BPC ordered to pay former employees
Mpho Mokwape | Thursday May 22, 2014 17:11
In his dismissal, Judge Monametsi Gaongalelwe said that the policy document introduced in 2009 should not be cause for the delay in responding to the applicants. The three, after submitting their exit package applications, waited for their due benefits as stipulated in the employer’s contractual obligation and policy guidelines.
He explained that the company’s rejection of the applicants in 2009 only to later be reconsidered in 2011 was just a delay tactic so that they cannot benefit from the first category that they initially qualified for.
“It is common cause that the decision of the assessment panel treated the applications as a fresh whereas they should have been treated as old applications to afford the employees the opportunity to get what they applied for,” said Gaongalelwe.
Gaongalelwe also dismissed the company’s grounds of budgetary constraints saying that it would be totally unreasonable to suggest that the company introduced the scheme when unprepared for its implementation from the start.
“The defence that the company could not manage to pay the terminal benefits in 2009 as a large number of employees applied for exist packages cannot be used to prejudice those that stand to benefit according to their contractual term,” he said.
He also said that the former employees are not claiming damages as stated by the company, but simply demanding performance of a contractual term pointing out that claims for damages were raised for the first time on the appeal.
“The law is that a party that wishes to raise a preliminary point to defeat the claim must do so at initial stages of the case not on the appeal. At any rate this is a matter where even if the case was dealt with as a claim for damages such would be contractual damages the ascertainment of which would only involve arithmetical calculations,” he said.
Robson Phumaphi, David Kgano and John Maphakwane opted for an early exit in 2009 just before the company introduced changes to a policy that stated that the three would stand to benefit maximum terminal benefits for their continuous service over a period of not less than 26 years.
The policy also had two categories classified under the ages for those wishing to apply, the most lucrative being the first category, which stated that those from 45 to 54 years get the maximum terminal benefits as their package is computed to P42.50 per day each served whereas under the second category it is computed at the rate of P30 per day.
In 2009 the three employees qualified for the first category, which was the more lucrative one meaning they stood to get maximum benefits. However, the company rejected their applications, only for it to rescind the decision and reconsider the same submissions in 2011 when they were already above the age of 54 subsequently falling under the less lucrative category.
The three former employees challenged the response in court arguing that the company should have computed them in the first category as at the time they originally tendered their applications they duly qualified for the more lucrative category.
The Lobatse High Court then ordered the company to pay their dues as of 2009 when they applied, however the company appealed the decision.
Justices Isaac Lesetedi and Elijah Legwaila concurred with Gaongalelwe. Attorney Wada Nfila acted for the ex-employees while Sipho Ziga represented their former employer, BPC.