Sunday, September 24, 2023

PEEPA employees win first round against employer

The Francistown Industrial Court has ordered the Public Enterprises Evaluation and Privatization Agency (PEEPA) to halt deductions from employees’ salaries.

The employees are challenging the Board’s decision to overturn an earlier decision by then chief executive officer to increase their salaries.

The decision however is a temporary relief pending a final ruling to be made next Friday, December 20, 2019

The five employees, represented by Shathani Somolekae of Collins and Chilisa Consultants, approached the court following PEEPA Board of Directors’ decision to overturn their salary increment, and deduct from their salaries the difference following then CEO Obakeng Moumakwa’s decision to grant them performance based increments back in March, April 2019.

The parastatal argues that Moumakwa acted outside of his powers in granting the increment.  In his answering affidavit PEEPA’s Acting CEO Ishmael Joseph says the parastatal had engaged the services of a private forensic investigator to investigate Moumakwa’s conduct in relation to the salary increments and other matters. Based on the findings of the forensic investigations, Joseph says, Moumakwa was invited for a disciplinary hearing on October 22nd 2019 and subsequently dismissed on the same day by the Minister.

“On the 15th of November 2019, the Respondent (PEEPA) embarked on a consultation exercise with the Applicants (employees) individually to inform them of the results of the findings of the forensic investigations regarding the Former CEO’s conduct in giving increments and redeployments in relation to the Applicants,” the Acting CEO says in his affidavit. Following the consultations and having considered representations made by the employees, Joseph says, PEEPA proceeded to reverse Moumakwa’s decisions, issuing letters to the employees in that regard.

“The former CEO required the approval of the Board in order to bind PEEPA with salary increments. He had no powers to make increments without the approval of the Board nor was the power to make the increments delegated to him.”

PEEPA argues that the employees are aware of the breach by the Former CEO and/or ought to be aware of the breach and as such they cannot seek to enforce the increments against their employer, and rely on the ‘Tarquand Rule’ (Indoor management Rule).

The employees however argued that the decision taken by the Board and implemented by the Acting CEO to reverse the increments is erroneous.

“The increments in question were awarded by the former Chief Executive Officer who was the face of the Respondent and who in terms of the Respondent’s Constitution is responsible for its day to day affairs. The adjustments to and communication of such adjustments to employee remuneration falls in scope of his mandate.”

The employees argue that they reasonably concluded, in the circumstances, that Moumakwa had the requisite authority to award the increments.

“We had no reason to believe that given his position, the former Chief Executive Officer could not properly and lawfully extend the increment that was granted. We do not sit in Board meetings and are not privy to the discussions and resolutions made until they are communicated to us by the Chief Executive Officer.” As a result the employees posit that they cannot and should not be disadvantaged on the basis of the shortcomings by internal management of which they have no knowledge or control over. The employees also made reference to their recent inflationary salary adjustments for emphasis.

“…just as we have received communication through the current Acting Chief Executive Officer of an adjustment to our salaries by letters attached hereto is the exact same manner in which we received communication of the increments awarded to us earlier this year. The irony in the Respondents’ actions is the expectation that we regard the current Acting CEO’s actions as being clothed with authority and to simply disregard that of the former CEO yet the manner in which adjustments to remuneration is communicated is exactly the same.”

The former chief executive officer Moumakwa had also written a letter to the Board in which he sought to justify his actions in relation to the increments.

He said the “performance based” increments did not require approval from the Board. “…The Board is engaged only when there is a change in the salary structure. This refers to instances when a percentage increase is granted to certain categories of employees or across the board.”

The five employees are Mothusi Mokoto, Mooketsi Kgosibodiba, Letshego Moeng, Mpho Seretse, and Segomotso Matswiri. The ruling is set for Friday this week.


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