Key Benefits:
(1) Subject to Part IV, contracts of employment may be oral or in writing, expressed or implied.
(2) This Part shall apply to every contract of employment:
Provided that this Part shall not apply to a contract of employment entered into by the government to hire the labour of any person who is not an employee as defined by section 2.
15. Existing contracts of employment to continue in force
Every contract of employment valid and in force immediately before the commencement of this Act shall continue to be in force thereafter and, to the extent that the same is not in conflict with this Act, shall be deemed to be made under this Act and the parties thereto shall be subject to and entitled to the benefits of this Act.
16. Duty of employer to provide work
(1) Every employer shall, unless the employee has broken his contract of employment or the contract of employment becomes, without default on the part of the employer, impossible of performance, provide his employee with work in accordance with the contract of employment during the period for which the contract is binding on a number of days equal to the number of working days provided for, either expressly or by implication, in the contract of employment.
(2) If an employer fails to provide work in accordance with subsection (1), he shall pay to his employee, in respect of every day on which he so fails, wages at the same rate as if the employee had performed a full day's work, whether the employee is or is not released from the workplace.
17. Termination of contracts of employment generally
(1) 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.
(2) A contract of employment for an unspecified period of time (other than a contract of employment for a specified piece of work, without reference to time) shall be deemed to run until lawfully terminated.
18. Termination of contracts of employment for unspecified periods of time
(1) A contract of employment for an unspecified period of time (other than a contract of employment for a specified piece of work, without reference to time) may be terminated by either party-
(a) where the wages are payable in respect of any period not exceeding a day, at the close of any day's work without notice having been given to the other party of the intention to do so unless the contract of employment provides for the giving of such notice in these circumstances, in which the last case the termination of the contract shall be subject to such notice having been given in accordance therewith; or
(b) where the wages are payable in respect of any period exceeding a day, at any time, notwithstanding anything to the contrary contained in the contract of employment, subject to notice having been given to the other party of the intention to do so.
(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.
(5) Notwithstanding anything to the contrary contained in a contract of employment, notice of intention to terminate the contract shall be in writing and shall be given on a working day at any time and, except where the wages are payable in respect of any period not exceeding a week, that day shall be included in the period of notice:
Provided that, notwithstanding anything to the contrary contained in the contract of employment, notice of intention to terminate the contract may be given orally by either party if he is illiterate.
19. Termination of contracts of employment for unspecified periods of time, normally subject to notice, without notice
Notwithstanding section 18, either party to a contract of employment for an unspecified period of time (other than a contract of employment for a specified piece of work, without reference to time), which contract may be terminated by either party subject to notice having been given to the other party of the intention to do so, 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; and
(b) where such notice has already been given, whether the period thereof is the appropriate minimum lawful period or a longer period, terminate the contract, without waiting for the expiry of the period of 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 balance of the period of notice.
20. Termination of contracts of employment for unspecified periods of time during probationary period
(1) In the case of a contract of employment for an unspecified period of time (other than a contract of employment for a specified piece of work, without reference to time), such period not exceeding three months in the case of unskilled employees, and twelve months in the case of skilled employees, as the contract may specify immediately after the commencement of employment under the contract may be a probationary period (hereinafter referred to as a "probationary period") if the contract so provides.
(2) Where a contract of employment is terminated during a probationary period by either the employer or employee under section 18 or 19 by not less than 14 days' notice, the contract shall be deemed, for the purposes of this Part, to have been terminated with just cause and neither the employer nor the employee shall be required to give any reasons therefor.
(3) Before entering into a contract of employment which is to provide for a probationary period, the prospective employer shall inform the prospective employee in writing of the length of the probationary period.
(4) Any person who contravenes this section shall be guilty of an offence and liable to the penalties prescribed by section 151(b).
21. Breaches of contracts of employment
(1) The employer shall be deemed to be in breach of a contract of employment if he fails to pay basic pay or wages in accordance with Part VII.
(2) The employee shall be deemed to be in breach of a contract of employment if he is absent from work without the prior consent of his employer or his employer's representative unless he has reasonable cause for such absence and, as soon as it is reasonably practicable to do so, informs his employer or his employer's representative of that cause.
22. Liability following certain breaches of contracts of employment
Subject to any agreement to the contrary, the party in breach of a contract of employment whereby or as a direct result of which employment under the contract ceases shall be liable to pay to the other party a sum equal to the amount he would have been liable to pay to the other party in order to terminate the contract in accordance with section 19(a) or (b), as is appropriate.
23. Restriction of grounds on which employers may terminate contracts of employment
Notwithstanding anything contained in a contract of employment, an employer shall not terminate the contract of employment on the ground of-
(a) the employee's membership of a registered trade union or participation in any activities connected with a registered trade union outside working hours or, with that consent of the employer, within working hours;
(b) the employee seeking office as or acting or having acted in the capacity of an employees' representative;
(c) the employee making,in good faith,a complaint or participating in proceedings against the employer involving the alleged violation of any law;
(d) the employee's race, tribe, place of origin, social origin, marital status, gender, sexual orientation, colour, creed, health status or disbility; or
(e) any other reason which does not affect the employee's ability to perform that employee's duties under the contract of employment.
24. Certificates of employment
(1) Upon the termination of a contract of employment, the employee may require his employer to deliver to him a certificate specifying the dates of the employee's engagement and of the termination of the contract of employment and the type or types of work on which the employee has been engaged.
(2) A certificate such as is referred to in subsection (1) shall contain nothing unfavourable to the employee.
(3) Any employer who fails forthwith to comply with a requirement made of him under subsection (1) shall be guilty of an offence and liable to the penalties prescribed by section 151(b).
(1) 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.
(2) Without prejudice to the other provisions of this Part in relation to the giving of notice, 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.
(3) 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.
(4) Any employer who contravenes this section shall be guilty of an offence and liable to the penalties prescribed by section 151(b).
26. Termination of contracts of employment without notice
(1) Notwithstanding the other provisions of this Part, the employer may terminate any contract of employment without giving notice of his intention to do so or making any payment such as is referred to in section 19(a) or (b) where the employee is guilty of serious misconduct in the course of his employment:
Provided that the employer shall be deemed to have waived his right under this subsection unless he exercises it within a reasonable period in all the circumstances after becoming aware of the misconduct in question.
(2) An employee whose contract of employment is for an unspecified period of time (other than a contract of employment for a specified piece of work, without reference to time) may terminate the contract of employment without giving notice of his intention to do so or making any payment such as is referred to in section 19(a) or (b) and an employee whose contract of employment is for a specified piece of work, without reference to time, or for a specified period of time may terminate the contract of employment immediately, notwithstanding that the work specified by the contract of employment is not completed or the period of time for which the contract was made has not expired, on the ground that-
(a) he is employed on work markedly different in nature from the work he was originally engaged to perform;
(b) his continued employment necessitates a change of residence for which no provision is made by his contract of employment;
(c) he is transferred to lower grade work;
(d) he is badly treated by his employer or his employer's representative; or
(e) by virtue of his employment he or his dependants are immediately threatened by danger to the person from violence or disease such as he did not undertake to accept by his contract of employment.
(3) The employee shall be deemed to have waived his right to terminate his contract of employment under subsection (2) unless he exercises it within a reasonable period in all the circumstances after becoming aware of the existence of the ground conferring that right.
(4) For the purposes of this section the term "serious misconduct" shall, without prejudice to its general meaning, include or be deemed to include the following-
(a) wilful disobedience of lawful and/or reasonable orders given by the employer;
(b) wilful, express or implied, misrepresentation by the employee in respect of his skills or qualifications;
(c) habitual or wilful neglect of duties;
(d) acts of theft, misappropriation or wilful dishonesty against the employer, another employee, or a customer or client of the employer;
(e) acts of violence;
(f) damage caused wilfully or by gross negligence to movable or immovable property of the employer;
(g) wilful disclosure of confidential information or trade secrets where such disclosure is or is likely to be detrimental to the interests of the employer;
(h) inability to carry out normal duties, due to the consumption of alcohol or habit-forming drugs;
(i) wilful refusal to obey or comply with any safety rules or practices for the prevention or control of accidents or diseases;
(j) consistent work performance below average despite at least two written warnings;
(k) offering or receiving bribes;
(l) persistent absence from work without permission.
27. Entitlement to severance benefit on termination of contract of employment
(1) 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 at the rate prescribed:
Provided that-
(i) severance benefit shall be payable at the conclusion of each period of 60 months continuous service by the employee, or at the termination of his employment, at the option of the employee;
(ii) where, upon the date of payment of any severance benefit, the employee, or his dependant or beneficiary, is at that date or some future date entitled to the payment of a gratuity or pension or both a gratuity and pension in respect of the period of employment under the contract, no severance benefit which would otherwise be payable in terms of this section to the employee or his dependant or his beneficiary shall be payable.
(iii) where the continuous employment began at any time before the commencement of this Act, that employment shall be deemed, for the purposes of this section, to have begun at the commencement of this Act.
(1A) Notwithstanding subsection (1), the employer shall, in the case of termination of a contract of employment before an employee has served a continuous period of 60 months, pay to the employee a severance benefit at a rate proportionate to that employee's length of service.
(2) For the purposes of calculating the severance benefit payable in accordance with this section-
(a) in subsection (1)-
(i) "month", in relation to the first 60 months of continuous employment, means a complete month and, in relation to continuous employment thereafter, means a complete month or any fraction thereof; and
(ii) "basic pay" means the basic pay payable to the employee at the time of the termination of the contract of employment; and
(b) where, at the time of the termination of the contract of employment, any leave is due to the employee or he has any other right of absence under this Act, the period of that leave or other right of absence shall be deemed to be part of his period of continuous employment.
(3) 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.
(4) Where the employer or employee is dissatisfied with any determination made by the nearest labour officer in accordance with subsection (3), he may appeal against that determination, within such period and in such form and manner as may be prescribed, to the Commissioner who may either dismiss the appeal and confirm the labour officer's determination or allow the appeal, either wholly or in part, and vary the amount of the benefit accordingly.
(5) A final determination of the amount of any severance benefit made by the nearest labour officer or the Commissioner under subsection (3) or (4), as the case may be, shall be conclusive of the amount of the benefit payable in accordance with this section.
(6) Any employer who fails to comply with this section shall be guilty of an offence and liable to the penalties prescribed by section 151(c).
(1) If a trade, undertaking, business or enterprise (whether or not it is established by or under any written law) is transferred from one person to another and an employee in the trade, undertaking, business or enterprise continues to be employed therein, the period of continuous employment immediately preceding the transfer shall be deemed, for the purposes of this Act, to be part of the employee's continuous employment with the transferee immediately following the transfer.
(2) If, by or under any written law, a contract of employment between a body corporate and an employee is modified by the substitution or some other body corporate as the employer, the period of continuous employment immediately preceding the substitution shall be deemed, for the purposes of this Act, to be part of the employee's continuous employment with such other body corporate immediately following the substitution.
(3) If, on the death of an employer, an employee continues to be employed by the legal personal representatives or trustees of the deceased, in their capacity as such, the period of continuous employment immediately preceding the death shall be deemed, for the purposes of this Act, to be part of the employee's continuous employment with the legal personal representatives or trustees immediately following the death.
(4) If there is any change in the partners, legal personal representatives or trustees who employ any person, that person shall be deemed, for the purposes of this Act, to remain in employment with the same employer and such change shall be deemed, for the purposes of this Act, not to interrupt such employment.
29. Transfer of Botswana citizen abroad in same undertaking
(1) Where an employer in any undertaking in Botswana establishes or operates branches of the undertaking outside Botswana, he shall not transfer any employee who is a citizen of Botswana engaged in Botswana for employment at any such branch outside Botswana without the written permission of the Commissioner for that transfer.
(2) Every employer wishing to obtain the Commissioner's written permission under subsection (1) shall submit a written application to the Commissioner, together with a copy of the contract of employment under which the employee is employed, and every such application shall contain particulars as to-
(a) the period of the employee's intended absence from Botswana;
(b) the conditions and nature of employment at the place to which the transfer is required;
(c) the method of travel and the protection to be given to the employee; and
(d) the payment of expenses of the journey and the provision of subsistence both to and from the place to which the transfer is required.
(3) The Commissioner may require the employer to furnish such particulars in addition to those prescribed by subsection (2) as he may think it necessary to have and may, on being satisfied as to the terms of the transfer, grant his written permission for the transfer, subject to such conditions as to security or the like as he may think fit to impose.
(4) Where permission is granted under subsection (3), the Commissioner may in writing, on written application being made to him therefor, grant an extension of the period of the transfer in question for such period as he may think fit.
(5) Any employer who contravenes this section or any condition attached to the Commissioner's written permission granted under this section shall be guilty of an offence and liable to the penalties prescribed by section 151(b).
30. Death or disappearance of employee during contract
(1) Where a contract of employment is terminated by the death of the employee or in such other circumstances as to prevent the employer paying the employee, as required by this Act, his basic pay or any other payments due to him or delivering to him any of his property in the possession of the employer, the employer shall deliver to any person specified in the First Schedule such basic pay, other payments or property and that person shall dispose of the same in accordance with such general or special directions as the Minister may give in this connection or, in the absence of such directions, as otherwise required by law.
(2) Regulations may prescribe the form of indemnity to be rendered to an employer by a person specified in the First Schedule to whom money or property has been delivered by the employer in accordance with subsection (1).
(3) The Minister may, by order published in the Gazette, amend the First Schedule.
(1) The Commissioner may, by written notice served on the employer concerned or by order published in the Gazette, require any employer or every employer belonging to any class or description of employers specified in the order, to issue an employment card to each employee or to each employee belonging to any class or description of employees specified in the notice or order, as the case may be.
(2) The Minister may prescribe the conditions attaching to the issue of an employment card under this section, the form thereof and the particulars to be contained therein.
(3) Any employer who fails to comply with a requirement made of him under this section shall be guilty of an offence and liable to the penalties prescribed by section 151(a).
(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;
(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 the employee 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.
(4) The employer shall not be liable for subsistence expenses or rations in respect of any period during which repatriation of the employee has been delayed-
(a) by the employee's own choice;
(b) for unavoidable reasons, of which the Commissioner shall be the sole judge; or
(c) if, throughout the said period, the employer has continued to employ the employee in accordance with the terms of his recently concluded contract of employment.
(5) If the employer fails to fulfil his obligations in respect of repatriation, those obligations shall be discharged by or under the directions of the Commissioner and any sums expended in consequence thereof may be recovered from the employer by civil suit.
(6) Any employer who, without reasonable excuse, fails to fulfil any obligation imposed on him by this section shall be guilty of an offence and liable to the penalties prescribed by section 151(b); and in any proceedings in respect of an offence under this subsection the court shall presume the absence of a reasonable excuse on the part of the person charged unless the contrary is proved.
33. Exemption from obligation to repatriate
The Commissioner may exempt the employer from liability for repatriation expenses where he is satisfied that the employee has-
(a) by a declaration in writing or otherwise, signified that he does not wish to exercise his right to repatriation and has been settled at his request or with his consent at or near the place of employment; or
(b) by his own choice, failed to exercise his right to repatriation within a reasonable period immediately after the date of termination of the contract of employment.
34. Duty of employer to provide means of transport on repatriation
(1) The employer shall provide the means of transport for employees who are being repatriated.
(2) The Commissioner shall take all necessary measures to ensure and may give such directions to the employer or to any person acting on behalf of the employer as will ensure that-
(a) the vehicles or vessels used for the transport of employees are suitable for such transport, are in good sanitary condition and are not overcrowded;
(b) when it is necessary to break the journey for the night, suitable provision in all the circumstances is made for the employees; and
(c) in the case of long journeys, all necessary arrangements are made for the welfare of the employees.
(3) When employees have to make long journeys in groups, they shall be conveyed by a person who, in the opinion of the Commissioner, is fit to assume responsibility.
(4) Any person who, without reasonable excuse, fails to comply with this section or with any direction of the Commissioner given thereunder shall be guilty of an offence and liable to the penalties prescribed by section 151(b); and in any proceedings in respect of an offence under this subsection the court shall presume the absence of a reasonable excuse on the part of the person charged unless the contrary is proved.
35. Duty of employer to provide medical facilities in certain circumstances
(1) Where an employee is to perform work under his contract of employment in an area within Botswana where medical facilities are not readily available, the employer shall provide reasonable medical facilities for the employee and for every member of his family who the employer has agreed may accompany him.
(2) Regulations may prescribe the scale of medical facilities required to be provided by subsection (1).
(3) Where an employee employed in the circumstances described by subsection (1), or a member of his family who the employer has agreed may accompany him, falls ill and it appears necessary that he should attend or be admitted to hospital, the employer shall provide suitable transport to the nearest hospital able to provide suitable treatment.
(4) Any employer who fails to comply with this section shall be guilty of an offence and liable to the penalties prescribed by section 151(b).
36. Duty of employer to keep register of casual employees
(1) Every employer who employs casual employees shall keep a register of such employees in such manner as may be prescribed.
(2) The employer shall keep in safe custody until the expiry of two years immediately after the date of the last entry therein every register kept by him in pursuance of this section and shall forthwith make it available for inspection by any labour officer on being required to do so by such officer.
(3) Where an employer winds up any undertaking, business or enterprise of whatever kind in which casual employees have been engaged, he shall forthwith deposit every register kept by him in pursuance of this section in relation to that undertaking, business or enterprise with the Commissioner.
(4) Any employer who fails to comply with this section shall be guilty of an offence and liable to the penalties prescribed by section 151(a).
37. Certain terms of contract of employment to be void
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.
38. Offence where contract contravenes this Part
Any employer who enters into a contract of employment or a collective labour agreement containing terms contrary to the provisions of this Act shall be guilty of an offence and liable to the penalties prescribed by section 151(c).
