Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 357, Junio 2010

1. 230. The complaint is contained in a communication from Education International (EI) and the Botswana Teachers’ Union (BTU) dated 24 June 2009. The ITUC supported the complaint in a communication dated 30 June 2009.
2. 231. The Government forwarded its response to the allegations in a communication dated 17 November 2009.
3. 232. Botswana has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 233. In a communication dated 24 June 2009, the complainant organizations, EI and the BTU, raise the following alleged shortcomings in respect of Convention No. 87.
2. 234. The complainants deplore that the Government interfered in the internal organization of the BTU and discriminated against one of its trade union leaders by making the President of the BTU, Mr Japhta Radibe, retire in order to prevent him from heading the teachers’ union, in breach of Articles 3 and 4 of Convention No. 87.
3. 235. On two occasions, in 2006 and 2007, the Director of Teaching Service Management (TSM), Mr Opelo Makhandlela, forced Mr Japhta Radibe to retire by means of a letter. The reasons advanced were that Mr Radibe was spending too much time on his union work, which compromised his duties as headmaster.
4. 236. Mr Radibe was first made to retire, at age 49, on 24 October 2006. He was reinstated in his school on 3 November 2006. The President of the BTU was again forced into early retirement by a letter from the Department of TSM dated 7 March 2007. The BTU President was given three months’ notice to depart from his position as the headmaster of Sedibelo Junior Secondary School in Mochudi, located in the Kgatleng District. This time, Mr Radibe was not reinstated.
5. 237. EI and the BTU consider this forced retirement a clear violation of the workers’ rights of Mr Radibe and a victimization and intimidation of his leadership as a trade unionist.
6. 238. On 29 March 2007, an international trade union delegation composed of representatives from EI, the Southern African Teacher Organisation (SATO) and the Southern African Trade Union Co-ordinating Council (SATUCC) met with officials from the Department of Labour as well as the Education Minister, Mr Jacob Nkate, to convince him to reconsider his decision.
7. 239. Following the early retirement of its President, the BTU convened a Special Congress in April 2007 to amend the constitution of the union to allow Mr Radibe to keep his position at the leadership of the BTU until the end of his term in 2009. Otherwise, not being active in teaching, Mr Radibe would have had to resign from BTU leadership. In March 2007, Mr Radibe was elected President of the Botswana Federation of Trade Unions (BFTU) because of his firmness at the BTU.
8. 240. In addition to the personal case of the BTU President, the complainants point to information received by the teachers’ union according to which the Director of TSM has identified 14 heads of secondary schools who have been intimidated because of their involvement in trade union activities. Two have been dismissed in 2008: Mr Ruda and Mr Habangana.
9. 241. The complainants add that the President of the BTU was forced into early retirement for speaking publicly against government education policies such as privatization, the double-shift system and the reintroduction of school fees and his denunciation of teachers’ poor working conditions. Mr Radibe also made public comments deploring corruption and maladministration at the Ministry of Education.
10. 242. When he was made to retire, the President of the BTU was denied leave benefits proportionate to his career. He received no benefits and is currently surviving with an early retirement pension allocation which he was able to access only once he turned 50.
11. 243. In March/April 2007, the BTU took up, on behalf of Mr Radibe, the issue of the unfair early retirement to the High Court of Botswana. Mr Radibe requests to be reinstated in his teaching duties and to be given compensation for the lost years in his teaching position.
12. 244. The complainants highlight that it took over six months for the judicial system to declare itself competent, so the court case really started in early 2008, and by June 2008 there had been no hearing. BTU leadership and Mr Radibe are concerned by the postponement of the court case without justification. The delay may actually prevent Mr Radibe from applying for another term at the helm of the BTU.
13. 245. In addition, attempts have been made by the Director of TSM to develop informal contacts with the BTU lawyer. This is perceived to be putting the lawyer under pressure.
14. 246. Mr Radibe is a hard worker and not afraid to take employers head-on over the needs of workers in Botswana. His union activism is well known in the country. Mr Radibe is the President of the SATO and was an executive member of EI’s African Regional Committee.
15. 247. The complainants further condemn the Government’s interference in the internal organization of the BTU through its prevention of the union’s President from attending major international trade union meetings, such as the EI regional conference in Cairo in January 2007, for which Mr Radibe was denied a visa.
16. 248. Lastly, the complainant organizations indicate that they are lodging this complaint to remind the Government of Botswana of its responsibility to uphold international labour standards and fulfil its obligations to respect and ensure freedom of association.

B. The Government’s reply

1. 249. In a communication dated 17 November 2009, the Government denies having at any time interfered in the affairs of the BTU. This is evidenced by the promptness with which the Government granted recognition to the BTU as soon as it was a registered trade union. The Government has always allowed for the secondment of officers to the BTU.
2. 250. The Government states that the Director of TSM as the employer of teachers has the responsibility to ensure that there is compliance in the service and that non-performers are called to account for their misconduct, regardless of their union affiliation. The Government rejects the allegation that the 14 school heads were retired for their involvement in trade union matters. These persons were school heads of poor performing schools, the performance of which was a result of poor leadership, and their employer is not even aware that they were members of any trade union.
3. 251. The Government refers to two of the 14 cases. One case involved a teacher, Mr Ruda, who left the service after attaining forced retirement at the age of 65 years. Another case involved a teacher, Mr Habangana, who was retired after displaying behaviour unfit for his professional obligations, in that, in the process of punishing three girl students, he ordered them to undress in front of him, which was viewed as a gross misconduct.
4. 252. The Government asserts that Mr Radibe was never discriminated against for his trade union involvement. All employed teachers are expected to attend to their official duties. Mr Radibe had completely abdicated responsibility and was busy with social events that had nothing to do with the cause of teachers. He was more of an absentee school head and had been warned without success in this regard.
5. 253. The Government concludes that Mr Radibe was retired solely for neglect of duty. The decision as to whether the retirement or benefits of Mr Radibe were proper or improper is yet to be determined in the court, but meanwhile he remains retired.
6. 254. With regard to the BTU legal case, the Government indicates that the judicial system regulates its own procedures and the Director of TSM cannot interfere with them. It considers the allegation that the Director attempted to befriend the lawyer of the BTU as a misrepresentation of facts.
7. 255. In relation to his union representation activities, Mr Radibe was requested to prioritise his activities and meetings in view of the fact that he was also an employee and had work to do. The allegation that Mr Radibe was denied a visa by the Government is refuted by the fact that the Government of Botswana does not issue visas for its citizens to visit foreign countries. The process of issuing visas is the responsibility of the embassies of foreign countries.

C. The Committee’s conclusions

1. 256. The Committee notes the complainants’ allegation that the Government forced Mr Japhta Radibe, President of the BTU, into early retirement from his position as the headmaster of Sedibelo Junior Secondary School in Mochudi, Kgatleng District, in order to prevent him from heading the teachers’ union. On two occasions, the Director of TSM allegedly made Mr Radibe retire at age 49 by means of a letter: (i) on 24 October 2006, he was forced to retire but was reinstated in his post on 3 November 2006; and (ii) on 7 March 2007, he was again forced into early retirement with three months’ notice. The complainants add that an international trade union delegation composed of representatives from EI, the SATO and the SATUCC met on 29 March 2007 with officials from the Department of Labour as well as the Minister of Education and tried to make the Minister reconsider the decision. The Committee notes that Mr Radibe was not reinstated, was denied leave benefits proportionate to his career and is currently receiving an early retirement pension allocation which he was only able to recieve at the age of 50. The Committee further notes that, according to the complainants, in April 2007, the BTU convened a meeting to amend its constitution so as to allow Mr Radibe who had also been elected President of the BFTU in March 2007, to keep his position as BTU leader until the end of his term in 2009, although not active in teaching.
2. 257. The Committee notes the Government’s reply that it has never interfered in the affairs of the BTU, which, it states, is evidenced by the promptness with which the Government granted recognition as soon as the BTU was a registered trade union, and that it has always allowed for the secondment of officers to the BTU. The Committee further notes that, according to the Government, Mr Radibe was retired solely for neglect of duty and was never discriminated against for his trade union involvement. Instead of attending official duties, Mr Radibe had completely abdicated responsibility being busy with social events not related to the cause of teachers and had been warned without success in relation to his absences. The Government adds that the decision on the appropriateness of the retirement or benefits of Mr Radibe is yet to be determined in the court, but that meanwhile he remains retired.
3. 258. The Committee observes that there is a contradiction between the information provided by the complainant and that of the Government, and that in neither case was any documentary evidence or relevant decisions or court judgements (such as the decision to reinstate after the first forced retirement) provided. While the reason advanced by the Government for his early retirement was that Mr Radibe was spending too much time on social events unrelated to the cause of teachers, which compromised his duties as headmaster, the complainant organizations allege that he was forced into early retirement for speaking publicly against government education policies (e.g. privatization, doubleshift system and reintroduction of school fees), poor working conditions of teachers, as well as corruption and maladministration at the Ministry of Education.
4. 259. The Committee however, remains deeply concerned by the allegations that the Government forced Mr Radibe, President of the BTU, President of the SATO and former executive member of EI’s African Regional Committee, at age 49 into early retirement from his position as a school headmaster. The Committee points out that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom. The Committee wishes to recall that not only dismissal, but also compulsory retirement, when imposed as a result of legitimate trade union activities, would be contrary to the principle that no person should be prejudiced in his or her employment by reason of trade union membership or activities [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 793 and 799].
5. 260. In this regard, the Committee notes the allegation of the complainant organizations that the court case of Mr Radibe concerning unfair early retirement is being delayed without justification. In March/April 2007, the BTU took up the case, on behalf of Mr Radibe, before the High Court of Botswana and requested Mr Radibe’s reinstatement in his teaching duties and compensation for the lost years in his position. The complainants denounce that it took the judicial authority over six months to declare itself competent, and by June 2008 there had been no hearing. In addition, attempts have allegedly been made by the Director of TSM to develop informal contacts with the BTU lawyer, which is perceived as putting the latter under pressure. The complainants add that the delay might actually prevent Mr Radibe from applying for another term at the helm of the BTU. The Committee also notes the Government’s indication that the Director of TSM cannot interfere with the judiciary, since the judicial system regulates its own procedures, and that it is a misrepresentation of facts to allege that the Director of TSM attempted to befriend the lawyer of the BTU.
6. 261. The Committee deeply regrets the delay in the processing of the case of Mr Radibe before the High Court of Botswana. It recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned. The Committee considers that the longer it takes for such a procedure to be completed, the more difficult it becomes for the competent body to issue a fair and proper relief, since the situation complained of has often been changed irreversibly, people may have been transferred, etc, to a point where it becomes impossible to order adequate redress or to come back to the status quo ante. The Committee draws the Government’s attention to the fact that, in a case in which proceedings concerning dismissals had already taken 14 months, the Committee requested the judicial authorities, in order to avoid a denial of justice, to pronounce on the dismissals without delay and emphasized that any further undue delay in the proceedings could in itself justify the reinstatement of these persons in their posts [see Digest, op. cit., paras 821, 826 and 827].
7. 262. In view of the fact that three years have elapsed since the lodging of the case by the BTU before the High Court of Botswana, the Committee requests the Government to take all measures within its power to ensure that the ongoing judicial proceedings regarding the allegedly unfair early retirement of Mr Radibe are swiftly concluded and a decision handed down without any further delay. Should it be found that Mr Radibe was forced to retire due to his exercise of legitimate trade union activities, the Committee urges the Government to take the necessary steps to ensure that he is fully reinstated in his position as a headmaster without loss of pay. In the event that the reinstatement of Mr Radibe would be impossible for objective and compelling reasons, the Committee requests the Government to ensure that he receives adequate compensation so as to constitute a sufficiently dissuasive sanction against anti-union discrimination. The Committee requests to be kept informed of the final outcome of the judicial proceedings and of all measures of redress taken.
8. 263. As regards the alleged interference in union representation activities by preventing the BTU President from attending major international trade union meetings, such as the EI regional conference in Cairo in January 2007, for which Mr Radibe claims he was denied a visa, the Committee notes the Government’s response that Mr Radibe was only requested to prioritize his activities and meetings in view of his duties as an employee. The Government refutes having prevented Mr Radibe from attending the EI regional conference in Cairo, since the Government of Botswana does not have the discretion to issue visas for its citizens to visit foreign countries. The Committee recalls that leaders of organizations of workers and employers should enjoy appropriate facilities for carrying out their functions, including the right to leave the country when their activities on behalf of the persons they represent so require (moreover, the free movement of those representatives should be ensured by the authorities), and that participation by trade unionists in international trade union meetings is a fundamental trade union right and governments should therefore abstain from any measure, such as withholding travel documents, that would prevent representatives of workers’ organizations from exercising their mandate in full freedom and independence [see Digest, op. cit., paras 749 and 153]. The Committee requests, in view of the above, the complainant organizations to provide additional substantive information in relation to this allegation. In the absence of any such information, the Committee will not pursue the examination of this aspect of the case.
9. 264. Finally, the Committee notes the allegation that 14 heads of secondary schools have been intimidated by the Director of TSM because of their involvement in trade union activities, of which two (Mr Ruda and Mr Habangana) have been dismissed in 2008. The Committee also notes the Government’s indication that the Director of TSM, as the employer of teachers, has the responsibility to ensure that there is compliance with service duties and that non-performers are called to account for their misconduct, regardless of their union affiliation. The Government rejects the allegation that the 14 school heads were retired for their involvement in trade union matters affirming that the employer is not even aware that they were union members, and that the relevant schools were performing poorly as a result of poor leadership. The Committee further notes that, according to the Government, Mr Ruda left service after attaining forced retirement age (65 years), and Mr Habangana was retired following gross misconduct, whereby in the process of punishing three girl students, he ordered them to undress in front of him. In these circumstances, and unless the complainant organizations provide additional substantive information in relation to this allegation, the Committee will not pursue the examination of this aspect of the case.