PEEPA interdicted from rescinding employees' salary increments
Mpho Mokwape | Friday August 14, 2020 12:58
The salary adjustments were extended to the said staff members by former chief executive officer (CEO) of the government privatisation agency, Ezekiel Moumakwa, on condition that their performances were impressive. The CoA also interdicted PEEPA from making any adverse charges to those increments. The agency was then ordered to pay the five employees with immediate effect the salary package difference that it deducted from the applicant’s salaries in November 2019 and at any time since.
PEEPA had appealed to the apex court after losing a case at the Industrial Court where the said employees had lodged the matter. This was after the acting CEO revoked the salary adjustments the employees had enjoyed for a period of seven months. In his judgement CoA Judge President, Justice Ian Kirby said the interdict would remain in operation for as long as there was no agreement between the parties, resulting from the fair labour law process resolving the dispute.
Kirby explained that the view was reinforced by the CEO’s own explanation that the adjustments were neither a salary increase nor adjustment. Rather, they were ‘performance based increments’ which required no Board approval since they were awarded by the CEO in terms of his power to operate within the existing salary structure. “It was only changes to that structure which would require Board approval. That is not a controversy to be resolved by the Court but it does demonstrate the need for the Board to exercise exceptional care in its choice of a CEO, whose powers are extensive,” Kirby said. Kirby pointed out that there was a need for the Board to advise its CEO specifically and in writing of those of its powers, which are delegated to him or her, and those, which are not. He said the employees had made a case at the Industrial Court justifying the grant of interdictory relief while PEEPA in its opposing papers failed to establish that the CEO’s actions were clearly beyond his powers. “There was no misdirection by the judge in that regard,” Kirby said.
However, the Judge President acknowledged if the revocation was to take place it clearly warranted a fair process under labour law that could ultimately involve the Labour Office and the Industrial Court.
He explained that the process would normally include consultation and the granting to an employee of the right to make representations before adverse action was taken, and also the right thereafter to seek mediation by the Labour Officer as a route and finally to the Industrial Court.
The five PEEPA employees; Mothusi Mokoto, Mooketsi Kgosibodiba, Letshego Moeng, Mpho Seretse, Segomotso Matswiri were in March 2019 awarded substantial salary increases, termed ‘salary increments’ by the then CEO, Moumakwa, in recognition of their exemplary performance. According to court documents in their letters notifying the award, the CEO addressed each of them except one employee. “There followed in each case their new remuneration details. The increments were accepted by all of them and were implemented,” read the documents.
Later in the year the CEO was apparently subjected to a disciplinary hearing and was dismissed by PEEPA.
Then in November 2019 when each of the five employees had received their enhanced salary for seven months, they received a letter from the then acting CEO, Ishmael Joseph in which he reversed or purported to reverse their salary increments with effect from the same month.
The court documents further indicated that it was on the grounds that the increments were not authorised by the PEEPA Board and were not in any circumstances justified nor legitimate.
The announcement followed a meeting of the PEEPA Board in which a decision to revoke increments was taken.
The employees then took legal action on December 6, 2019 by lodging an urgent application with the Industrial Court where they sought amongst others a declaration that the revocation of their salary increments was unlawful.