Limkokwing to pay former employees or face the hammer
Mpho Mokwape | Tuesday August 17, 2021 06:00
The institution, which escaped a sale in execution last year for allegedly failing to pay salary arrears to its former employees, recently lost its appeal at the Court of Appeal hence the new twist of events.
The university has been in a legal battle with 42 of its former employees for failure to pay salary arrears and last year everything came to a stand still when its properties were to be auctioned following a default judgment award issued against it by the Labour Office.
The campus is now faced with a dilemma after the highest court rejected its appeal.
When rejecting the university’s appeal, Justice Leatile Dambe confirmed the judgement handed down by the Acting Arbitrator at the Labour Office which was a default judgment following failure by Limkokwing to send representation.
Justice Dambe explained that what transpired at the arbitrator’s office on January 22, 2019 where the universirty failed to show up and later sought a postponement did put the entity in a bad light especially that it argued that there was no consent to the process.
“The detailed interaction outlined above clearly reflects the appellant as a party who displayed obstinate resolve that it was not going to play its part in the resolution of the dispute. But whatever disinterest the appellant put across that did not negate the fact that communication between them and all stakeholders points in one direction that there was consent to the process,” she said.
Justice Dambe further said the first critical issue was that the university in their affidavit supporting the reversal of the default arbitral award admitted through their human resource manager that the referral to arbitration was by consent of the parties.
She pointed out that over and above direct admission by the university there were steps taken in preparation of the hearing before the arbitrator, which profoundly revealed that there was requisite consent.
“Besides the clear indication that there was consent to the arbitration process, the arbitrator had also written to the university requesting certain documents that were in its custody to enable him to prepare a balanced ruling to which they replied by saying it was too expensive to produce the required documents,” she said.
Regarding the university’s contention that the matter was not arbitral since the employees were at some point represented by a union, Justice Dambe said it was evident that the parties in the case both at the arbitrator and Industrial Court approached the court in their personal capacities.
She explained that there was nowhere in the record or in the proceedings before the arbitrator where the union featured as representative for the employees.
At the backdrop of the case is that according to court documents seen by this publication on February 19, 2019 a part time arbitrator Thembo Lebang awarded the former employees default award against the university giving them leverage to auction the university’s property to recover their owed salary arrears.
This was reportedly after the university failed to show up at the set time on January 22, 2019 after both parties reportedly agreed to go for arbitration at the Labour Office.
“By a letter dated December 12, 2018 the Commissioner of Labour advised parties to the dispute of the decision to have an arbitration hearing. At the set time and venue both the arbitrator and the applicants were ready to commence the hearing but the respondents had not arrived. No word was received from them until late citing transport difficulties,” read the documents.
Subsequently leading to a default award the university representatives failed to pitch up for the hearing on time.
However, the university through its late lawyer Moses Kadye successfully stayed the sale in execution at the Industrial Court through an order issued on May 31, 2019 while filing an appeal against the arbitrator’s decision.
The case moved to the CoA as the university was appealing the decision on grounds that among other things the part time arbitrator erred in law by determining and dismissing their application for the reversal of the default award without affording them an opportunity to be heard.
Meanwhile, the dispute started when the former employees accused the university of owing them salary arrears under two claims.
The former employees wanted the university to pay salary arrears for the three percent annual salary notch for experience as it was agreed in the 2012 Collective Labour Agreement.
According to the applicants’ case, they were employed by the university in their different capacities at various dates of employment.
Their contracts of employment were then terminated on grounds of operational requirements in January 2017.
Their claim is reportedly in two parts, one being that up until March 2016 they were each paid a monthly salary, which had been increased annually by three precent, as agreed being a registered collective agreement that was submitted to the arbitrator prior to the hearing.
The applicants claimed that they got the three precent annually from April 2012 but only realised that respondent did not do so from April 2016 until January 16, 2017 when they were retrenched.
On the other claim, it was that still in 2012 the parties agreed to an interim salary structure pending the conclusion of the job analysis and evaluation exercise which was being carried out.
According to court documents, the applicants claimed that the university implemented the agreed interim salary structure in 2012, which was later replaced by another unknown one to them in 2013.
Moemedi Junior Tafa represented the university while Obonye Jonas represented the former employees.