The Court of Appeal has dismissed a case in which scores of teachers challenged government decision to review their salaries after their employer argued that they were not eligible for assimilation to a higher salary scale.
Over 20 teachers employed by the Teaching Services Management (TSM) took government to court after the Permanent Secretary in the Ministry of Basic Education reviewed their salary from D4 scale from C1.
This comes after the former teachers were presented with two options for their consideration in 2010. The first was redeployment to the Department of Non-Formal Education (more accurately, the Department of Out of School Education and Training (DOSET), which is where they were seconded or remain under TSM.
In 2012, they progressed to C1 salary scale. In July 2013, the government introduced Levels of Operation (LOO) in the teaching cadre. At this time, court documents show that they were remunerated at C1 salary scale and, upon implementation of the LOO, assimilated to D4 scale, which is a higher pay.
The court ruled that progression in salary scale was irregular contrary to the Industrial Court ruling and found that the teachers were not entitled to a higher salary scale as Senior Teacher 1 under the category of Junior Secondary School.
The court found that even assuming that the teachers were under the Senior Secondary School, holding positions as Senior Teacher II and whose scale was C1, they received no salary increase.
“There was no change in terms of the LOO. In other words, they were not assimilated to the approved salary scale of D4 as was the case with Senior Teacher 1,” the judges noted, adding further that their position remained unchanged as with Senior Teacher I and II whose scales were at D3 and D4 respectively.
“This means there was neither a contract nor policy – not even LOO itself – that qualified them to the salary scale of D4,” the Judges said.
Government challenged the Industrial Court’s jurisdiction to entertain the case brought to it by the teachers. The jurisdictional point was not a ground for appeal but was rather raised for the court to determine first – particularly whether it is competent for the appellants (Government) to raise the issue on appeal. Depending on the answer to the above, it may not be necessary for the Court to even deal with the merits of the dispute outlined in the numerous grounds of appeal.
Attorney, Keatimilwe who represented the teachers did not address the specific issue of jurisdiction in the teachers’ Heads of Arguments even though she did not dispute that she was made aware of it in the Government’ Heads of Argument. She maintained that the Industrial Court had jurisdiction to entertain and determine the dispute before it, since it was a dispute of right and not one of interest. Attorney Keatimilwe said the teachers’ dispute arose from their individual employment contracts filed of record. Advocate Pilane, representing Government argued rather that the dispute was one of interest rather than one of right.
The Court of Appeal said the main question to be determined was whether the teachers were entitled to befit from the LOO and satisfied the preconditions for assimilation to D4. Justice Tebogo Maruping referred to Sections 2 and 20 of the Trade Disputed Act which defines the ‘dispute of interest’ as a ‘a dispute concerning the creation of new terms of conditions of employment or the variation of existing terms and conditions.’
Dispute of right means a dispute concerning an alleged infringement of a right flowing from any written law, collective agreements or individual employment contracts, or the conferment of a benefit to which the claimant is legally entitled. As an appellant, government argued further that the relief sought also buttresses the point that the real question for determination by the Industrial Court was whether the introduction of the Levels of Operations (LOO) in 2013 entitled the former teachers (respondents) to enhancement of their salary scale to D4.
