Court compels Mupane to pay employees 13th cheque
Lebogang Mosikare | Monday February 20, 2023 06:00
The bone of contention between the employees, who are members of BMWU, and MGM arose after the union rejected a mediator’s adverse advisory award which is an employment benefit that was extended to and enjoyed by MGM’s employees for about four years, and, thereafter withdrawn.
Last year, Canadian firm, Galane Gold, sold its shares in MGM to Hawks Mining Company Proprietary Limited “at a nominal fee”. When delivering judgement, Justice Galesite Baruti said that for four years or so, each MGM worker was paid the 13th cheque in addition to salaries of 12 months. “The stoppage of this 13th cheque aggrieved the respondents’ employees.
The applicant’s case on behalf of its members is that once the benefit of the 13th cheque was extended to the employees for all those years it accrued as one of their employment contracts and could not unilaterally be cancelled without a valid and fair reason through a fair procedure. As a desired outcome of its contention, applicant is seeking the following reliefs (a) An order declaring that the respondent is liable to pay its employees the 13th cheque as per the substantive issue agreement concluded by the parties and (b) An order directing the respondent to pay its employees arrears of the 13th cheque for the year 2020 and 2021,” said Baruti.
On the other hand, the respondent’s case is that the 13th cheque was a time bound benefit and was never meant to be enjoyed in perpetuity, Baruti stated. “The respondent’s contention is that the duration of this benefit was the timeframe expressly stipulated in the substantive issue agreement that the parties had signed.
In terms of that agreement the 13th cheque was to be enjoyed from April 1, 2016 up to March 13, 2019, and not beyond. That the employees were granted the 13th cheque in the year 2020 was out of magnanimity, and not as compliance with any legal obligation.
Put differently, respondent’s defence is that the 13th cheque was never a term or condition in the employment contracts of its employees, and that it cannot be enforced as such. The respondent’s prayer is that given that the benefit of the 13th cheque was ephemeral or inpermanent, the applicant's case must be dismissed,” Baruti stated. When applying the rule of interpretation on the case of John Oranja (supra), the clause on the 13th cheque can’t be construed so as to contravene the law, Baruti noted. “Construing this clause to mean that it did not operate beyond 2019 would be in contravention of the employment law that prohibits unilateral amendment or cancellation of the employment law that prohibits unilateral or cancellation of the terms and conditions of an employment contract.
Last but not least, interpreting the 13th cheque clause to mean that the 13th cheque would be granted to the employees for a limited period, and thereafter unilaterally cancelled, leads to an absurdity, injustice and unfairness. Interpretation in favour of the employees must therefore be applied, meaning that the 13th cheque became part of the terms and conditions of the employment contracts of the respondent’s employees,” Baruti continued. On the basis of the foregoing reasoning, Baruti added, the answers to the questions of the law that the parties have posed in their stated case are as follows: “(a) There was a contractual obligation on the part of the respondent to pay its employees the 13th cheque of the year 2021 because this payment forms part of their terms and conditions of service and (b) The respondent’s non-payment of the 13th cheque of the year 2012 constituted a breach of one of the terms and conditions of its employee’s contracts.
The applicant’s case must therefore succeed.” When determining the foregoing findings and analysis, Baruti ordered as follows: “(a) The applicant’s case succeeds and the respondent is liable to pay its employees the 13th cheque for the year 2021 as per the substantive issue agreement concluded by the parties (b) The respondent shall pay its employees the 13th cheque referred to above at paragraph (a) within 14 days and (c) No order is made with respect to costs.” Asked for BMWU’s take regarding the judgement, the union’s Executive Secretary Karabo Phiri welcomed it.
Phiri said that BMWU and its members have been vindicated by the judgement following an adverse mediation award that was awarded to Mupane at the Department of Labour. “We believe that the judgement will mark a turning point between our relationship and Mupane. The rights of our members have been vindicated. Our relationship with Mupane has been on a downturn over the years.
Following this judgement, we believe that it is now time for BMWU and Mupane to meet and engage over other outstanding issues such as the sale of Mupane to Hawks Mining Company Proprietary Limited amongst other issues,” said a jovial Phiri. However, Phiri stated BMWU has heard speculation to the effect that the current owners of the mine (Hawks) want to appeal the judgement adding: “As of now I don’t have any documents from Hawks indicating that they will be appealing the judgement.” Repeated efforts to contact the General Manager of Hawks, Cedric Sam, to enquire if the mine will be appealing the judgment were futile because he was not answering his phone.