Tuesday, October 20, 2020

UB to pay hefty compensation to former deputy director

A three-judge panel of the Court of Appeal has ordered the University of Botswana to pay a former employee compensatory damages for the five-year period that it put him out of work. Additionally, UB will pay the man his terminal benefits as well as his legal costs.

The judgment by Justices Gaongalelwe, Ian Kirby and Leatile Dambe brings to a close a long-running legal dispute between UB and Dr. Gbolagade Adekanmbi.  Until July 2011, Adekanmbi worked at UB as the Deputy Director of Academic Programming. Prior to the expiration of his contract, he had expressed intention to renew his contract. Such intention was communicated to the Staff Appointments and Promotions Committee which gave its blessings and extended Adekanmbi’s contract by another five years. The second contract was to end in August 2016. However, four months after receiving his contract letter, Adekanmbi received another letter withdrawing the offer of renewal of contract. The letter said that this about-face was due to the fact that the position was redundant and that the job offer was improper as the post had not been advertised. On the basis of the foregoing, the university asked him to give reasons why the job offer should not be withdrawn.

Addressing these issues in his court papers, the Nigerian national reiterated the argument that he made to UB management. He had stated that in law, UB couldn’t withdraw the job offer and that the supposedly redundant post had in fact been budgeted for. In addition to the latter, he asserted that rendering a post redundant had to comply with steps outlined in the Employment Act which UB had not followed. In terms of this Act, an employer is required to make written notice to both the District Commissioner of the area as well as the affected employee before terminating a contract. To the point about the post not having been advertised, Adekanmbi countered by stating that he should not have to suffer the consequences of mistakes made by UB staff. He also pointed to precedence where contracts of some expatriates had been renewed without the posts they held having been advertised. However, UB remained steadfast that the job offer had been rescinded. Adekanmbi’s appeal was referred to the Staff Appeals Committee which, after its investigations, forwarded its findings to the University Council, the highest body in the varsity’s administration structure.

In a letter to Adekanmbi, the Council decided to “uphold your appeal” and directed him to negotiate a settlement with the university management. A letter from the then Secretary to the UB Council, David Fani, advised Adekanmbi to contact the Deputy Vice Chancellor (Finance and Administration) to “map the way forward regarding your employment status with the University.” Thereafter, the Council would direct UB to negotiate a compensation settlement of between six and 12 months with Adekanmbi. However, the parties stalemated as UB offered monetary compensation for 12 months while Adekanmbi insisted on getting his job back.

Ultimately, Adekanmbi took UB to the High Court where he lost the case, with the judge refusing to order reinstatement because the post had been declared redundant. Gaongalelwe, who wrote the judgement to which the other two judges agreed to, found that assertion to be factually incorrect as the Council had not made such declaration, only recommending that steps be taken in such direction. The court rejected an argument by UB’s legal representative, Advocate Timothy Bruinders, that Adekanmbi’s position was “factually redundant”. Gaongalelwe rejected this reasoning, saying that the law doesn’t recognize any such principle.

Ruling in favour of Adekanmbi, the CoA said that the Council, the highest decision-making body in the university, had “upheld” his appeal and that such words were to be given the practical effect of their clear and unambiguous meaning.

“Upholding the appeal in the context of this matter connotes reinstatement. It is a well-known canon of interpretation that where words in a document are clear and unambiguous in a particular context and the surrounding circumstances, their grammatical meaning is to be adopted. The courts are to guard against the temptation to substitute what they regard as reasonable for words actually used,” the judgement reads a few sentences before finding that Adekanmbi’s termination had been “wrongful and unlawful”.

Ordinarily, where termination of employment has been found to be wrong and unlawful, the High Court has ordered payment of wages for the unexpired period less any sums that accrued to the employee out of another employment contract. In this particular case, Gaongalelwe found that the question of mitigation of damages did not arise as Adekanmbi had been fighting his case all along, had been “ready and willing” to assume work at any time and never took up any other employment.

“In the circumstances the unexpired period of the contract is five years,” the judge said.

From what Sunday Standard learns, Adekanmbi’s package will be quite substantial. As a Deputy Director, he would have been drawing a basic salary of around P400 000 a year. A five-year contract would give him a total of P2 million which goes up by P600 000 when a 30 percent gratuity is added. Additionally, Adekanmbi will get 20 percent of his monthly salary as housing allowance, 15 percent as car allowance as well as payment for an annual leave entitlement of 30 days. A source put the total package at around P3 million before tax.

In addition to losing the case, UB suffered even more serious reputational damage resulting from criminal conduct that Gaongalelwe mentions in the judgement. Following the Council’s meeting, an unnamed Council member falsified minutes of a Council meeting that discussed Adekanmbi’s matter.

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