The High Court of the Republic of Botswana on 6 February 2009 dismissed an application brought by Amos Phaphani Ndabu Thapisa against the Limkokwing University of Creative Technology for unlawful dismissal from employment.

Judge I.S. Kirby ordered Mr Thapisa, to pay the University the sum of P13,580.00 in lieu of notice and to bear all court costs incurred by the University in relation to the application and counter-application of the suit.

Mr Thapisa, who had accepted the position of Vice-President (Academic) of the Botswana campus beginning 1 February 2008, had filed his suit against the University on 30 July 2008, two days after he tendered his resignation.

In his affidavit Mr Thapisa asked the court to direct the University to pay him “the sum equivalent to the remainder of the applicants’ contract or any other such sum that the Honourable Court may think fit,” and costs.

In his written judgment Judge Kirby pointed out that Mr Thapisa’s action for constructive dismissal cannot succeed because “ he was not forced to resign by circumstances or otherwise. He chose to resign in order to take up employment with ABM University.”

He said the overwhelming probability was that “even before his letter of resignation, he had been negotiating his new job with ABM University since he was able to commence work only three days later.

“That he did not enjoy working at Limkokwing did not entitle him to terminate his contract and claim damages.”

The Judge noted that Mr Thapisa was “less than frank with the court in his founding and replying affidavits, in failing to make a full disclosure of the material issue of his subsequent employment, which was within his knowledge and he sought in this way to recover damages to which he knew, or should have known, he was not entitled.”

According to the court Mr Thapisa should have exhausted all means of available mediation and grievance procedures before repudiating the contract.

Judge Kirby said the University was entitled to expect Mr Thapisa to conform to its policies of mutual respect and team work, and respect the culture and seniority of those in authority over him.

“The applicant’s claim that he was unlawfully dismissed must thus fail, as must his prayer for liquidated damages,” stated Judge Kirby.

In his affidavit Mr Thapisa listed out his grievances with regard to his status and his scope of duties and the treatment that he received while working with the University. To these Judge Kirby said he felt Mr Thapisa had overstated his case, leading to disputes of fact.

A key point that came up during the case was the instruction from the University to Mr Thapisa on 25 June 2008 to travel to Malaysia where he needed further training. The Judge noted that “further training is not usually offered to employees whom an employer is trying to force out.”

However Mr Thapisa on 26 June 2008 handed a specialist’s note from the Cardiac Clinic to the University stating that he has to remain in Gaborone until his cardiac condition stabilized.

On 11 July 2008 the University wrote to Mr Thapisa to explain within 5 days why he had not disclosed his medical condition at the time of his application to join the University since traveling was an important part of his duties to which Mr Thapisa replied that his condition was not repetitive and that he was able to undertake any trips in future if so required.

Mr Thapisa later submitted a doctor’s report dated 25 August 2008 from the Cardiac Clinic to the court as evidence of his condition.

Judge Kirby concluded in his judgment that Mr Thapisa “did not embrace the culture, norms and philosophy of his employer but that was due to his own character and his own choice, rather than the conduct of the respondent.

“Right up to a day or so before his resignation they were planning further training for him to improve his performance and to make the parties compatible in their approach.

“They had not given up on him. It is he who gave up on them.”