CoA comes to SB's rescue
Mpho Mokwape | Friday May 4, 2018 14:07
Employees represented by Botswana Public Employees Union (BOPEU) had taken the employer to court over pay disparity.
Following the determination of the matter at the High Court in November 2016, SB appealed to CoA seeking the court to set aside the judgement.
The judgement had declared that the organisation’s disparity in the pay structure of employees where employees doing the same job at the same level and holding same or similar qualifications was unlawful.
The judgement also ordered that employees performing the same functions at the same level of operation, duties and having same or similar qualifications be declared entitled to the same remuneration.
Justice Singh Walia of the CoA however, agreed to set aside the judgement and allowed the matter to be taken back to the High Court for continuation before a different judge.
Walia said it was so because despite the parties having approached CoA prepared for a bruising encounter, they had agreed at last that the judgement of the court a quo could not be allowed to stand as the Judge had made an error making determination on a matter that was not before him. “It is not necessary to traverse the argument before us on the rationale for remitting the matter, save to say that the court a quo had proceeded to rule on matters not before it and failed to rule on the matter properly before it. In effect therefore, there was no hearing at all,” he said.
In dealing with BOPEU’s argument that a proper action for SB to have taken was to have made an application for rescission of the judgement granted in error, Walia said they were in support of Statistics’ reasoning.
Statistics had argued that application for rescission would have been a fruitless exercise since the matter would have gone to the same forum that had wrongly made the original decision on the merits. Further, SB had submitted that the court a quo was in error in concluding that both parties had accepted the judgement.
Walia questioned why there was a need for clarification about the judgement if both parties had acquiesced to the judgement.
“The papers before us support the SB’s contention in every way. It was only at the hearing of the appeal that BOPEU admitted that the judgement had been granted in error and that the only remedy was for the matter to be remitted for re-hearing.”
Walia went on to deal a heavy blow to the employees and their union when he agreed with SB to have the cost of the appeal saying it was quite clear that BOPEU’s attitude compelled them to run with the full process of appeal when an early realisation and acceptance of the inevitable would have saved each party time and expenses.
SB was appealing the judgement mainly because they felt wrongful done by, by the court a quo and they were fearing financial collapse if they had to abide by the court order to pay the employees despite agreeing that the disparity in the pay structure was due to an error and were willing to rectify the mistake.
The organisation argued that the Judge rushed to give the judgement without determining the application, which was only on the preliminary issue of whether or not the court’s jurisdiction was ousted by the parties’ Collective Labour Agreement.
Also, SB argued that the court did not properly consider the applicant’s proposal to close the difference in payment that was being complained of and did not consider that the order was going to result in their financial collapse.