- Game sued for ‘unlawful’ deductions
- Employees complain against secretive commissions calculation unilaterally imposed on them
- Game management fail to explain the ‘unlawful’ deductions
- Management declines to disclose secretive commissions calculation methodology
The popular electronics and fast moving consumer goods retailer, Game, is embroiled in a bitter labour dispute over allegations of making unlawful deductions in employee salaries over several months without any explanation to 12 employees affected.
A labour dispute is pending before the Gaborone Industrial Court in which the 12 staffers state that Game Discount World Botswana Pty (Ltd) has not bothered to explain to them why such deductions were made in their salaries, despite several complaints to management. In the court documents stating particulars of the trade dispute, the 12 state that the refusal or failure by management to address their grievances has compelled them to drag their employer to court. They submit that such deductions are unauthorised and are in contravention of Botswana’s labour laws.
As a result, the staff members are demanding repayment of the deducted money, which amounted to around P200 000 at the time of writing this article this week. The 12 also state that their employer unilaterally imposed a new commission system which does not show their individual sales figures which used to calculate the commissions due to staff members. The employees are paid a basic salary and a commission calculated as a certain percentage of the value of the goods sold.
With regards to the new system which does not show sales figures or the formular used to calculate the commissions, the employees are complaining that the unfair labour practice has led to secretive commission calculations. The end result, they say, is an utter unilateral variation of the commission structure that is different from the previous system where they were give a printout of all calculations made to arrive at their monthly payments so they could collate and verify their commissions.
Further, the 12 aver that they have not been paid their Game Incentive Value (GIV) and Supplier Incentive Value (SPIV) from May 2020 to-date. They say they have lodged several complaints about this and all the other matters up the hierarchical ladder of the company without any resolution. In a telling development, these employees state that Game and its management never bothered to respond to their queries until the matter was lodged with the Gaborone District Labour Office for first mediation on the 17 March 2021.
They assert that the grounds for referring this matter to the Gaborone Industrial Court is that Game management erred in law by unilaterally imposing a new system which led to secretive commission calculations, rendering such a decision a unilateral variation of the whole commission structure. Further, they say the retailer erred in law by not paying all the 12 employees their GIV and SPIV commissions since May 2020. They assert that their employer also erred by not taking the necessary measures to resolve the complaints lodged by the employees.
They are therefore pleading with Justice T. Moleele of Gaborone Industrial Court to order Game to pay each of them the amounts of money deducted “unlawfully” from their salaries to-date. They also want the court to order their employer to avail all records relating to each of the 12 employees regarding payments of their GIV and SPIV commission payment method. In addition, they want the court to order Game to revert back to the previous payment system that provided each of the applicants a printout with specifics prior to monthly payments.
According to a supporting affidavit for Game filed by Prenella Naidoo, who is Employee Relations Senior Manager at Mass Discounters in South Africa, which trades as Game and Dion Wired, in December 2005, Game introduced a Human Resource Policy named the POM system that set out the commission structure applicable to the 12 and all Game staff members. The affidavit was in support of an application for late filing by the employer, a motion to defend an application brought by the 12 before the court.
In the affidavit Naidoo states that in early 2020, Game began a process of introducing a new commission structure named the SAP System in terms of which the 12 employees would qualify for commission whether goods they sold were sold at market price, par market price or below market price. According to Naidoo in the affidavit, the SAP system is based on the specific price of each good sold. However, he adds that sometime in 2021, the 12 lodged a dispute at the District Labour Office against Game the subject of which were issues incidental to the transition from the POM system to the SAP system.
Subsequently, says Naidoo, says a mediation process between the employees and their employer was convened on 17 March 2021 but the hearing was adjourned by the mediator to 26 March 2021 in order to enable Game to address each of the employees’ queries. Naidoo submits that upon failure to reach settlement before the District Labour Office, the employees instituted proceedings before the Gaborone Industrial Court against the employer. Game was allowed to file their statement of defence.
In the statement of defence, Game states that with a view of sensitising the employees on the introduction of the SAP Commission system, it had advised store managers to train staff on the system. Game submits that from April 2020 when government introduced a national lockdown, only essential goods like food and other groceries were sold; This resulted in a decline in sales of electronics, which are Game’s major products. According to Game, this affected not only its sales but the individuals’ sales performances as well.
Says Game in its statement of defence: “The restrictions on the sale of goods sold by the first respondent (Game) and in extension the applicants (the 12 employees) continued for an extended period. Thus, by the end of August 2020, the commissions earned by applicants and all employees amounted to P50 059.50 . The change of operating systems from POM to SAP took effect on or about 01 June 2020. However, due to technical challenges experienced by the 1st respondent (Game), the 1st respondent proceeded to pay the applicants (the 12 employees) and all staff members an average commission. This is despite some of the employees not qualifying for the commission at all.”
Game asserts that it paid the 12 employees and all other staff members the average commission and in particular a sum of P506 201.04 despite them only being entitled to P50 059.50. Regarding non-payment of the GIV and the SPIV, Game says it resolved to make such payments to employees who qualified for such incentives from June to November 2020. Payment was expected to reflect in their accounts in the December pay run. Further, the employer says payment was duly made. However, because of technical challenges of the new system, payment was made in South African Rands instead of Botswana Pula.
As a result, says Game, because of the strength of the Botswana Pula against the South Africa Rand, the employer discovered that it had actually overpaid the 12 employees. It therefore, Game says, devised a means to recover the funds, hence the deductions made in employees’ salaries. With regard to the case lodged before the Gaborone Industrial Court that the 12 employees sought resolution of the matter before from management to no avail, Game says the 12 have failed to utilise the grievance procedure as set out in the code of ethics by the Massmart Group in South Africa.
Trial was expected to resume this week but was delayed because the employer is allegedly reluctant to issue the requested particulars to the 12, namely the records of commission payments and the methodology used. Through their legal representative, Thatayaone Mogami Ketlogetswe, the employees have filed an application for further particulars. On Wednesday this week, Justice Moleele ordered the employer to file an answering affidavit to the application for further particulars by 24 August 2022. She also ordered that the 12 employees may file their answering affidavit seven days later. Heads of arguments will be filed on 19 September 2022 to allow for the case argument to occur on October 2022. Game is represented by Bookbinder Business Law.
