Written Employment Particulars
Employment contracts in Botswana can be oral or written, but written contracts are mandatory for work abroad or as specified by the Minister of Labour. Contracts must include key employment terms, with copies provided to the employer, employee, and relevant labour authorities.
Contracts of employment may be oral or in writing, expressed or implied. However, the employment contract must be in writing for any work that falls outside of Botswana or as may be specified by the Minister of Labour. Worker must be given a copy of contract where employment contract is concluded in writing.
Contract of employment is to contain the full name and address of the employer, the name and occupation of the employee, the place of work, the date on which employment begins, working hours, wage, rate of overtime pay, other cash payments, when remuneration will be paid, deductions from remuneration, annual leave, sick leave, maternity benefits and leave, period of notice for termination of employment or when the contract is to terminate, the payment for working on public holidays, and the list of documents which form part of contract of employment.
The employment contract which pertains to work outside Botswana or as otherwise prescribed by the Minister for labour should all of the above and certain extra information.
Three copies of every contract of employment attested under this act are to be attested together with the original; one copy is to be delivered to the employer, one copy to the employee and one to the labour officer of the district of employment or, where the place of employment is outside Botswana, to the appropriate government official in the district within which the place of employment is located. The original of every attested contract of employment is to be deposited with and preserved by the attesting officer.
Source: §14, 39, 40, 43 of the Employment Act, 1982 (Cap. 47:01) and Rule 9.4 of the Code of Conduct
Employment Termination
Employment in Botswana can be terminated for various reasons, including misconduct, redundancy, incapacity, or mutual agreement, but protections exist against unfair dismissal. Courts may order reinstatement or compensation for wrongful termination, considering factors like financial loss, reemployment prospects, and employer conduct.
Employment termination is regulated under the Employment Act and the Code of Good Practice on Termination of Employment.
The main reasons provided by the law/Code of Conduct to terminate an employment contract are:
1. Mutual agreement between the parties
2. Death or sequestration of employer
3. Death of employee
4. Retirement
5. Resignation by the employee
6. Forced resignation or constructive dismissal
7. Dismissal, due to:
a. Misconduct
b. Incapacity, including poor work performance or ill health or injury
c. Operational requirements (re-organisation of the business or the discontinuance or reduction of the business for economic, structural, technological or similar reasons)
8. Termination of fixed term contract on completion of task or expiry of the period specified in the contract
The following are considered gross misconduct under the Employment Act: wilful disobedience of lawful orders, misrepresentation of skills or qualifications, habitual neglect of duties, theft, dishonesty, or acts of violence, gross negligence causing property damage, disclosure of confidential information, alcohol or drug-related impairment affecting duties, non-compliance with safety rules, persistent underperformance despite warnings, bribery, and unapproved absenteeism.
If proven, the employer may terminate the employment contract without serving any notice of termination.
The Employment Act also refers to the circumstances under which an employee may justifiably leave their job without service any notice of termination (constructive dismissal). These include being assigned work fundamentally different from their original role, facing relocation without contractual provision, or being demoted to lower-grade work. Additionally, unjust treatment by the employer or their representative, or immediate threats to the employee or their dependents from violence or disease are also valid reasons.
The Employment Act further specifies that the employer cannot terminate an employee's contract based on certain protected grounds. These include the employee's trade union membership or activities, seeking or serving as an employee representative, making a legitimate complaint or participating in legal proceedings against the employer, or discrimination based on race, tribe, origin, marital status, political beliefs, gender, colour, or creed.
Other than these, Employment Act prohibits serving the notice of termination of contract of employment during a female worker’s maternity leave.
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.
Under the Code of Good Practice on Discrimination, dismissal based disability for employees with disabilities is prohibited.
In the case of redundancy (termination of employment for the purpose of reducing the size of workforce), the employer shall give a notice of intention to the Commissioner. In case of collective dismissals/redundancy, the employer must follow the "first-in, last-out" principle for each employee category, where practical. However, the employer must also consider the efficient operation of the business and evaluate each employee's ability, experience, skills, and qualifications before making decisions.
If the Court determines that an employee has been wrongfully dismissed or disciplined, it may order remedies it deems fair. For wrongful dismissal, the Court may order reinstatement, with or without compensation, or compensation instead of reinstatement. In cases of wrongful disciplinary action, the Court may award appropriate compensation.
Compulsory reinstatement is considered only if the dismissal was unlawful or discriminatory (e.g., based on gender, union activities, filing of complaint or grievances, religion, or political opinion) or if the employment relationship has not irrevocably broken down. Compensation linked to reinstatement cannot exceed the employee's actual financial losses due to the dismissal.
When assessing compensation, the Court shall evaluate factors such as the employee’s actual and future losses, age, reemployment prospects, the circumstances of the dismissal, adherence to Court recommendations, any legal or collective agreement violations, and the employer’s financial capacity.
Source: §17-26, 113 of the Employment Act, 1982 (Cap. 47:01); §27 of the Trade Disputes Act, 2016
