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 mustpossess the virtue of clarity and certainty. Courts have a duty to ensure that thelaw 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 o fthe 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 find 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 longterm solution and the former the interim measure. To put the analysis in proper perspective, we discuss the decisions in their chronological order. The study isdivided into three sections. Section I explains the relevant statutory provisions. Section II is a study of the case law relating to fixed term contracts. Section III looks at indefinite period contracts and contracts for specified piece of work. In the conclusion, we make recommendations.