Friday, July 1, 2022

Bench clerks sue State over promotions

Bench Clerks stationed at various divisions of the High Court have sued the Department of Administration of Justice over what they believe is a deliberate ploy by not to grant them promotions.

This follows a decision by the department to subject all the pay scales of the Bench Clerk Cadre to a job profiling or evaluation exercise. Court records show that the consequence of this exercise was that Job Effectiveness Descriptions (JEDs) were developed.

The JEDs and the job profiling, court documents show, produced the following Organisational Structure for the Bench Clerks Cadre and scales: Clerk I – D1,  Senior Executive Bench Clerk II – D2, Executive Bench Clerk – D3, Chief Bench Clerk – D4, Principal Bench Clerk – C1, Senior Bench Clerk – C2; and  Bench Clerk – C3.

Court records also show that the JEDs of the first two scales, being super scales, were approved by an upper panel. Industrial Court, Judge Galesite found that although no evidence of their approval was placed before Court there is no doubt that the rest of the scales were signed by the parties in September 2018.  He said after the Organisational Structure became operational applicants were slotted into its various scales.

The order that the bench clerks sought from Court was that all those who are Principal Bench Clerks at C1 scale must be elevated to the posts of Executive Bench Clerks at the D3 scale because they perform duties at that high level. They also sought an order that all those that are presently Executive Bench Clerks at D3 scale be elevated to the posts of senior executive bench Clerks at D2 scale because they are performing duties at that high level.

 Those at D4 scale would also like to be moved up to the D3 scale. Their prayer was further that the Court should order that they be compensated for having performed these duties under the scales they seek from the time of approval of the JEDS.

But the Administration of Justice opposed the bench clerks’ claims as well as the orders that they had sought. The department’s defence is that the bench clerks do not qualify to be elevated to the scales that they are seeking.

The department also insisted that the bench clerks do not hold academic qualifications required by the JED’s for them to be elevated to their desired scales. At emerges from court records that at the hearing the bench clerks called two witnesses to prove their claims. At the closure of their case, the department applied for absolution from the instance.

This application is vehemently opposed by the bench clerks.  

Justice Baruti said it was the Court’s determination of the application for absolution from the instance that is squarely the subject of her ruling.

“Through this Ruling the Court must make determination as to whether or not the application for absolution from the instance is grantable. It is opportune at this stage to restate the law to be applied herein, which is the law on absolution from the instance,” he said.

“There is no doubt, as accepted by the parties, that the JEDs will be implemented only if they have been approved. It is common cause between the parties that the top two super scale positions of Applicants’ Organisational Structure were clearly approved by the upper panel hence they are legally binding on the partieas contractual terms,” said Baruti.

He found that those two super scale positions are implementable with respect to any Applicant who qualifies to ascend to them adding that, “What about the rest of the scales of the Organisational Structure?”

He said the posts or scales were signed by the parties, but those signatures cannot be taken to constitute approval. She found that just like the two super scales positions there must be some form of a body along the lines of the upper panel that must approve these lower positions.

“No prima facie evidence has been led to show that these lower scales were indeed approved. If they were not approved they cannot be implemented. Applicants must await their formal approval before they can demand implementation,” said Baruti. On this finding, he said, “Applicants’ case is hopeless in that they are seeking an incompetent relief of implementing that which does not yet form part of their employment contracts on account of non-approval of JEDs.”

On the Principal Bench Clerks’ prayer was that they be elevated to Executive Bench Clerk Scale D3 as their reasoning is that they perform the duties of an Executive Bench Clerk, Baruti asked rhetorically, “But do they qualify to be placed at that scale?”  

She said the JEDs clearly state that for any Bench Clerk, including most of the Applicants (who are Principal Bench Clerks at the various High Court Divisions) to be placed at the D3 scale (Executive Bench Clerk) he or she must hold a “Diploma/Degree in Translation and Court Interpreting.”

Such a Bench Clerk must also have at least “4 years relevant work experience or 2 years as Senior Bench Clerk.” Do the Principal Bench Clerks, before the Court, who are seeking to be placed at the D3 scale, have these qualifications stipulated in the JEDs? They don’t, said Baruti.

 He said the JEDS do not allow for any fence sitting. “Applicants have asserted that they do work at the D3 scale level. But the fact is that they do not possess that requisite academic qualification and no extent of doing the work can ever miraculously confer those academic qualifications on them,” said Baruti.

The judge further stated that, “Applicants are stuck in a quagmire of JEDs that require academic qualifications that they don’t possess” adding that, “Academically the posts and scales that they seek are clearly beyond their reach.”

Baruti said it would be unfair to department, and illegal for the Court, to order that Applicants be elevated to posts and salary scales for which they do not qualify.

“Granted, they could have been doing some of the duties at those high scales, but the undeniable fact is that they are academically disqualified from being placed on those posts,” he said.

He further stated that, “The remedy for having done work at those higher posts cannot be that they should be elevated to them. Such a remedy would be illegal and incompetent. The fact that some of their colleagues may have been elevated to those positions without the JED qualifications can never be a legally valid justification for elevating the unqualified.”

Ruling in favour of the department and dismissing the bench clerks’ case, Baruti said, “If the Applicants’ case is that they should be placed on or elevated to positions or scales for which they do not qualify academically then theirs is a hopeless case of attempting the impossible.”  

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