The Court of Appeal has upheld the decision of the High Court suggesting that Air Botswana illegally shaved off more than P20 million from its workers’ salary back pays.
Initially Sunday Standard had reported that the amount owed to the employees of the national airline as per court records was P20 million but after the Court of Appeal judgement, the union for the employees, lawyer Onalethata Kambai confirmed that the Court of Appeal has ruled in favour of his clients and revealed that the figure the struggling airline has to part ways with stands at P22 million.
In a landmark judgment that is likely to drain the coffers of the already cash strapped company, Acting Court of Appeal’s Justice Mercy Garekwe confirmed the decision of the High Court and she dismissed the Air Botswana appeal.
Justices of the Court of Appeal Ian Kirby, Isaac Lesetedi concurred with Justice Garekwe.
“The appeal is dismissed with costs in favour of the Respondent (Air Botswana Employees Union; the judgement of the Court a quo (High Court) is confirmed,” said Garekwe in her judgment.
Information that was placed before the High Court shows that a report by Moemo Mesotlo, managing partner of audit firm MSD & Associates which forms part of the records implicated the national airline in wage theft.
Wage theft is the illegal withholding of wages or denial of benefits that are rightfully owed to employees. The report revealed that the back-pays salary gap is in arrears by more than P20 million and that there was no evidence indicating the back pays due had actually been paid.
It further emerged in the court records that the struggling national airliner also had failed to comply with a court order issued a few years ago by Justice Michael Leburu of the High Court. The High Court order read in part: “The two parties are ordered to carry out an audit to determine whether indeed back-pays, in terms of the Agreement, have been effected to all concerned staff member.” Court records showed that Air Botswana had entered into an agreement with its employees to pay back-pays backdated October 2015.
Through their lawyers, Kambai Attorneys, the employees and former employees who are members of the Air Botswana Employees Union had revealed that notwithstanding the Air Botswana being duly availed the findings of the audit, it has failed and refused without lawful excuses to comply with the court order dated 19 October 2019 which ordered Air Botswana to pay the outstanding back pays within 30 days of the audit.
“It is submitted that pursuant to the above provision entailed in the order dated 19th October 2018, the applicant (Air Botswana Employees Union) did introduce the auditor Mr. Mesotlo to the Respondents (Air Botswana) who in turn requested his curriculum vitae and qualifications. The Respondent further vetted Mr. Mesetlo and caused him to sign a non-disclosure agreement and this is not denied by Respondents,” the employees argued.
In her judgement, Garekwe found that the auditor understood the basis of the 27% hence his reference to the median of the All Organisations Market and placing reliance on same his calculations. This is the same understanding that Air Botswana has stated by its Legal Services Officer in the answering affidavit to the main application,” said the Judge.
She added that for Air Botswana to now seek to change goal posts, contradicting itself in the process, can only point to lack of understanding. “They issue they are taking is no issue at all. The audit exercise therefore was not based on a wrong premise contrary to the Appellant’s assertions,” said Justice Garekwe.
She noted: “It would seem, in the judgement of this Court, that the Appellant’s main gripe is with the bottom line or the figurers that come out of the Mesetlo audit report. The only way to counter such figures would have been through another expert report which the Appellant has failed to avail.”
According to Garekwe, an audit exercise is a highly technical process which calls for a qualified professional to undertake. Judges, as a general rule, are not equipped to deal with such highly technical process unless they double as auditors in their own right.”
She said this was the very reason why the High Court in the first place made an order for an audit to be undertaken. “The Appellant was expected to participate in the audit exercise and did so, in my view, though it denies same. If appellant did not participate in the audit exercise when the Court had ordered the parties to undertake the audit exercise, it can only have itself to blame,” noted Garekwe. She said it would therefore, be fallacious to fault the High Court’s findings and its order endorsing the only audit report placed before it in compliance with its order of 19th October 2018 (directing that Air Botswana conducts its own audit).
Garekwe, found that, therefore, Air Botswana “has failed to justify its appeal and the appeal as such ought to fail.”
Garekwe also found that the Auditor, in his final report, makes reference to the conclusion arrivaed at by the Consultant engaged by Air Botswana for purposes of enquiring into the airline’s staff salavries reviews. “The reviews were informed the fact that the parties hereto had engaged on a number of occasions prior to the setting up of the consultancy on what the parties acknowledge to be lower salaries paid by the Appellant to its employees when compared with other parastatals,” she said.
The judge found that the Consultant concluded, and this is noted as one of the findings by the Auditor that “Air Botswana was paying at 27% below the Median of all Organisations’ Market.’ The audit report therefore records that the Union Management Agreement salary gap (which is referred as 27%) constitutes the shortfall between the actual salaries paid by the appellant (which are not necessarily at the AB midpoint of pay ranges) and the All Organisations’ Medium (As determined by Tsa Badiri Consultancy.)
The union employees had argued that Air Botswana had never taken issue to Mr. Mesetlo’s appointment or credentials and it had even cooperated with Mr. Mesotlo in assisting him in fulfilling his mandate pursuant to the order of the Court,” the employees said.
The High Court Order had also stated: “If there is any non-compliance/non-payment, the Respondent is ordered to effect payment in terms of Agreement within 30 days from the date of this order.”
The audit report by Mesotlo who was jointly appointed to conduct the audit revealed that there had in fact been outstanding back-pays. The employees said the issue of back-pays was brought to the attention of Air Botswana when they were submitted to them on the 11th February 2019. “Numerous demands were made to Air Botswana to pay the outstanding back pays. Notwithstanding this demand the Respondent had still not complied with the court order,” employees had stated.
“It is therefore submitted to this Honourable Court that the Respondent has disobeyed the Court Order dated 19th October 2018 because they had refused to pay the outstanding back-pays indicated in the report done pursuant to the order within 30 days even though the findings of the Report was brought to their attention,” the employees had said. “The Respondents (Air Botswana) have purported to submit the terms of the Order by seeking to rely on an external audit as per their letter dated 16th January 2019. The respondents were not entitled to engage an external auditor because the provisions of the order are very clear that once the back pays had been established they had to be paid,” the employees said.
They said Air Botswana has, since the granting of the said Court Order, sought to defeat any relief or address that the Applicant can be given by the Court. But Air Botswana had argued that Mesotlo was not duly jointly appointed and secondly that his findings were premised on the departure points in relation to the calculation and computation of the back pay arrears. Air Botswana also distanced itself from the findings of Mesotlo by referring to him as the employees’ auditor. But the employees had insisted that evidence before court revealed that they at all times Air Botswana treated and accepted Mesotlo to be the rightly appointed auditor pursuant to the Order of the Court.
“We hasten to submit that the Respondent was not entitled to conduct their own audit. The Respondent does not have the luxury of substituting the findings of a duly conducted audit report with their own understanding of how the back pays ought to have been established,” the employees had said. They had further stressed that Air Botswana is not an audit firm and is not competent to conduct an audit pursuant to the Court Order.