Union Is “Vindicated” By Court Ruling Against Lucara

Court orders Lucara to negotiate retrenchment packages with the union Says negotiation is necessary because there is no distinction between voluntary and compulsory separation The Botswana Mine Workers Union (BMWU) is vindicated by the Industrial Court judgment that interdicted Lucara Botswana from proceeding with its restructuring process pending consultations, the union has said. The union is now calling for the executive leadership of Lucara to step down because “there is a serious deficit in ESG (Environmental, Social and Governance) stewardship” and other issues at the diamond mining company. [ihc-hide-content ihc_mb_type="show" ihc_mb_who="1,3,2,4" ihc_mb_template="3" ] Delivered by Justice A. Mphetlhe in Gaborone on 28 April 2023, the judgment also directed the parties to return to the negotiation table on separation packages in accordance with their retrenchment agreement. BMWU had lodged an urgent application against Lucara Botswana on 6 April 2023 asking the court to interdict Lucara from proceeding with a restructuring process and declaring redundancies pending due consultations. The union also wanted the court to direct Lucara to negotiate retrenchment packages with it in accordance with the agreement between the two. In a statement issued after the judgment, the president of BMWU Joseph Tsimako and general secretary Maenge Maenge note that Lucara Botswana had strongly opposed the application on the grounds that: the urgency sought by the union was self-created; the separation package was not a negotiable matter but consultative; consultations on optimisation had been held with the union; the optimisation report was confidential and could not be disclosed; and that the union’s case on the same issue was before the Commissioner of Labour. However, in granting the union’s interdict against Lucara Botswana, the Industrial Court resolved that on the issue of urgency, the union had adduced sufficient grounds in its founding affidavit for the matter to be heard on urgency. The court said the union had discharged the onus of establishing the existence of exceptional circumstances warranting its matter to be heard on urgency. On the issue of whether the relief sought by the union was similar to what it sought from the Commissioner of Labour, the court held that the Commissioner of Labour was neither a court of law nor clothed with powers to grant the interdict. The matter filed by the union with the Commissioner of Labour did not therefore stop the union from approaching the court for redress. On the issue of separation packages, the court held that there was no distinction between voluntary and compulsory separation. “Voluntary separation was a form of retrenchment, therefore separation packages were negotiable as per guidance by the retrenchment and redundancy agreement concluded by parties and equally binding on them,” says the union in its statement. “On the issue of refusal to disclose the APGI optimisation report, the court held that Lucara Botswana’s refusal to share recommendations and findings demonstrates bad faith on their part.” BMWU says the judgment was delivered several days after it petitioned the Chairman of the Lucara Botswana Board raising several issues, some of which were confirmed by the Industrial Court. “The union intends to furnish Lucara Botswana Board Chairman with a copy of this judgment to form part of the agenda items to be discussed at its upcoming shareholders annual meeting or the next Lucara Diamond Corp Board meeting,” it says in the statement. “Provenance of commodities mined at Karowe Mine is very important in the global diamond trade, so is the company’s ESG performance and stewardship. “Collective bargaining and human rights (workers rights) are critical indicators in the ESG framework against which the performance of an operation and the management of potential risks by its executive leadership is gauged.” BMWU says there is a serious deficit in ESG stewardship at Lucara Botswana and calls for removal of the executive leadership as a solution. “The Industrial Court judgment has vindicated the union on Lucara Botswana’s failure to protect its employees, shareholders and investors and meet its ESG compliance and stewardship target.” [/ihc-hide-content]

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