Wednesday, May 27, 2020

Agric ministry employees win class suit against unfair discrimination

Scores of employees in the C Band grade at the Ministry of Agricultural Development and Food Security recently won a class suit in which their employer was ordered to ensure that the affected employees benefit from a 2007 Savingram and 2008 Directive on multi grading and titling of the entire C Band position.

In the judgment delivered on December 4, 2019, High Court judge, Justice Godfrey Nthomiwa in the lengthy judgment further ordered that the ministry’s failure to  extend to the affected 176 employees’ the benefits of the Savingram and Directive on multi titling and grading of C-Band positions is unlawful and to that extent discriminatory.

The presiding judge further ordered that the undertaking together with the extensions of benefits to the plaintiffs’ colleagues occupying C-Band positions created a legitimate expectation on the part of the affected employees and the employees, depending on their performance are entitled to be placed in the positions they would have been had the multi titling and grading Savingram and Directive been applied in their favour in 2008 and are therefore liable to be paid the salary arrears in terms of the multi titling and grading directives with effect from 2008.

According to the facts of the case, the 176 applicants issued a writ of summons on April 24th 2017 against the employer for an order declaring that the plaintiffs are entitled to benefit from Directive No. 10 of 2001 and declaring unlawful the ministry’s failure to apply Directive No. 10 in favour of the employees and to extend the benefit derived from the application of the directive to them.

The applicant employees also wanted an order directing the employer implement the directive in their favour with retrospective effect within one month from the date of the court order and an order directing the employer to place them in the position they would have been had the directive been properly applied in their favour, and that they be paid the salary arrears from the wrongful implementation of the directive within one month from the date of the court order and finally costs of the suit.

The affected employees’ claim stem from a directive from the Directorate of Public Service Management (DPSM) No. 10 of 2001 through which DPSM reduced the period required for progression to a higher salary scale from three to two years. In 2008 DPSM issued a Savingram Ref. DPSM 1834/9/ XXI (42) for multiple grading and title and grading of vacancies at the C Band salary Scale.

Further, DPSM issued Directive No.6 of 2008 still on multiple grading and titling wherein it set out the objective of the multiple grading and multiple titles of the positions. The 2008 Directive expounded on the preceding 2007 Directive on the multi title and grading of vacancies at the C Band level.

The employer on the other hand opposed the application arguing that the directive and savingram on which the applicants based their claim on does not provide for automatic progression, adding that the objectives of the aforesaid directive was to allow for the direct appointment of graduates with the appropriate academic qualifications at entry level but without experience and to facilitate faster progression of serving officers who qualify for promotion without the need  for ministries to request for additional posts or resources which had proved to be an extremely cumbersome and tedious process, and the employer under the circumstances denied liability to the applicants in emoluments as claimed or any part thereof.

Judge Nthomiwa observed that the plaintiffs were absorbed into the agriculture ministry on different dates in the years preceding 2007 and others in the years following the introduction of the multiple grading and titling of C Band. The multiple titling savingram and directives are relevant for all officers of the C Band and the ministry had already extended the benefits of the multiple grading and titling directives to some of its officers occupying C Band positions through a consent order in case No. CVHGB-003325-15 and CVHGB-002611-16.

During proceedings, it was revealed that the Attorney General directed or instructed the agriculture ministry to suspend the payments of salary arrears to C band officers, including the affected 176 applicants herein on the strength of the Court of Appeal judgment in Moeti Temano vs the Attorney General case No.CACGB-035-15.

Both the 2007 savingram and the directive o 2008 on multiple grading And titling of C Band positions were addressed to all ministries, including the Ministry of Agriculture, meaning that both the savingram and directive on multiple grading and titling of C Band positions have therefore always been applicable to the ministry and the plaintiffs herein. It is clear that the benefits were never extended to the applicants.

When other employees in the same ministry instituted proceedings, the ministry conceded that the plaintiffs’ colleagues were entitled to benefit from the multiple grading and titling savingram and directive.

Pursuant to the abovementioned concessions, the ministry paid all the officers who were plaintiffs in the matters. The said officers were paid salary arrears created by the non-implementation of the multiple grading and titling savingram and directive from the effective date that placed them in the scales/notches they would have occupied had the ministry complied in 2008 at the implementation stage.

Following the concession, the ministry made an undertaking to implement the multiple grading directive and savingram in favour of the applicants. Subsequent to the undertaking, the ministry embarked upon a calculation exercise for purposes of determining the arrears due to each of the C Band officers. To add salt to the injury to the applicants, the exercise had been completed and the calculations had been filed in the personal files of each of the C Band officers, including the plaintiffs when the ministry decided abruptly to halt the payment exercise.

As at May 2017 when the applicants instituted the proceedings, the undertaking to pay them had not been honoured.

Testifying for the applicants, former DPSM director Molebeledi Oagile who was director in 2007 explained that the multiple grading and titling was done by DPSM as indicated by the 2007 savingram. The responsibility of the ministries was to provide annual budgets in terms of the multiple grading and titling dimensions. It is therefore not the defendants not the defendant’s case that the annual budgets reverberating with multiple grading and titling of C Band positions were submitted and rejected the by the finance ministry or any other entity.

Justice Nthomiwa held that in terms of the multiple grading and titling C Band positions, an officer could progress from one level to the other without the  ministry having to go through the procedure that end up in parliament. This is because the officer would have already been occupying the position that allows for his or her progression.

“Further at the time DPSM introduced and undertook multiple grading and titling of C Band positions, they operated within the framework of laws, rules and regulations obtainable within the public service. In fact it was never suggested during the trial that the operations of multiple grading and titling of C Band positions as explained by Oagile offends against any of the aforesaid rules and regulations”, pronounced Justice Nthomiwa addding that “it is not a requirement to have additional available posts is therefore a settled matter between the parties”.

the presiding judge further held it is improbable that the 2007 savingram only introduced multiple grading and titling targeting graduates only. “I am therefore fortified in this conclusion by the use of the phrase “serving officers” in the 2008 Directive. In view of the above the 2007 savingram is applicable to plaintiffs by virtue of their occupation of C Band positions as referred to in the savingram and on account of the fact that they were and still are serving officers an contemplated in the 2008 directive. The 2007 savingram in my view therefore conferred a right on the plaintiffs who are C Band occupants to benefit in terms of Directive No. 6 of 2008 as read with the 2007 savingram”, concluded Justiwa Nthomiwa.

Justiwa Nthomiwa also held it is a reasonable conclusion too that reading of the 2007 savingram in conjunction with the 2008 directive fortifies the reasonableness and legitimacy of the expectation that the directive and savingram were applicable in their favour and they were entitled to benefit in terms thereof.

“The 2008 directive specifically speaks to “the progression of serving officers at C band level. The Plaintiffs are serving officers who also occupied C Ban d positions”, said Justice Nthomiwa in concluding his judgment.

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