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PETER v RIVERSIDE HOSPITAL FRANCISTOWN 2012 2 BLR 356 IC
Citation: 2012 2 BLR 356 IC
Court: Industrial Court, Francistown
Case No: IC No 1 of 2012
Judge: Baruti J
Judgement Date: 29 June 2012
Counsel: The applicant in person.rnM Makhale for the respondent.
Flynote
Employment—Employment contract—Relocation expenses—What included under relocation expenses—
Employee's furniture—Employment Act (Cap 47:01) s 32(1), (3).
Headnote
The applicant was recruited by the respondent from Nigeria to be employed as a laboratory
scientist in a hospital owned by the respondent. He commenced employment in Francistown in
October 2009 after the respondent had paid for his travel expenses and that of his family from
Nigeria to Botswana. In February 2012 however, he was charged with serious misconduct and,
after a disciplinary hearing, he was dismissed. He approached the court on an urgent basis
challenging the summary dismissal. The court found in his favour that the dismissal was unfair but it
declined to reinstate him and rather awarded him compensation. As one of the prayers in the
urgent application, the applicant applied for the court to order that the respondent repatriate him
and his
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family to Nigeria. The respondent accepted this obligation but the meaning of repatriation was
never specified in either the employment contract or anywhere else and this led the applicant to
approach the court again to declare that the repatriation required the respondent to pay for the
costs of removing the applicant's furniture to Nigeria as well.
Held: (1) Section 32(1) of the Employment Act (Cap 47:01) provided for repatriation of employees
in certain circumstances at the termination of their contracts of employment. However the section
did not define what repatriation expenses were, other than travelling and subsistence expenses
during the journey and during the period, if any, between the date of termination of the contract of
employment and the date of repatriation.
(2) It appeared to be the intention of the legislature in s 32(1) that it intended to protect the
employee from being left in the lurch after the termination of his contract with no money to return
home. This was reinforced by s 34 which compelled the employer to provide the employee with the
means of transport himself but not the means of transporting his belongings. Section 32(3) was
also an indicator of what the legislature had in its mind and to expand the scope of the repatriation
expenses to include moving the employee's furniture was contrary to the legislature's original
intention and would lead to an absurdity.
The further application was accordingly dismissed with costs. Martex Trading (Pty) Ltd t/a Builders
Merchants Botswana v Lloyd [1998] BLR 201 applied.
Case Information
Cases referred to:
Gabaake and Others v Accountant General and Another [2002] 2 BLR 36, CA
Martex Trading (Pty) Ltd t/a Builders Merchants Botswana v Lloyd [1998] BLR 201
Masole v Newstance Dukwi Butchery (IC 31/04), unreported
Principal Immigration Officer v Hawabn and Another 1936 AD 26
Venter v Rex 1907 TS 910
APPLICATION for an urgent interdict to declare that the respondent was liable to pay for the costs
of the applicant's furniture to be repatriated after the termination of his employment. The facts are
sufficiently stated in the judgment.
The applicant in person.
M Makhale for the respondent.
Judgement
BARUTI J:
Ruling on repatriation
The bone of contention between the parties, which has led to this application, is the meaning and
scope of repatriation in the context of an employee who has to be returned to his place of
recruitment. The applicant's contention, with which he seeks the court to agree, is that repatriation,
in addition to repatriating an employee and his family, includes repatriation of the employee's goods
and personal belongings such as fridges, bedroom suites, stoves, vehicles etc. The respondent,
who has to finance the repatriation, holds a contrary view, which is that repatriation means no more
than repatriating the person of the employee, his family members and their travel luggage. This
court is being called upon to
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make a decision as to which of these two divergent meanings of repatriation is the appropriate one.
In his notice of motion the applicant's prayer is that the court should order the respondent to pay for
the costs or expenses of repatriating his personal goods and effects, being a vehicle, bedroom
suite, fridges, stove etc. to Nigeria, which is the place of his recruitment. In its notice of opposition
and replying affidavit the respondent is opposed to this prayer. Its opposition is on the basis that
repatriation is with respect to the applicant and his family only, for which it is prepared to finance.
Background
To facilitate an effective understanding and appreciation of this urgent application a brief
background is necessary.
The applicant was recruited by the respondent from Nigeria to be employed as a laboratory
scientist in a hospital owned by the latter. He commenced employment at the respondent's hospital
in Francistown, Botswana, in October 2009. The respondent paid for his travel expenses and that
of his family from Nigeria to Botswana. He was however summarily dismissed on 2 February 2012
on allegations that he had committed serious misconduct. The dismissal was subsequent to a
disciplinary hearing at which he faced three counts of serious misconduct.
On 20 February 2012 the applicant approached the court on the basis of urgency challenging the
summary dismissal. His prayers to the court were that: the dismissal be set aside as unlawful, he
be either reinstated or awarded compensation equivalent to the remaining eight months of his
contract, payment of his gratuity and leave days, repatriation of him and his family, damages as
applicable and that he be issued with a discharge and recommendation letter.
On 16 March 2012 the court passed judgment in the case. In the judgment the court ruled that the
applicant's dismissal was unfair. It however refused to reinstate him. The court awarded him
compensation. With respect to the other remedies, with the exception of repatriation, the court
found them to be misconceived and hence their dismissal. The court did not make any specific
order with respect to the applicant's prayer for repatriation.
Repatriation
When challenging his dismissal before the court his founding affidavit stated his prayers as follows:
'My prayer before the court is for the respondent to compensate me for unfair termination by paying for the
remainder of the contract, pay for the full time of my severance benefits/gratuity, leave days
due, repatriates me and my family and other damages as applicable and as well as giving me a
discharge and recommendation letters'. (my emphasis)
The genesis of this application was simply 'repatriates me and my family'. This one phrase prayer,
advanced at the main hearing, did not state the scope of the repatriation. Most notably it is not
provided for in the applicant's employment contract in its opposing affidavit of the main cause the
respondent responded to the applicant's claim for repatriation in the following terms:
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'The respondent acknowledges that the applicant having been recruited from Nigeria has to be repatriated
back (sic) and is very much prepared to do so as it did when it incurred the expenses of bringing him to
Botswana. For this reason the respondent shall pay the fares for applicant and his family and their
luggage to Nigeria. Once again this obligation has never been disputed.'
The respondent's answer to the applicant's prayer for repatriation was that it acceded to it in so far
as its scope was limited to the applicant, his family and their luggage. The respondent did not
elaborate on what was to be entailed in the meaning or scope of luggage. On account of the
respondent's readiness to repatriate the applicant and his family the court found it unnecessary to
make any order. It disposed of the issue of repatriation at paras 8 and 9 of its judgment in the
following terms:
'The respondent has also agreed to repatriate the applicant and his family and to pay the applicant for all
accrued leave earned up to 2 February 2012. What remains for determination therefore are the applicant's
claims for reinstatement, alternatively compensation, the balance of his gratuity, and leave for the period 3
February to 30 September 2012 inclusive, damages and discharge and recommendation letters.'
Thus it was on the assumption that the parties had agreed on the payment of repatriation that the
court did not make any definite order but rather dealt with the other claims that were contested. The
court did not define the scope of the repatriation expenses agreed to between the parties. As it has
now turned out, the parties were not at ad idem on the meaning and scope of repatriation. The
respective positions of the parties have already been alluded to above. The issue therefore before
the court for determination is what then is the meaning and scope of the repatriation? Put differently
does the repatriation mean that which is contended by the respondent or that which is claimed by
the applicant?
Law on repatriation
Section 32 of the Employment Act (Cap 47:01) lays down, at least partly, the law on repatriation.
For present purposes the relevant subsections of s 32 will be quoted and they stipulate as follows:
'(1) Every employee who has been brought to the place of employment by the employer or by any person
acting on behalf of the employer shall have the right to be repatriated at the expense of the employer to
his place of recruitment in the following cases —
(a)
at the expiry of the period of time for which the contract of employment was made;
(b)
on the termination of the contract of employment by reason of the inability of the employer to fulfil
the contract;
(c)
on the termination of the contract of employment by reason of the inability of the employee to fulfil it
owing to sickness, accident or his rejection after medical examination under section 46;
(d)
on the termination of the contract of employment by the employer for just cause, whatever that
cause may be;
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(e)
on the termination of the contract of employment by agreement between the parties, unless the
contract otherwise provides; or
(f)
on the termination of the contract of employment by order of a court, unless the court otherwise
directs.
(2) Where the family of the employee has been brought to the place of employment by the employer or by
any person acting on behalf of the employer, the family shall be repatriated at the expense of the
employer in the event of theemployee being repatriated or of his death.
(3) The expenses of repatriation shall include —
(a)
travelling and subsistence expenses or rations during the journey; and
(b)
subsistence expenses or rations during the period, if any, between the date of termination of the
contract of employment and the date of repatriation.'
There is also s 34(1) which has a bearing on the present enquiry. Section 34 (1) of the Employment
Act states as follows:
'(1) The employer shall provide the means of transport for employees who are being repatriated.'
The above provisions apply to every employee and every employer. These provisions would
therefore apply to the parties before the court, that is, the applicant as the employee (former
employee) and the respondent as the employer (former employer). However, according to s 32(1)
the right of the employee to be repatriated is not available to him in all possible scenarios of the
employer/ employee relationship. Put differently, it is not just any employee under just any
circumstances who is entitled to the right to repatriation. Section 32(1) lists six scenarios or sets of
circumstances or reasons under which an employee would be entitled to repatriation.
These are where the contract of employment is terminated because; (a) it has expired after
effluxion of time, (b) the employer is unable to fulfil the contract (inability to comply with its
obligations), (c) the employee is unable to fulfil his contractual obligations owing to sickness,
accident or his rejection subsequent to a medical examination, (d) there exists a just cause for
terminating the contract by the employer; (e) the parties mutually agree to terminate it, subject to
what the contract provides, or (f) a court has ordered the termination and made appropriate
directions.
If termination of a contract of employment is due to any of the above listed six reasons it is then,
and only then, that the employee has the right to repatriation. If for example, the employee
terminates a contract of employment prematurely without any reasonable ground he would not be
entitled to repatriation because the reason for termination would not fall under any of the stipulated
six grounds. It would also be noted that a prerequisite of the right to repatriation accruing to the
employee's family is that, according to s 32 (2) (cited above), the employee must himself be entitled
to repatriation. The family's right to repatriation can be termed a derivative right in that it is
dependent on the employee's right to repatriation.
In casu the employee's contract of employment was prematurely terminated unlawfully. The
contract ran smoothly until the respondent halted it by subjecting
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the applicant to unprocedurally fair disciplinary hearing and terminating the contract without any
valid reason. Because the respondent illegally removed the applicant from his contract it became
impossible for it (respondent) to fulfil the contract, that is, provide work and pay the salary. The
respondent therefore self-created its own inability to fulfil the contract by illegally stopping him from
working instead of providing him with work and paying his salary.
The termination of the applicant's contract falls under the second of the six reasons listed under s
32(1) above. This means that the employee is in law, entitled to be repatriated at the expense of
the respondent. This is a statutory right, which was created independently of the powers, will or
wishes of the parties. It is a term which automatically forms part of their contract of employment,
even if they had excluded it. If fact by leaving it out in the contract of employment the contract was
made to contain conditions of employment, which are less favourable than what the statute
stipulates.
The Employment Act has an answer for contracts of employment which provide for conditions of
employment less favourable than the minimum floor of rights stipulated in the Act. At s 37 the Act
states as follows:
'37. Where a contract of employment, whether made before or after the commencement of this Act,
provides for conditions of employment less favourable to the employee than the conditions of employment
prescribed by this Act, the contract shall be null and void to the extent that it so provides.'
As this court stated in the case of Masole v Newstance Dukwi Butchery (IC 31/04), unreported at p
2:
'Section 37 of the Employment Act (Cap 47:01) prohibits employers to employ employees at less
favourable terms.'
The employee's right to repatriation at the expense of the respondent therefore forms part of the
contract of employment, despite the fact that the parties did not include it. By the same token, and
given its derivative status, his family's right to be repatriated at the expense of the respondent also
forms part of the said contract. The court is of course mindful of the respondent's willingness to
repatriate the applicant and his family at its expense.
It was however necessary to legally demonstrate that, independent of its goodwill, it was bound by
the law, in particular s 32. to repatriate the applicant and his family at its expense. The next issue
for determination, which was stated earlier on as the bone of contention between the parties, is the
scope of these repatriation expenses. Are they limited to just the air tickets and personal luggage or
should they cover personal belongings such as beds, stoves, vehicle, etc?
Scope of repatriation expenses
Section 32(1) is not helpful in the enquiry as to the scope of the repatriation expenses. All that the
subsection does is to establish the repatriation right and stipulate circumstances or reasons under
which it accrues. Section 32(3) is relatively much more helpful in that it lists some of the repatriation
expenses that the employer must pay. These are travelling and subsistence expenses
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or rations during the journey back home and subsistence expenses or rations between termination
and repatriation dates.
The subsection stipulates only some of the repatriation expenses, hence its opening sentence
states, 'the expenses of repatriation shall include' (my emphasis). It is therefore not helpful in
delineating the scope or full extent of the repatriation expenses that the employer is legally bound
to pay. Put differently the subsection simply states what repatriation expenses include but not what
is excluded. Case law provides some guidance as to the scope of these repatriation expenses.
In the case of Martex Trading (Pty) Ltd t/a Builders Merchants Botswana v Lloyd [1998] BLR 201
Dibotelo J (as he then was) had to decide on the scope of repatriation expenses under s 32(1),
which at the time was s 31(1). In defining this scope he stated as follows at p 209H:
'Although section 33(1)(a) provides for payment by employer of the cost of repatriation of the
employee to the latter's place of recruitment, it does not in my view provide for payment by the employer
for the cost of repatriation or transportation of the personal belongings and goods of the employee to his
place of recruitment. If I am correct in this view, it follows that the parties may incorporate conditions in the
contract of employment as to how the personal belongings of the employee will be transported or shipped
to the employee's place of recruitment when the contract comes to an end.'
The court's view was that the scope of repatriation expenses does not cover transport expenses for
personal goods, such as bedroom suites, stoves, fridges, vehicles etc. Justice Dibotelo's
interpretation accords with the respondent's contention.
Interpretation of section 32(1)
As demonstrated by the divergent views of the parties, s 32(1) seems to be capable of two
meanings. The first restricts the scope of the repatriation expenses to air tickets and travel luggage
whilst the second widens its scope to include expenses for personal belongings such as beds,
fridges, stoves, vehicles etc. It is only appropriate in the circumstances to subject this provision to
the proper tools of interpretation so as to get to its meaning. A fundamental constitutional principle
underlying the existence of one of the three arms of the government being the legislature is that it
enacts statutory provisions with an intention to regulate the affairs of its nation. It uses the words in
the statutory provisions to express its intention. Therefore in interpreting a statutory provision the
court's duty is to ascertain the true intention of the legislature from the words and expressions used
in the provision (see Gabaake and Others v Accountant General and Another [2002] 2 BLR 36,
CA.)
This emphasis on the words and expressions used so as to ascertain legislative intention, underlies
the primary rule of interpretation of statutes, which is this: as a starting point a court concentrates
primarily on the ordinary literal meaning of a provision and if such a meaning is plain and clear then
it should be adopted because it expresses the legislative intent. It is assumed that the legislature
used that ordinary and plain meaning of the words it chose to announce to the world its legislative
intent. (See Principal Immigration Officer v Hawabn and
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Anothers 1936 AD 26). Innes CJ expressed this approach articulately in the case of Venter v
Rex 1907 TS 910 at p 913 when he stated that:
'By far the most important rule to guide courts in arriving at that intention is to take the language of the
instrument, or of the relevant portion of the instrument, as a whole; and, when the words are clear and
unambiguous, to place upon them their grammatical construction and give them their ordinary effect. '
The learned Chief Justice continued, sounding the following warning:
'But it is universally recognised that though this ... is subject to certain exceptions. These arise from the
difficulty — a difficulty inherent in the nature of language - that no matter how carefully words are chosen
there is a difficulty in selecting language which, while on the face of it expressing generally the idea of the
framer of the measure, will not, when applied under certain circumstances, go beyond it, and, when
applied under other circumstances, fall short of it. '
Of course if the ordinary or plain meaning arrived at by the court clearly depicts the legislative intent
the enquiry should cease because the court would have arrived at the precise meaning of the
provision. However, as Innes CJ has observed, the imprecise nature of words and their various
shades of meaning are such that the most carefully selected words aimed at a certain clear cut
meaning and effect can suddenly assume a different interpretation when a different set of
circumstances is thrown at it. Section 32(1) is a typical example of this. The legislature may have
intended that repatriation expenses are only for the person of the employee, his family and
personal belongings that they would luggage in a plane. But when another set of circumstances,
being an employee who has bought a lot of property and desires to take it back, is thrown at the
provision, another shade of meaning may suddenly emerge.
Section 32(1) can either mean repatriation expenses for only a few belongings or for all other
personal properties.
What then should be the approach of the court if a provision is capable of two possible meanings?
Innes CJ in Venter (supra) at pp 914-915 advises the court to embark on the following approach:
' ... when to give the plain words of the statute their ordinary meaning would lead to absurdity so glaring
that it could never have been contemplated by the legislature or where it would lead to a result contrary to
the intention of the legislature, as shown by the context or by such other considerations as the Court is
justified in taking into account, the Court may depart from the ordinary effect of the words to the extent
necessary to remove the absurdity and to give effect to the true intention of the legislature.'
In casu the intention of the legislature in s 32(1), as can be ascertained from the whole scheme of
the Employment Act, was to protect the employee from being left in the lurch at the termination of
his contract with no money to return home. Section 34 makes this intention much clearer when it
compels the employer to provide the employee with means of transport, and not means of
transporting
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his belongings. Section 32(3) is also an indicator of what the legislature had in its mind when it
provided for the employer repatriating the employee at its expenses. The expenses, according to
this subsection arc to include travelling and subsistence expenses or rations. What is indicated by
the words used in this subsection is that the mind of the legislature hovered around ensuring that
the employee's person is transported back to his home and he is fed along the way. Therefore to
expand the scope of the repatriation expenses to include moving the employee's vehicle, fridge,
stove etc would be contrary to the legislature's original intention, and would in that sense, lead to
an absurdity.
Even if a much wider jurisprudential approach, going beyond the wording of the provisions, was
employed the intention of the legislature would still be shown as to ensure that the employer
returned the employee, at its expense, and well fed along the way, to the place of recruitment. This
is because the employer would be presumed to have the money whilst the employee would not. It
was intended to counter the employer's strong bargaining power and financial muscle. The words
of labour law scholars, Rycroft and Jordaan, are apt in determining the intention and scope of s
32(1) and related legislative provisions. In their book entitled A Guide to South African Labour
Law (Juta & Co Ltd 1992) at p 46 they state as follows:
'The main object of labour law has always been, and we venture to say will always be, to be a
countervailing force to counteract the inequalities of the bargaining power which is, inherent and must be
inherent in the employment relationship. Most of what we call protective legislation must be seen in this
context. It is an attempt to infuse law into a relation of command subordination.'
Section 32(1) is such protective legislation. It seeks to protect an employee who might find himself
thrown out of his job and roaming in the streets far away from his home. It compels the employer to
at least take such an employee back home.
His family is also equally protected. But should this protection extend to his car, fridge, stove,
television etc. and require the employer to pay freight amounts of as high as P190 000? The
second meaning of s 32(1) would expand the scope of repatriation expenses to these other
personal belongings. Was this the intention of parliament? Going beyond getting the employee and
his family back home would no longer be the protection that the legislature intended. As stated
earlier, such widening of scope would lead to an absurdity in that the legislature would not have
intended it.
When subjected to an ordinary and plain meaning the section provides for the person of the
employee and his family. It does not refer to their personal belongings. In the ordinary and plain
meaning, the person of the employee (as well as of the family) is to be brought back home where
he was recruited with adequate feeding along the way. To hold that the intention of the legislature
was for repatriation expenses to include personal goods such as beds, cars, stoves etc. would lead
to a glaring absurdity that could never have been contemplated by the legislature. To hold so would
contradict the clear legislative intent which is revealed by an ordinary construction of the words it
chose to use.
There is therefore no reason why the court should depart from the ordinary
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meaning of s 32(1), which is that the repatriation expenses are limited to the costs of transporting
the person of the employee and his personal belongings limited to travelling luggage and that of his
family. It cannot include his vehicle, fridge, bedroom suite, stove and related items. The applicant's
interpretation therefore cannot be sustained because it leads to absurdity and contravenes the
intention of the legislature. This determination effectively rejects the applicant's application.
Determination
The court makes the following determination:
(a) It is therefore on the basis of the aforegoing that the application launched by the applicant
is misconceived and it is accordingly rejected.
(b)
No order is made as to costs.
I agree on the facts:
P D Chengeta
Nominated member (Union)
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