Cash strapped Air Botswana illegally shaved off more than P20 million from its workers’ salary back pays – court records suggest.
A report by Moemo Mesotlo, managing partner of audit firm MSD & Associates which forms part of the records implicates 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 emerges in the court records that the struggling national airliner also failed to comply with a court order issued last year by Justice Michael Leburu.
The Court order reads 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 show 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 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.
Air Botswana reportedly provided Mesotlo with the necessary documents and access required to conduct the audit and commented on his findings.
“This is also not denied by the Respondent. The Respondent have never taken issue to Mr. Mesetlo’s appointment or credentials, 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 Court Order 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 state.
“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 said.
“The Respondents 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 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 insist that evidence before court reveals 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 said. They further stressed that Air Botswana is not an audit firm and is not competent to conduct an audit pursuant to the Court Order.