CDD regulados: Si

Remarks

Sec. 17 (1) of the EA: A contract of employment for a specified piece of work, without reference to time, or for a specified period of time shall, unless otherwise lawfully terminated, terminate when the work specified in the contract is completed or the period of time for which the contract was made expires.
In addition, sec. 2(2.1.1) of the Code of Good Practice on Termination of Employment provides that a fixed term contract may be for a specified period or may be determine by specified event. A fixed term contract normally terminates automatically on the expiry of the period.

Razones de utilización legítima de CDD: sin restricción

Remarks

No statutory limitation.

Número máximo de CDD consecutivos: sin restricción

Remarks

No maximum number specified in the legislation. However, under the Code of Good Practice, an employer who fails to renew a fixed-term contract, when a reasonable expectation that it will be renewed is held by the employee, is deemed to have dismissed the employee.

Duración máxima acumulativa de CDD consecutivos: sin limitación

Remarks

No statutory limitation.

Duración maxima del periodo de prueba (en meses): 12 meses

Remarks

Sec. 20 EA : The probationary period cannot exceed three months in the case of unskilled employees, and twelve months in the case of skilled employees.

Excluded from protection against dismissal: Si

Remarks

See Sec 20(2) EA: An employee or employer may terminate a contract of employment (except fixed term contracts in terms of sec. 17) during a probationary period, subject to fourteen days' notice. The contract shall be deemed to have been terminated with just cause, and neither party shall be required to give reasons for the termination of the contract.

Obligación de motivar el despido: Si

Remarks

Sec. 11(10) of the Code of Good Practice on Termination of Employment provides that if the employee is dismissed, the employee must be given the reason for dismissal and notified of the right to refer a dispute concerning the wrongfulness of the dismissal to the Office of the Labour Commissioner.
Although there is no general provision in the EA on the obligation to give the employee the reasons for dismissal, this obligation is implied from several provisions of the Code of Good Practices on Dismissal.
See sec. 25(2)EA. when an employer forms an intention to terminate contracts of employment for the purpose of reducing the size of his work force, he shall forthwith give written notice of that intention to the Commissioner and to every employee to be or likely to be directly affected by the reduction.

Motivos autorizados (despido justificado): cualquiera justa causa

Remarks

Sec. 3(6.1) & (6.2) of the Code of Good Practice on Termination of Employment provides that in a contract for an unspecific period, a dismissal is not wrongful if it is effected for a fair reason and in accordance with fair procedure. There are normally only 3 recognised grounds of dismissal for a fair reason: misconduct, incapacity; including poor work performance or ill health or injury; and operational requirements.

The Code of Good Practice further provides guidance on substantive considerations, which may be described as fair reasons, for the determination of whether an employee should be dismissed on the grounds of misconduct (sec. 6); incapacity due to poor work performance (sec 8) or ill health (sec. 9); and incompatibility (sec. 10).

Sec. 26(4) of the EA provides that the term "serious misconduct"means: wilful disobedience of lawful and/or reasonable orders given by the employer; wilful, express or implied, misrepresentation by the employee in respect of his skills or qualifications; habitual or wilful neglect of duties; acts of theft, misappropriation or wilful dishonesty against the employer, another employee, or a customer or client of the employer; acts of violence; damage caused wilfully or by gross negligence to movable or immovable property of the employer; wilful disclosure of confidential information or trade secrets where such disclosure is or is likely to be detrimental to the interests of the employer; inability to carry out normal duties, due to the consumption of alcohol or habit-forming drugs; wilful refusal to obey or comply with any safety rules or practices for the prevention or control of accidents or diseases; consistent work performance below average despite at least two written warnings; offering or receiving bribes; persistent absence from work without permission provides that no contract of employment may be terminate arbitrarily, without due process and just cause.

Sec. 14(1) of the Code of Good Practices on Discrimination provides that the security of the employment is one of the primary concerns of employees and no contract of employment may be terminated arbitrarily, without due process and without just cause.

Motivos prohibidos: estado civil, licencia de maternidad, presentación de una queja contra el empleador, raza, color, sexo, opinion política, origen social, edad, afiliación sindical y actividades sindicales, discapacidad, estatus VIH, cumplir obligaciones cívicas, origen étnico

Remarks

See sec. 23 of the EA. General prohibition of discrimination on the grounds of marital status; filing a complaint against the employer; race; colour; sex; political opinion; social origin; trade union membership and activities; fulfilling state duties; ethnic origin, age.

Sec. 116 EA. Prohibition of serving notice of termination of contract of employment during maternity leave.

Sec. 9(1) of the Code of Good Practice on HIV/AIDS provides that employees with HIV/AIDS may not be wrongfully dismissed solely on the basis of their HIV/AIDS status.

Sec. 8 of the Code of Good Practice on Discrimination. Dismissals based on employees with disabilities is prohibited.


Trabajadores que gozan de una protección particular (fuero): representantes de los trabajadores, mujeres embarazadas o con licencia de maternidad

Remarks

Sec. 23(b) of the EA provides that an employer may not terminate the employment contract of an employee seeking office, as or acting or having acted in the capacity of an employees' representative;

Sec. 116 EA. prohibits the dismissal of employees during maternity leave, and/or during leave of absence a longer period due to illness related to pregnancy or childbirth.

Forma de la notificación del despido al trabajador: escrita

Remarks

Sec. 18 (5) of the EA : Subject to the notice period specified in the employment contract, a written notice of intention to terminate the contract shall be given to the employee on a working day that will be included in the notice period. However, it may also be given orally by either party if he is illiterate. See sec. 26 EA for conditions under which an employer may terminate an employment contract without notice.

Plazo de preaviso:

Remarks

Sec. 18 EA. Termination of contracts of employment for unspecified periods of time
"(...) (2) Notwithstanding anything to the contrary contained in the contract of employment, the minimum length of any notice referred to in subsection (1)(b) shall-
(a) where the wages are payable in respect of any period exceeding a day but less than a week, be one day; or
(b) where the wages are payable in respect of any period not less than a week, be equal in length to the period:
Provided that-
(i) where an employee whose wages are payable in respect of any period not less than a week but less than two weeks have been in continuous employment for two or more but less than five years, the minimum length of notice shall be two weeks;
(ii) where an employee whose wages are payable in respect of any period not less than a week but less than a month has been in continuous employment for five or more but less than 10 years, the minimum length of notice shall be one month; or
(iii) where an employee whose wages are payable in respect of any period exceeding a day has been in continuous employment for 10 or more years, the minimum length of notice shall be six weeks.
(3) Notwithstanding subsection (2), where the contract of employment provides for a minimum length of any notice such as is referred to in subsection (1)(b) which is longer than the appropriate minimum length prescribed by subsection (2), the minimum length of any such notice shall be that for which the contract of employment provides.
(4) Nothing in this section shall prohibit either party to a contract of employment from waiving his entitlement to notice in any particular case. (...)"

duración de servicio ≥ 6 meses:

  • Todos: 0.25 meses.

duración de servicio ≥ 9 meses:

  • Todos: 0.25 meses.

duración de servicio ≥ 1 año:

  • Todos: 0.25 meses.

duración de servicio ≥ 2 años:

  • Todos: 0.5 meses.

duración de servicio ≥ 4 años:

  • Todos: 0.5 meses.

duración de servicio ≥ 5 años:

  • Todos: 1 meses.

duración de servicio ≥ 10 años:

  • Todos: 1.5 meses.

duración de servicio ≥ 20 años:

  • Todos: 1.5 meses.

Indemnización sustitutiva de preaviso: Si

Remarks

Sec. 19 (a) of the EA. either party to a contract of employment may terminate the contract without giving such notice by paying to the other party a sum equal to the amount of basic pay which would otherwise have accrued to the employee during the minimum lawful period of such notice.

Notificación a la administración: Si

Remarks

Sec. 25(2) of the EA: when an employer forms an intention to terminate contracts of employment for the purpose of reducing the size of his work force, he shall forthwith give written notice of that intention to the Commissioner.

A "Commissioner" means in the EA the Commissioner of Labour referred to in section 3 or any person acting in or lawfully performing the functions of his office.

Notificación a los representantes de los trabajadores: No

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Definición de despido colectivo (número de empleados afectados): No definition of collective dismissal.

Remarks

No definition of the collective dismissal on the EA. However, sec. 13(1) of the Code of Good Practice on Termination of employment provides that retrenchment means a dismissal arising from a redundancy caused by the re-organisation of the business or the discontinuance or reduction of the business for economical, structural, technological or similar reasons.

Consultación previa con los sindicatos (representantes de los trabajadores): No

Remarks

No statutory provision on the EA. However, sec. 13(5) of the Code of Good Practices on Termination of Employment provides that the employer should consult the employees to be affected by the collective dismissal and their trade union.

Notificación a la administración: Si

Remarks

Sec. 25(2) of the EA : when an employer forms an intention to terminate contracts of employment for the purpose of reducing the size of his work force, he shall forthwith give written notice of that intention to the Commissioner.

Notificación a los representantes de los trabajadores: No

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): Si

Remarks

Sec. 25(1) of the EA: Where an employer terminates contracts of employment for the purpose of reducing the size of his work force, he shall do so in respect of each category of employee, wherever reasonably practicable, in accordance with the principle commonly known as first-in-last-out: Provided that in so doing the employer shall take into account (i) the need for the efficient operation of the undertaking in question; and (ii) the ability, experience, skill and occupational qualifications of each employee concerned.

In addition, sec. 13(5) of the Code of Good practices on Termination of Employment provides that the criteria for selecting the employees for dismissal such as last-in-first-out , subject to special skills and affirmative action should constitute a priority rules for collective dismissals. Sec. 13(5.8) furthermore provides that selection criteria for retrenchment should also be agreed with by the employer and employee representatives.

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...): No

Remarks

No statutory provision in the EA. However, sec. 13(5) of the Code of Good Practices on Termination of the employment provides that the employer should consult the employees to be affected and their trade union, with a genuine attempt to achieve consensus on the alternatives to dismissals such as transfer to other jobs.

Reglas de prioridad para la re-contratación: Si

Remarks

Sec. 25(3) of the EA
Where contracts of employment have been terminated for the purpose of reducing the size of a work force, the employer shall, if he again seeks employees in the occupations to which those contracts related, give priority of engagement, to such extent as is reasonably practicable, to those persons whose contracts of employment were so terminated: Provided that this subsection shall not apply where the employer seeks such employees more than six months immediately after the contracts in question were terminated.

In addition, sec. 13(9) of the Code of Good Practices on Termination of Employment provides that retrenched employees should be given preference if the employer again hires employees with comparables qualifications, subject to -the employees having expressed a desire to be re-hired and the re-hiring taking place within six months of the retrenchment.

Indemnización por despido:

Remarks

Sec 27 (1) EA provides that without prejudice to section 30, on the termination of a contract of employment, whether by reason of the death or retirement of the employee or for any other reason, the employer shall pay to an employee who has been in continuous employment with him for 60 months or more, a severance benefit.

The article "Amendment to Employment Act and potential impact" of the Botswana gazette of October 20, 2010 provides that "When an employee spends a certain amount of time with an employer, that time reflects as an investment in knowledge on the part of the employer. It is true that in the past many employees chose to remain with an employer mainly because they hoped to get severance benefit after some time. Now the need to delay exit based on this reasoning will cease to exist and employers will find themselves having to re-train and re-orientate people more often as people leave."

Note: Before, only an employee who has been in continuous employment with an employer for 60 months or more was eligible for the severance pay. New in 2010: Now, the Amendment to Employment Act and potential impact of October 20, 2010 provides that an employee who has been in continuous employment with an employer for less than 60 months can benefit from the severance payment, but this severance payment is proportional to the length of service.

Notas / Comentarios

Notas

The law provides for a right to severance pay (sec. 27(1) 1 EA) for worker who has completed 60 months of continuous service. However, there are no statutory rules on the amount. The Amendment to Employment Act and potential impact of October 20, 2010 provides that an employee who has been in continuous employment with an employer for less than 60 months can benefit from the severance payment, but this severance payment is proportional to the length of service.

Compensación por despido injustificado - libre determinación de la Corte: Si

Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo): Sec. 24(3) of the Trade Disputes Act provides that where the Industrial Court orders reinstatement, any compensation ordered shall not exceed the actual pecuniary loss suffered by the employee as a result of wrongful dismissal.

Sec. 24(4) provides that in assessing the amount of compensation to be paid, the Court may consider:
(a) the actual and future loss likely to be suffered by the employee as a result of the wrongful dismissal;
(b) the age of the employee;
(c) the prospects of the employee in finding other equivalent employment;
(d) the circumstances of the dismissal;
(e) the acceptance or rejection by either the employer or the employee of any recommendations made by the Court for the reinstatement of the employee;
(f) any contravention of the terms of any collective agreement or of any law relating to employment by the employer or the employee; or
(g) the employer's ability to pay.

Posibilidad de readmisión: Si

Remarks

Sec. 24 of the Trade Disputes Act provides for a number of remedies available to an employee in the case of wrongful dismissal. The Industrial Court may order reinstatement of the employee, with or without compensation, or order compensation in lieu of reinstatement (sec. 24(1)).

The Industrial Court shall consider compulsory reinstatement in cases of wrongful dismissals if (a) the termination was found to be unlawful, or motivated on the grounds of gender, trade union membership, trade union activity, the lodging of a complaint or grievance, or religious, tribal or political affiliation or (b) the employment relationship has not irrevocably broken down (Sec. 24(2)).

Conciliación previa obligatoria: No

Corte o Tribunal competente: tribunal del trabajo

Remarks

Competent court(s) / tribunal(s): Commissioner of Labour and Labour Court

Sec. 7 of the Trade Disputes Act provides for the referral of disputes to the Commissioner of Labour. Sec. 7(2) provides that an employee referring a dispute concerning termination of employment shall refer the dispute within 30 days of the date of such termination.

Sec. 24 of the Trade Disputes Act grants the Industrial Court jurisdiction to hear cases regarding the wrongful termination of contract or disciplinary action. As such, under sec. 24(1), in any case where the Court determines that an employee has been wrongfully dismissed or disciplined, the Court may, subject to its discretion to make any other order which it considers just-
(a) in the case of wrongful dismissal, order reinstatement of the employee, with or without compensation, or order compensation in lieu of reinstatement

Arbitraje: No

Remarks

Sec. 27(3) of the EA. Where a severance benefit is payable in accordance with this section, either the employer or employee may, where there is a dispute as to the amount payable, apply, within such period and in such form and manner as may be prescribed, to the nearest labour officer to determine the amount of the benefit and, where such application is made, the nearest labour officer shall forthwith proceed to determine the amount of the benefit.