Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 359, Mars 2011

Effect given to the recommendations of the Committee and the Governing Body

1. 16. The Committee last examined this case at its meeting in June 2010 [see 357th report, paras 230–265]. This case concerns the alleged forced retirement from his post of Mr Japhta Radibe, President of the Botswana Teachers’ Union (BTU) and School Head at Sedibelo Community Junior Secondary School, by the Department of Teaching Service Management (TSM) in order to prevent him from heading the BTU, as well as other harassment and dismissals. At its June 2010 meeting, the Committee made the following recommendations: (a) 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 Mr Radibe is fully reinstated in his position as 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; and (b) the Committee requests the complainant to provide additional substantive information in relation to the allegation that the Government impeded Mr Radibe’s attendance at international trade union meetings.
2. 17. In a communication dated 18 June 2010, Education International provides a copy of the judgment of the High Court of Botswana dated 25 March 2010, which dismisses the application of Mr Radibe against the TSM for unlawful, unfair and wrongful dismissal. In addition, in their communication, the complainants express concern about the economic status of Mr Radibe’s family, as he is now without resources, and about security issues, as they allege that Mr Radibe and members of his family are regularly followed.
3. 18. In its decision dated 25 March 2010, the Court noted that several reasons were advanced by the TSM as to why the compulsory retirement of Mr Radibe was being contemplated, particularly his frequent absenteeism from work. The Court considered that since Mr Radibe was twice given the opportunity to know what prompted the consideration of his retirement and to make representations, as contemplated in section 14(3) of the Teaching Service Act and Regulation 10 of the Teaching Service Regulations, but since he decided to challenge the reasons given without making representations and without answering the factual arguments put forward by the employer, his application against the retirement decision should be dismissed. The Court nevertheless confirmed what the complainants had indicated in their first communication, namely that Mr Radibe was first forced to retire on 24 October 2006 and was then reinstated on 3 November 2006 on the ground that Regulation 10 of the Teaching Service Regulations had not been followed, since the applicant had not made representations in accordance with this regulation. The Court summarizes the subsequent stages of the procedure since November 2006 in the following way:
   • Mr Radibe requested the TSM to furnish the reasons for considering his retirement for the purpose of making informed representations; the TSM wrote back to Mr Radibe, enumerating additional reasons to the ones he had already provided in earlier correspondence as to why his retirement was under consideration; Mr Radibe once more requested further and better particulars to which the TSM replied that Mr Radibe had been afforded ample opportunity to make representations in terms of the Act and the Regulations but had chosen not to do so; and the TSM went ahead and retired Mr Radibe.
   • According to the letter of the TSM dated 3 November 2006, which is reproduced in the Court decision, the TSM justifies its decision in the following way:
   • Your continual absence from your work station is leaving your school in a state of uncertainty, which deprives your school of leadership and compromises the education of students entrusted to you. It has been reported to me that it is quite common for you to make brief appearances at school but a disproportionate amount of your time is spent in conferences, seminars, workshops in and outside the country. On several occasions in public forums you have spoken against Government’s policy as reflected in your opposition to the paying of school fees, a policy which by virtue of your position you ought to support, whether you agree with it or not. While I accept that you are a trade unionist and may take the Ministry of Education or Government to task on issues that concern the welfare of your members, the manner in which you have purported to do this has been inappropriate and contrary to the regulations governing the conduct of teachers … .
   • In addition, in a letter dated 4 December 2006, the TSM indicates that amongst other “numerous incidents”, Mr Radibe left work without permission on three occasions in August and October 2006 to attend a conference or workshop. It also appears from the letters that the Court decision reproduces, which were exchanged between the BTU and the Chief Education Officer in charge of authorizing Mr Radibe’s absence requests, and which were presented by the TSM in support of its decision dated 24 October 2006, that the activities (conferences and workshops) which Mr Radibe requested to attend were unequivocally linked to BTU activities.
4. 19. The Committee takes note of this information. As to the argument put forward by the Government that Mr Radibe spoke against the Government’s policy on several occasions in public forums, the Committee recalls that freedom of expression, which should be enjoyed by trade unions and their leaders, should also be guaranteed when they wish to criticize the Government’s economic and social policy. It further recalls the importance it attaches to the need to grant the necessary time-off facilities to workers’ representatives and that while the granting of such facilities should not impair the efficient operation of the undertaking concerned, Paragraph 10(1) of the Workers’ Representatives Recommendation, 1971 (No. 143), provides that workers’ representatives in the undertaking should be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions. Subparagraph 2 of Paragraph 10 also specifies that, while workers’ representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 157 and 1110].
5. 20. In light of these principles, the Committee notes that, while the main reason invoked by the TSM to justify Mr Radibe’s forced retirement is linked to his frequent absenteeism from work, which can be linked to his trade union mandate, this decision of the TSM was also taken on the ground of certain public statements made by Mr Radibe against the Government’s policy. The Committee understands that the conferences and workshops mentioned in the Court decision dated 25 March 2010, which Mr Radibe requested to attend, were linked to legitimate trade union activities. The Committee also notes that the Court found that, on some occasions, Mr Radibe left his work position without permission to attend such activities. The Committee further notes, from the Court decision, that Mr Radibe failed to make representations in accordance with the relevant regulation as to the decision of the TSM to retire him and did not answer the factual arguments put forward by the TSM to justify his retirement (in particular as to his unauthorized absences from work). Finally, the Committee notes the complainants’ allegations that Mr Radibe and members of his family are regularly followed and fear for their safety.
6. 21. The Committee is of the view that the clear determination between the BTU and the Government on time-off facilities for the exercise of legitimate trade union activities – which would balance the granting of such facilities with the need for the efficient operation of the educational institution Mr Radibe was teaching – would help to avoid further conflicts in this regard. The Committee therefore requests the Government to engage the parties with a view to achieving a joint negotiated settlement of the dispute, including the possible reinstatement of the trade union leader affected, and to keep it informed in this respect. The Committee also requests the Government to immediately undertake an inquiry into the allegation that Mr Radibe and members of his family are regularly followed and to keep it informed on the outcome.