BEC dragged to Court over backpay

The High Court in Gaborone
The High Court in Gaborone

Botswana Examinations Council (BEC) employees, have taken their employer to Court demanding settlement of outstanding payments for salary increments dating back to 2013.

They are being assisted by the Botswana Public Employees Union (BOPEU) as members of the Union. The members of staff are seeking payment of the money they said is owed to them from a resolution taken in 2013 by the Council to increase salaries. The move came after a review suggested that the Council was paying below-market rates.

According to papers filed by the staff members, the review had suggested that employees who are at the lowest band be awarded a three percent adjustment each year for two consecutive years while it was also decided that for fairness, other staff would also receive a three percent raise.

Staff members say BEC paid 50% of the adjustment in 2013, but failed to pay in 2014 and 2015.

A payment was made in 2016, but excluded some members of staff who had either been promoted, left BEC or passed away in the process.

Arguing on behalf of the workers, attorney Uyapo Ndadi said the resolution by Council, taken on June 19, 2013, bound the employer to pay all its employees (past and present) what they were entitled to.  “It is immaterial that circumstances might have changed while they were in the office between April 2014 and April 2016,” he said.

He said that the respondent’s reasoning that it did not have the budget does not hold water, as it understood the resolution clearly. 

Ndadi said that the respondent paid some of its staff the full amount of the agreed package in 2013, and therefore it would be discriminatory against others if it gives some 100% in 2013 while others are given 50% and still others had to wait another two years to be cleared in 2016.

“Certainly, this would go against a fundamental employment position,” he said. He said that the resolution in essence created rights and benefits of remuneration to the respondent’s employees, and is akin to an undertaking.

He said that the increase is not a favour, but an entitlement to the employees and the respondent is bound by the resolution to effect it, no matter whether it has a  budget or not. In an answering affidavit, Batlhalefhi Moeletsi, an attorney representing the BEC, said that staff members’ application should be dismissed with costs as the argument was misconceived.

He said it is not disputed that there is no agreement between the applicant and respondent on the issue of backpays in respect of the implementation of the Council’s resolution.

Moeletsi said that the applicant is in fact vague in its argument that the resolution created rights and benefits to the applicant’s members. He also argued that the resolution was never a contract, as the signatories to that ‘contract’ cannot be identified. 

“The resolution was just an undertaking by the respondent on how it sought to address the problem in its salary structure and nothing more,” he said.

Yesterday, at the Gaborone High Court, Justice Zein Kebonang delivered a consent order by the two parties that the BEC should submit the minutes of the meeting, which resolved to adjust the salaries of the applicant’s members.

The minutes should be submitted within 14 days of the order.  He also ordered that the applicant to pay the legal costs of yesterday’s Court proceedings.  The case will return to Court for arguments on April 26, 2017.

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