Références
Catégories de travailleurs exclues:
CDD reglementés: Oui
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.
Motifs autorisés de recours au CDD: aucune limitation
No statutory limitation.
Nombre maximum de CDD successifs: aucune limitation
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
No statutory limitation.
Durée maximale de la période d'essai (en mois): 12 mois
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
See the art 20-2 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
Motifs autorisés (licenciement justifié):
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
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.
The Code of Good Practice provides that harassment of an employee whether of a sexual nature or ortherwise, constitutes a form of discrimination.
Travailleurs bénéficiant d'une protection particulière: femmes enceintes ou en congé de maternité
Art. 116 LC. Prohibition of dismissal during maternity leave.
Forme de la notification du licenciement au travailleur: écrite
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:
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. (...)"
Indemnité compensatrice de préavis: Oui
Art 19 a) of the EA. either party to a contract of employment may-
(a) 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
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.
Notification à l'administration publique No
Notification aux syndicats (représentants des travailleurs) Yes
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: No
Accord des syndicats (représentants des travailleurs) No
Accord des représentants des travailleurs No
Règles de priorité pour l'ordre des des licenciements collectifs (situation sociale, âge, ancienneté) Yes
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.
Obligation de l'employeur d'examiner des solutions alternatives au licenciement (transferts, formation...) Yes
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.
Règles de priorité de réembauche No
:
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: 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.
travailleurs miniers: Oui
See art. 27 AL.5 EA. A final determination of the amount of any severance benefit made by the nearest labour officer or the Commissioner.
directeurs /cadres dirigeants: Oui
Art 25 AL. 3 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.
police: Non
Règlement des litiges individuels par arbitrage: Oui
See art. 27 AL.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..