Manual Workers Union wins against ex-employees
Goitsemodimo Kaelo | Wednesday October 19, 2022 11:40
The union, National Amalgamated Central, Local and Parastatal Manual Workers’ Union, had been dragged before the Industrial Court by the ex-employees following the October 2021 restructuring exercise.
According to court papers, Karabo Ditau Matale, James Dagmore, Keatlaretse Tshenyego, Tshepiso Mpofu, Serwalo Tirelo, Kefilwe Banda, and Kelebogile Kgatlhego wanted the Court to compel their employer to pay them 12 months’ compensation for unfair retrenchment.
They also wanted the court to declare that they were entitled to payment for accrued leave days as part of their retrenchment package as well as payment for the unexpired period of their fixed-term contracts.
The said employees, who were either on fixed-term contracts or permanent employment, had left the union through the early exit policy option as advised in a memo offering a significantly more favourable payable package than involuntary exit.
However, in his recent judgment, Justice Christian Diwanga of Francistown Industrial Court dismissed the application and ruled in favour of the union. The judge dismissed the claim of unfair retrenchment as he found out that the termination of their employment contract was through mutual consent.
“In my judgment, the termination of the applicants' employment was through mutual agreement. The court, therefore, finds that the applicants were not retrenched but their employment was terminated through mutual separation. "The claim for the unfair retrenchment on this ground alone is dismissed as unmeritorious,” stated Justice Diwanga in his judgment.
When dismissing the claim for payment for the balance of their annual leave days Diwanga said the applicant’s claim falls outside the reasonable period prescribed by Section 6 (7) in respect of the time their leave entitlement first accrued.
Justice Diwanga found it amiss that the applicants only query their leave entitlement upon the termination of their employment, having accepted the 20 days annual leave they were granted during their employment.
The judge explained that in terms of Section 5 (7) of the Trade Disputes Act, claims for entitlement should be reported to the Labour Office within 30 days or within a reasonable time from the time the entitlement first accrued or the time the entitlement came to the knowledge of the employee.
“Leave claim is an entitlement and as such falls within the purview of Section 6 (7),” Diwanga explained.
Justice Diwanga also dismissed the applicants’ claims for payment of the balance of their fixed-term contracts.
The judge said this is so because it would defeat the whole purpose of why the union decided to restructure, which was to address the huge wage bill of the union.
Diwanga said if the purpose was to address the huge wage bill, it would not be in line with that purpose to pay the fixed-term employees the balance of their fixed-term contracts.
“That would defeat the whole purpose of the exercise because if the respondent had the money to pay fixed-term employees the balance of their contracts, it might just have let their contracts expire."
A brief description of the court case indicates that on or about September 28, 2021, the applicants (who are the employees), were summoned to a staff meeting by then union CEO, Jonhson Motshwarakgole who informed them of the union’s decision to embark on a restructuring exercise and that all employees were likely to be affected by the process.
It is said that on October 4, the union issued an internal memo entitled 'Notice of Intention to Embark into a Restructuring Exercise' advising the workers that the reason for the restructuring exercise was to reduce costs associated with the payment of salaries.
However, after a series of meetings on October 29, the applicants received letters that notified them that their early exit packages had been approved and that their employment contracts had been terminated with immediate effect.