Twenty-two industrial relations officers who had taken the former Director of Public Service Management (DPSM), Carter Morupisi, to court arguing that they were eligible to be paid scarce skills allowance have lost the case.
But the employees did not go home empty handed as the court ordered that each one of them be assessed and considered for progression. Upon hearing attorneys for both parties, Justice Modiri Letsididi ordered that union members who were employed, as mediators under the Ministry of Labour and Home Affairs (MLHA) were not eligible to be paid the scarce skills allowance.
Letsididi also ordered, “Each of the union be assessed and considered for progression and be placed in the correct grade and be remunerated accordingly”. The respondents, namely DPSM, Attorney General and MLHA Permanent Secretary shall pay 50 percent of the applicant’s costs.
The 22 employees who work in the Department of Labour and Social Security wanted an order directing that each of the union members be assessed and considered for progression and be placed in the correct grade and be remunerated accordingly.
They also want the court to direct that each of the affected union members be paid the cash difference between what they were actually paid and what they would have been paid had they been properly remunerated all along.
Through the Botswana Public Employees Union (BOPEU) the employees explained that amongst the scope of their duties was to work and render the service of ‘mediators’ as delineated in the Trade Disputes Act (TDA). In his affidavit, the BOPEU president Andrew Motsamai said the condition for scarce skill allowance entitlement was not concerned with the ‘title’ or ‘designation’ of an officer, but rather with the functions or duties being performed by the officer.
“There was in fact a condition that the list of cadres in the Directive of Scarce Skills Occupations contained therein is not exhaustive as ministries were allowed to provide lists of individuals and their qualifications and duties who are performing the scarce skills occupations. In terms of the savingram, each ministry or department was required to submit a list of all eligible officers to the Accountant General for the processing of the payment of the scarce skills allowance,” wrote Motsamai.
Motsamai also said the 22 employees performed the duties of mediation under the TDA. He further said in this role, the applicants were appointed by the minister to a panel of mediators and arbitrators. He argued that section 3 (3) of the TDA required mediators and arbitrators appointed to the panel to have expertise in labour law or labour relations or other specialist areas.
“I wish to point out that the mediators serve a critical role in their labour dispute resolution system of Botswana. The Industrial Court, a specialist court, will not assume jurisdiction in any matter, which has not been mediated upon. The only exceptions are direct referrals by the Commissioner of Labour and the other common one is with matters that are regarded as urgent, where in any case the court has to be first satisfied as to the urgency of the matter failing which it will direct the matter for mediation.”
He said their role of the applicants also called upon them to interpret the law. In response to the lawsuit, the Commissioner of Labour and Social Security, Rose Sennanyana, said her attorneys had advised her that the application was seeking orders for specific performance.
“I have been advised by my attorneys that an order for specific performance is not competent against the government by virtue of section 9 of the State Proceedings (Civil Actions by or Against the Government or Public Officers),” said Sennanyana. She also stated that the list of those who qualify for scarce skills allowance does not mention “industrial relations officer, mediators or paralegal, it however mentions other legal professionals”.
She said it was not true that the entitlement of the scare skills allowance was not concerned with the designation of an officer. “I do state that entitlement is based on whether a person possesses the relevant and appropriate qualifications, but also performs the functions and duties of the scarce skill occupation,” said the commissioner. However, she conceded that each ministry was asked to submit a list of eligible officers to the Accountant General but averred that the applicants did not qualify and were not eligible for the allowance. She also pointed out that being appointed by a minister to a position in exercise of a power conferred by an Act of Parliament is not peculiar to mediators only. “I state that the union members have been appointed mediators as they possess other specialist areas of expertise as recognised by Section 3 (3) of the Trade Dispute Act.” Sennanyana explained that mediators listen to parties, persuade the parties to an amicable settlement but do not even issue a written award.
They rather issue relevant certificate based on the outcome of the case like the certificate of dismissal, settlement or appeal.
“Only in special circumstances do mediators issue written advisory awards.”