to retrench flawed.
He noted that the interaction between the parties right from 5th March to 23rd March, when retrenchment was announced, “...was tentative, sporadic, superficial and unfulfilling” as information worth consideration was not on the table. “What makes this observation particularly poignant is the fact that by the time the retrenchment was announced, not a single suggestion from Applicant (BMWU) stood on the consultation table.” According to Mphusu, a total of 73 workers will be retrenched. Of that number 66 have already been retrenched while the seven have been saved by the interdict.