National Registration Officers Win Against Employer
Goitsemodimo Kaelo | Tuesday August 31, 2021 09:02
The officers will now be paid for this extra workload, in line with their conditions and terms of employment governed by the Public Service Directive No.27 of 2014, which constituted the new scheme of service.
This follows a Court of Appeal (CoA) judgement, which brought to finality a legal battle between the officers, the Directorate of Public Service Management and permanent secretary (PS) in the Ministry of Nationality, Immigration and Gender Affairs.
The Botswana Public Employees Union (BOPEU) represented the officers. BOPEU had dragged the employer to court demanding compensation for its members employed to perform extra duties that they were not supposed to be performing.
The union argued that despite the introduction of the new scheme of service, its members were still remunerated as per the old scheme of service. An example of the duties involved is that of revenue collection. On Friday, CoA’s Justice Monametsi Gaongalelwe alongside CoA president Ian Kirby and Justice Zibani Makhwade dismissed the government’s appeal. They then ordered that the officers ought to be remunerated for performing extra duties assigned to their senior officers in terms of the new scheme of service.
Justice Gaongalelwe said it was interesting that while there was an agreement in place that the duties would be revoked, the government tried to deny that the officers are still performing the duties, which were removed by the new scheme of service.
He added a savingram dated November 11, 2016, authored by the ministry’s PS was a clear concession that the concerned officers are to be compensated somehow. The savingram stated that “as the ministry cannot determine the monetary value of only two objectives/duties, we seek your advice on how to compensate the officers to facilitate closure of this case”.
The CoA ruled the employer was wrong to say General Orders allow for officers concerned to perform whatever duties assigned by the PS because they are not statutory instruments of which the court can take judicial notice.
“It is my considered view that a mere policy, which is nebulous and undefined cannot prevail over the expressed terms and conditions reduced to writing. After all, the purpose of issuing the new scheme of service must have been to cure some mischief in the old scheme of service in directive No. 8 of 2005,” Gaongalelwe reasoned.
While the CoA ordered government to compensate the officers for performing extra duties not within their scope of work, it could not provide a solution on the modalities of determining the monetary value of the duties in question.
The CoA stated that it is for the parties to work it out.