The Ministry of Education has thrown its last dice in a fight to avoid digging into its pocket to pay two teachers who want to be remunerated from as far back as 2013, the time a new policy was introduced.
The teachers, Elijah Mlambo and Molefi Raletsatsi sued the ministry in 2015 following approval of Levels of Operation (LoO) policy by Cabinet, which was implemented in July 2013.
The two reasoned that prior to implementation of LoO, the position of Senior Teacher I was graded C1 at junior secondary schools. The position translated to Senior Teacher II at senior secondary schools. The position of senior teacher I was graded D4 at senior secondary schools.
After their transfers to senior schools from junior ones, the policy was approved bringing a position of senior teacher I at junior secondary schools at par with the position of senior teacher I at senior secondary schools.
It was as a result of this that the applicants instituted proceedings in May 2015 where they sought, amongst others, the following remedies; assimilation to a salary scale of D4, remuneration from the date of implementation of the LoO and upgrading to positions of head of department or alternatively to be given the opportunity to apply for higher positions. Now the ministry is appealing the High Court decision at the Court of Appeal fearful to lose millions in the suit. The High Court had decided that the teachers be assimilated to the salary scale of D4 and that they be remunerated at that scale from the time that the LoO policy came into effect. The court arrived at its decision reasoning that the teachers were disadvantaged by their transfers. On one hand the ministry through the Attorney General, is disputing the judgement on the grounds that if they deemed the transfers not to be lateral in terms of position and responsibility, they ought to have taken steps against the transfers within a reasonable time instead of waiting for years as they did.
“If the applicants were of the view that the process leading to their transfers was unfair, for whatever reason, alternative remedies were available to the applicants to challenge the substantive and/or procedural fairness of the transfer,” read the ministry’s papers. The ministry reckons that the respondents had the opportunity to approach the court to intervene at the commencement of the transfers but they elected not to do so. The ministry’s argument is that even if there was some basis for the applicants to challenge the transfers, they should have done so at the time when the transfers were instituted, or during the implementation of the decision to transfer them. “It would be an over-stretch
Moreover, the ministry argued that in any event, the transfers were to comparable posts and done in good faith, and having found that they could not have known at the time of the transfers that the teachers would be disadvantaged by the LoO policy. On that account, the ministry decried that the court a quo erred in concluding that the appellants acted insincerely and were dishonest. For the reasons, the ministry submitted that the court a quo misdirected itself in reaching the decision that the teachers not be assimilated to salary scale D4 and that they be remunerated from the time the policy was implemented. They want the decision of the High Court set aside and that the appeal be upheld with costs.
However the teachers, in the responding papers want what is owed to them since the approval of the policy. The teachers who are represented by Ndawana Dubani & Company maintain that the posts to which they were transferred to seriously and severely disadvantaged them in that they have not benefited from the policy while their colleagues at junior secondary schools did benefit, with the effect that the latter progressed to higher positions.
In their replying affidavits, the teachers also alleged that they were not placed in comparable posts in terms of regulation 114 of the Unified Teaching Service Regulations of 1979.
According to the papers, Regulation 114 provides that the director may transfer a teacher from the school where they are serving to a comparable post in any other government school.
“The posts were not comparable in that at junior secondary schools senior teacher I forms part of management whereas senior teacher II at senior schools does not, therefore we feel cheated,” said the teachers. Further on the teachers argued that they were not challenging the policy nor its validity, but rather the application of it towards them prior to their transfers, which they deemed unreasonable and discriminatory.
They feel it is in violation of their constitutional rights protected under section 15 (2) and that it was in breach of section 7 of the Public Service Act, as they are not treated fairly.
On those grounds, they want the appeal by the ministry dismissed with costs and the order of the High Court confirmed.