CDD reglementés: Oui

Remarks

Art. 17 al.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, the art. 2 al 1 (1) 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.

Motifs autorisés de recours au CDD: aucune limitation

Remarks

No statutory limitation.

Nombre maximum de CDD successifs: aucune limitation

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.

Durée cumulée maximum de CDD successifs: aucune limitation

Remarks

No statutory limitation.

Durée maximale de la période d'essai (en mois): 12 mois

Remarks

Art. 20 EA : the probatory period can not exceed three months in the case of unskilled employees, and twelve months in the case of skilled employees.

Excluded from protection against dismissal: Oui

Remarks

See the art. 20 al.2 EA. In the absence of specific provisions expressly stipulated in the contract, the probationary period may be terminated at any time without notice by the will of one of the parties.

Obligation d'informer le travailleur des raisons du licenciement: Oui

Remarks

Art. 11 al.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 Comissioner.
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 art. 25 al.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.

Motifs autorisés (licenciement justifié): tout motif légitime

Remarks

The art.3 al 6 (1) and (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. The 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.
Art 19 (a) EA. If the employee is guilty of serious misconduct.
The art 26 al.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.
Art. 14 al.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.

Motifs prohibés: état matrimonial, congé de matérnité, avoir déposé une plainte contre l'employeur, race, couleur, sexe, opinion politique, origine sociale, âge, affiliation et activités syndicales, handicap, statut VIH, remplir des obligations civiques, origine ethnique

Remarks

See the art. 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.
Art. 116 EA. Prohibition of serving notice of termination of contract of employment during maternity leave.
Art. 9 al.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.
Art. 8 of the Code of Good Practice on Discrimination. Dismissals based on employees with disabilities is prohibited.


Travailleurs bénéficiant d'une protection particulière: représentants des travailleurs, femmes enceintes ou en congé de maternité

Remarks

Art. 116 LC. Prohibition of dismissal during maternity leave.
The art. 11 al 9 of the Code of Good Practice on Termination of Employment provides special protection for dismissal from workers representatives.

Forme de la notification du licenciement au travailleur: écrite

Remarks

See the art. 18 al.5 of the EA : Notice of intention to terminate the contract shall be in writing. However, it may also be given orally by either party if he is illiterate.

Délai de préavis:

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. (...)"

ancienneté ≥ 6 mois:

  • Tous: 0.25 mois.

ancienneté ≥ 9 mois:

  • Tous: 0.25 mois.

ancienneté ≥ 1 an:

  • Tous: 0.25 mois.

ancienneté ≥ 2 ans:

  • Tous: 0.5 mois.

ancienneté ≥ 4 ans:

  • Tous: 0.5 mois.

ancienneté ≥ 5 ans:

  • Tous: 1 mois.

ancienneté ≥ 10 ans:

  • Tous: 1.5 mois.

ancienneté ≥ 20 ans:

  • Tous: 1.5 mois.

Indemnité compensatrice de préavis: Oui

Remarks

Art 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.

Notification à l'administration publique: Oui

Remarks

See art.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.

Notification aux représentants des travailleurs: Non

Autorisation de l'administration publique ou d'un organe judiciaire: Non

Accord des représentants des travailleurs: Non

Définition du licenciement collectif (nombre d'employés concernés): No definition of collective dismissal.

Remarks

No definition of the collective dismissal on the EA. However, the art. 13 al 1 of the Code of Good Practice on Termination of employment provides that retrenchement 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.

Consultation préalable des syndicats (représentants des travailleurs): Non

Remarks

No statutory provision on the EA. However, the Art. 13 al 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.

Notification à l'administration publique: Oui

Remarks

See the art. 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.

Notification aux représentants des travailleurs: Non

Autorisation de l'administration publique ou d'un organe judiciaire: Non

Accord des représentants des travailleurs: Non

Règles de priorité pour l'ordre des des licenciements collectifs (situation sociale, âge, ancienneté): Oui

Remarks

See art. 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, the art 13 al. 5(2) 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.

Obligation de l'employeur d'examiner des solutions alternatives au licenciement (transferts, formation...): Non

Remarks

No statutory provision in the EA. However, the art. 13 al 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.

Règles de priorité de réembauche: Oui

Remarks

See art. 25 al.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, the art. 13 al. 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.

Indemnité de licenciement:

Remarks

Art. 27 al.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 continous 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 continous 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.

Notes / Remarques

Notes

The law provides for a right to severance pay (art. 27 al. 1 EA) for worker who has completed 60 months of continuous service. However, there are no statutory rules on the amount of SP.
New in 2010: The Amendment to Employment Act and potential impact of October 20, 2010 now provides that an employee who has been in continous 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.