The five employees who recently won against Public Enterprises Evaluation and Privatization Agency (PEEPA) have taken their employer to Court over the latter’s refusal to honour a court order instructing them not to effect deductions from their salaries.
The Francistown Industrial Court had earlier in on December 9, 2019 interdicted PEEPA from deducting from salaries of employees who had filed an urgent application challenging the Board’s decision to overturn an earlier decision by then Chief Executive Officer, Obakeng Moumakwa, to increase their salaries.
PEEPA had challenged the application. However, on December 20, 2019 Judge Galesite Baruti of the Francistown Industrial Court ruled in favor of the five employees, represented by Shathani Somolekae of Collins and Chilisa Consultants.
“Respondent is hereby and with immediate effect interdicted from: Deducting salary increments extended to all the five applicants from March/April 2019 by its former CEO, or making any adverse changes to those increments; and revoking the redeployment of 4th Applicant or the elevation of 3rd applicant to the higher band of Band 4A or making any adverse change to the redeployment or elevation.” PEEPA were ordered to pay, with immediate effect, the salary package difference that it deducted from the applicants’ salaries of November 2019.”
Judge Baruti said the order shall operate as an interim interdict and shall remain in operation for as long as there is no agreement between the parties resulting from a fair labour law process resolving the dispute arising from or a court order revoking or reviewing the decisions and acts of former CEO, Moumakwa. The employees have since filed an interlocutory application seeking PEEPA to execute the judgment delivered by the Court on 20 December 2019.
“The Application also seeks to call upon the Respondents’ Acting Chief Executive Officer and the Respondents’ Board of Directors to come show cause in person why they should not be held in contempt of the Courts’ Order of 11 December 2019 in terms whereof the Court issued the following orders … Respondent is interdicted from deducting from the salaries of the Applicants the increments that were extended to them in the months of March 2019 and April 2019.”
On 11 December 2019 the Court directed the Respondent to pay the Applicant’s December salary inclusive of the increment that was the subject matter of dispute between the parties in the main application.
According to particulars of the casePEEPA, by Memo addressed to all staff and authored by the Acting Chief Executive Officer, advised that as a result of the “pending ruling”, it had resolved to delay pay day pending the outcome of the December 20, 2019 Judgment and that salaries would be paid on December 23, 2019. The employees argue that such a memo was inconsistent with the order of December 11, 2019 which they say was issued in anticipation of the employees being paid on or around December 13, 2019.
“When one has regard to subsequent events, it is clear that the memo was intended to neutralize the order of 11 December 2019,” the employees argue.
On 20 December 2019, the Court delivered its order and granted the relief that the employees had sought.
Following the order, PEEPA immediately expressed their intention to appeal the ruling. “The Respondent (PEEPA) through its Attorney Mr. Ada Mgadla authored a letter to the Applicants advising that the appeal stayed the implementation of the Court’s decision of 20 December 2019…It is clear from the background I have set out above that neither the Respondent nor its legal representatives applied its mind as to the correctness of the Judgment of 20 December 2019. The primary concern is and was always to avoid paying the Applicants’ salary inclusive of the reversed increment.”
The employer, the employees argue, was prepared to do everything no matter how unethical or unlawful not to pay their salary inclusive of the increment,” the employees argue through their attorney Somolekae. “The conduct aforesaid is clearly contemptuous of the authority of the Court.”
PEEPA, the employees say, being a juristic entity acts through its Acting Chief Executive Officer who is responsible for the day to day running of its affairs as well as its Board of Directors.
“The Respondent Acting Chief Executive Officer and its Board of Directors are therefore prima facie in contempt of the Court’s order of 11 December 2019. As a result of the Respondents’ contention that implementation of the order of 20 December 2019 has been suspended through the act of noting an appeal, the Applicants are left with no option but to seek implementation of the order of 20 December 2019 pending the outcome of the Respondents’ appeal.”
The employees contend that in deciding whether or not to grant leave, the Court primarily has regard to prospects of success on appeal as well the balance of convenience. “We demonstrate that both prospects of success and balance of convenience heavily favors the Applicants.”