Former DPSM employee wins scarce skill fight

Goitsemodimo Kaelo | Friday May 17, 2019 12:54

 

CoA justices Singh Walia and Leatile Dambe led by Isaac Lesetedi recently dismissed with costs an appeal by the Attorney General (acting on behalf of Directorate of Public Service Management or DPSM) and ordering that Buisanyang should be paid the 25% scarce skills allowance which must be computed from the date of his appointment as a management analyst.

Buisanyang worked as management analyst from July 2008 to March 2014.  During the period, the government introduced scarce skills allowance as a retention measure in respect of certain occupations in the government service.

The scarce skills allowance was payable at a specified percentage of the officer’s salary dependent on the level at which government considered to be in line with the level of scarcity. 

At the time of the introduction of the allowance, management analysts was one of the occupations eligible to benefit from the scheme at 25% allowance, however the employer said Buisanyang was not entitled to the allowance.

He then instituted proceedings in the High Court seeking an order declaring that he possessed relevant and appropriate qualifications and fully performed the duties of a management analyst entitling him to a 25% scarce skills allowance retrospectively.

That he did from the date of implementation of the Directive in 2008 up to the date of his resignation from the government employment.

He sought back payment of that allowance and costs of suit and succeeded. DPSM appealed the High Court decision.

When delivering judgement on the appeal, Justice Lesetedi said the 2008 Directive in introducing scarce skills allowance conferred at the most a right upon those occupants who were entitled to the allowance that such allowance will be paid at the prescribed rates subject only to those terms which are set out in the directive.

This, he said, meant that the entitlement could not be taken arbitrarily. “In a dispensation of the rule of law the exercise of administrative power is fettered if not by statute, but by the rules of natural justice which require such power to be exercised fairly and not arbitrarily,” he said.

He said the public authority could not lawfully set out preconditions under which, it can adversely affect the rights of its officers and then unilaterally decide to disregard those preconditions to the officers’ prejudice. Justice Lesetedi further said the Directive created a legitimate expectation that the allowance will only be withdrawn on the happening of certain specified occurrences.

“The concept of legitimate expectation is well established under our law. I find the conclusion reached by the court a quo as to the Respondent’s entitlement to scarce skills allowance to have been correctly made and the appeal to be dismissed with costs save that the entitlement to the scarce skills allowance must commence from the date of his appointment as a management analyst,” he added.