Today's work space

JOSEPH MASANGO | Wednesday June 1, 2011 00:00

In the previous article I touched on different types of mistakes which take place in the work space, and gave an example of the mistake of offering a candidate a higher salary than intended.  As said then, it is difficult in the context of a unilateral mistake to escape being held to the contract unless the mistaken party can show that the other party knew of the mistake, or ought to have known of it as a reasonable person, or caused the mistake. 

Before signing a contract, people are known to misread it or simply glance through it instead of studying and understanding it.  If this leads to making mistakes, such is not taken as a iustus error (reasonable mistake). 

You will stand held to the contract.  At the request of some readers, further instances of mistakes are exampled below.

Case 1: A Human Resources Manager amended contracts of certain senior managers, to notify them that following a restructuring of management grades, the Board of Directors had approved paying them, among other things, a certain monthly allowance.  Later, the company argued that it had included the provision of the said allowance in the contract by mistake.

The managerial employees affected filed a court application for, among other things, an order that they were entitled to payment of the allowance.  The trial court (a foreign High Court) established that despite the managers previously raising this issue, the company had failed to notice or raise or notify them of the mistake, and was only doing so three years later.  This, and other observations, spelt the demise of the company's case.  Agreeing with the High Court and finding for the employees, the Supreme Court held that the company should be bound by the contract, as the mistake was grossly unreasonable.

The importance of signatories studying and understanding a contract before signing it cannot be overemphasised.  You can easily commit your company to unplanned finances, and further trigger labour relations problems (other employees' feeling of unjustified differential treatment of staff who do the same work).  The mistake can also prove costly by compromising your organisation's staff retention strategy.

Case 2: To settle a dispute, a District Labour Officer recommended that an employer pays the employee a certain amount.  The employer proceeded to give the employee a cheque in line with the recommendation.  In turn, the employee accepted and cashed the cheque.  Despite this, the employee took the matter to the Botswana Industrial Court.

The employee argued that he did not realise (was mistaken) that by accepting the cheque without more as he did, it would mean accepting the Labour Department's recommendation.  He blamed the Labour official for not advising him not to accept the recommendation when the official saw that he wanted to take the matter further. 

Among other things, the court noted that he did not display tell-tale signs of low level of understanding to suppose that he did not know what he was doing.  His failure to appreciate the legal implications of accepting and cashing the cheque could therefore not amount to a iustus error.  The employee was held bound by the settlement.

Trends show that tendencies such as presented in this very case are quite common.  If you are not sure of what a recommendation from the mediator means, you may, free of cost, ask the workers' committee, the Shop Steward, or such, or the mediator, to help you understand it, before being party to it.

Case 3: The Board of Directors resolved that certain non-designated houses should be sold to its employees who were sitting tenants.  The employees involved received, accepted and signed offer letters to purchase the houses. 

They also made payments for full purchase prices as well as for fees and stamp duty. The company attended to conveyancing of the properties via its legal practitioners.  It was at the stage of engaging transfer formalities that the company says it realised it had made a 'scandalous' and 'a terrible mistake' in deciding to sell the houses.

It proceeded to cancel the sale, and sent the employees cheques to reimburse them for their payments.  The employees refused to accept the cheques, and insisted on finalisation of the transfer of the properties to them.

They approached the High Court (foreign) seeking an order compelling the company to effect transfer of the houses.  Apparently the company took an unreasonably long time to discover the alleged mistake.  There was nothing argued to show that the company made a material mistake.  These findings, among others, were such as not to convince the court that the defence of a mistake raised by the company amounted to a iustus error, to excuse it from being bound by the sale agreement.   The court was of the view that the decision not to sell was more of an 'after-thought'.

Further examples: Mistakenly offering a job to X when the company found Y the one most suitable; mistakenly  undercharging a customer; mistakenly over-paying wages to an employee; mistyping the end-date of a contract of employment; and mistakenly accepting a tender from X when Y won the tender.  I again stress that some mistakes bind you, while others do not.

What is important for our purposes is not so much the court rulings themselves (as the facts presented determine the outcome).  Rather, it is the need for managers and other employees to do their work 'right the first time', and as if there were no tomorrow for making corrections.  That way, you put distance between danger and yourself and/or your organisation.  Again this article is far from being exhaustive on the issue of mistakes.  For example I did not cover what is called a common mistake.

*Masango is in the Doctor of Laws (LLD) programme.  He writes fully and completely in his personal capacity.  As such, his views do not represent, in any way whatsoever, those of any institution or organisation/s he may be associated with however and whenever.  Contact him on Email: trendsglobal@yahoo.com or on cell: (267) 71313730 or land: (267) 2971547, after hours.