Limkokwing guilty of unfair staff sacking
Mpho Mokwape | Monday April 11, 2022 06:00
The university is now supposed to fork out payment for 52 former employees who were retrenched during a 2017 restructuring exercise reportedly carried due to the declining number of students admission. In a recent ruling by Justice Isaac Bahuma of the Gaborone Industrial Court said the retrenchment was unfair both substantively and procedurally.
“The university is hereby ordered to pay each of the concerned applicants compensation of three months salary.
The calculations of salary shall be based on the applicants’ salary at the time of dismissal excluding other benefits like housing, and telephone allowance,” he said. On reasons on procedural fairness, Justice Bahuma said the university went through the retrenchment process in a wholesale manner without following due process.
He explained that there was evidence on record to this effect, which was not disputed and furthermore that those likely to be affected by the retrenchment were not isolated and dealt with, what purported to be consultative meetings was attended by everyone even those not affected. “This diluted the consultative process because the attendance of meetings for example, has to be judged against the number of employees affected in attendance.
It may well be that of those who attended the purported consultation, none of them were affected by the retrenchment,” Justice Bahuma said.
Justice Bahuma said during the retrenchment exercise, consultation was critical as it gives the process the texture of fairness and that it must therefore be meaningful.
He noted that he was aware that the employer had argued that the former employees did partake in the consultative exercise and that they did in fact come up with ways to improve enrollment therefore they could not turn around and dispute the enrollment figures. “The burden of proving that the retrenchment exercise was based on valid commercial reason is on the employer.
The burden cannot be affected or removed by the employees’ participation in the consultation process,” he said. Justice Bahuma pointed out that in the case, the employer called two consultative meetings one on December 8, 2016 and another on January 6, 2017, the first meeting being attended by about 130 employees and the second by far less. He lamented that it was not clear from the evidence if the 130 employees consisted of employees likely to be affected by the retrenchment or was it just a general meeting of all the staff members.
In conclusion the judge said the applicant’s retrenchment was unfair substantively and procedurally and that the applicants ought to be compensated accordingly. On the issue of compensation, Justice Bahuma explained that he considered among other things that it was not easy to get employment in the current economic climate as evidenced by the fact that all the four witnesses called by the applicants remained unemployed to date.
That retrenchment happened five years ago and the compensation was based on salaries at that time without regard to soaring inflation and that the applicants are not young, most if not all are over 40 and chances of getting employment are slim.
Further, the respondent has not demonstrated inability to pay compensation and that there was an expectation that the applicants should mitigate their losses. “The court having considered all the above as well as guidance provided by the Trade Dispute Act, finds that compensation of three months salary for each of the applicants is fair and just and is accordingly granted,” he said.
However the judge dismissed the applicants’ claim for overtime and made no order for costs. The workers’ case was that they were employed by Limkokwing in different capacities until they were retrenched in 2017. The former employees then filed a case claiming unfair dismissal and sought compensation. “The applicants brought two claims, the first of being retrenched unfairly and seeking compensation while the 44 applicants are further claiming overtime of 30 minutes per day worked from 2007 to 2017,” said the applicants.
The university’s case was that the retrenchment exercise was fair and that the former employees were not entitled to any compensation. They contended that they have followed all the legal requirements of a retrenchment exercise and there was no basis to finding the granting of compensatory award.
“The university contends that whilst they concede that the former employees worked for nine hours and a half, the extra half hour worked is not payable because it was a lunch break and the applicants were not rendering any service to the respondent during that period,” reads the university papers.
Meanwhile, it is not the first time the university forks out funds to pay employees as last year it was ordered to pay its former employees salary arrears running over one million pula.
The university had at the time escaped a sale in execution in 2020 for allegedly failing to pay salary arrears to its former employees. They lost the appeal at the Court of Appeal after being in legal battle with 42 of its former employees. Moemedi Junior Tafa represented the university while Obonye Jonas represented the former employees.