CAAB absolved from unfair labour practices
Mpho Mokwape | Monday February 14, 2022 06:00
The financially unstable CAAB was given a new lease of life by Justice Mercy Garekwe of the Court of Appeal (CoA) when she upheld the authority’s appeal against the employees.
The aviation body has been in a legal battle with 66 of its employees who were seeking compensation following the restructuring exercise carried out in 2015. The restructuring exercise had left many of the employees on demotion level.
When upholding the appeal, Garekwe said the High Court had no jurisdiction to hear the dispute between the parties since it was of interest not right.
“This is a clear case of inadequacy in remuneration which is a clearer case of a dispute of interest as opposed to a dispute of interest,” judge said.
Justice Garekwe explained that the contention by the employees that the matter was a dispute of right was an argument in futility as what clearly transpired before the High Court was that the parties did not raise the point regarding the type of dispute though it was a crucial point as it touched on the jurisdiction of the court.
She pointed out that the court a quo failed to realise that the issue before it was an issue of interest as opposed to one of right or failed to at least avert its mind to the type of dispute that was placed before it for adjudication.
“We are convinced that had the court done so, the judge would have not hesitated to rule that the dispute is that of interest considering that he has done the same in a previous case,” she said.
She noted that the employees’ interpretation of the portion of the definition they sought to place reliance on what constituted a dispute of right was flawed.
Justice Garekwe further said if indeed there was a concession or agreement between the parties that the aviation body would pay the affected employees the salary difference which they were claiming, such salary difference did not derive from any legal entitlement be it a written law or a collective agreement or an individual employment contract.
“The entitlement to the salary difference if at all there was one, does not as well flow from any existing contract of employment. The conferment of the benefit at issue, is the intention and or agreement by the appellant to pay those of its employees who were affected by the exercise during April 2014 through 2015, they were performing duties of a cadre higher than the cadre they had redeployed to under the new structure,” she said.
She noted that the issue of the difference between the salaries of the affected employees could at best be characterised as a benefit or advantage or term and condition arising from the modification of an existing employment relationship to which the affected employees have no legal entitlement.
On that note, the judge said the complaint aroused from the inadequacy in emoluments created by the performance of duties higher than those the affected employees were to be performing under the new dispensation.
The judgement by CoA comes after the aviation authority lost the case at the Francistown Industrial Court in 2018 and was ordered to compensate the employees accordingly for unfair labour practices.
It filed an appeal on grounds that the employees had failed on facts to make out a case for their claim and did not provide any evidence to court.
The CAAB said the appeal was premised over the jurisdictional power of the Industrial Court to assert compensation for unfair labour practices when the employees did not discharge any evidence to back their claim.
The legal battle for compensation aroused from separation of positions that also led to redeployment and demotion of all employees to other positions within the authority.
The restructuring that was supposed to be done in April 2014, was done in April 2015 due to what the aviation body said it was unforeseen circumstances.
The demotion of aggrieved employees was then met with a resolution to compensate the affected workers with redeployment compensation. However, after the compensation resolution was settled, employees disputed in 2016 that they had not been sufficiently compensated for their labour between April 2014 and April 2015.
Former employees who had been demoted disputed that within the aforementioned time frame, they performed the duties outside their positions thus were entitled to compensation.
In an attempt to resolve the matter, CAAB offered compensation to the employees that could provide evidence that the duties were indeed fulfilled between the time of notice of restructuring being made in 2014 and the official restructuring in 2015.