Damages for Wrongful Dismissal in Botswana: High Court and Court of Appeal at Loggerheads

Abstract

The law exists to govern human affairs – to perform this function; it must
possess the virtue of clarity and certainty. Courts have a duty to ensure that the
law is clear and certain. An employee whose contract of employment is wrongly
terminated looks to the courts for redress and an award of damages is one of
the available remedies. In this article, we pose the question – what is the rule
for determining the quantum of damages in an action for wrongful dismissal?
Anyone who attempts to locate the applicable rule in quantifying such damages
will soon fi nd himself in a dense bush of disjointed judicial opinion, a territory
where the law, aided and enabled by courts, completely forsakes the all-important
virtues of clarity and certainty. In the labour relations, the law has an additional
function, one of striking a fair equilibrium of power between the employer and
the employee. We argue that it is the employee who suffers more owing to this
lack of certainty in the law. This article focuses on the action for wrongful
dismissal at the High Court. In this article, we examine the jurisprudence of
the High Court and Court of Appeal, and reveal the confusion, contradictions
and blinding defi ance of simple logic. As a solution, we propose that there is
need for alignment and consolidation of principles in this area by the Court of
Appeal or intervention by the legislature, the latter being the preferred long
term solution and the former the interim measure. To put the analysis in proper
perspective, we discuss the decisions in their chronological order. The study is
divided into three sections. Section I explains the relevant statutory provisions.
Section II is a study of the case law relating to fi xed term contracts. Section III
looks at indefi nite period contracts and contracts for specifi ed piece of work. In
the conclusion, we make recommendations.