Ex-NYC director, council at loggerheads over pay

A legal battle is unfolding in the High Court between former National Youth Council (NYC) director Calista Schwartz-Gowases and the NYC council over a disputed nine-month salary claim.

Court papers show the council argues there was no employment relationship after Schwartz-Gowases’ fixed-term contract expired in March 2020 and that her reappointment in December 2020 was a fresh contract with no provision for retrospective pay.

It says no employer-employee relationship existed during the gap period, as Schwartz-Gowases’ fixed-term contract had expired and she did not render services during that time.

Schwartz-Gowases, however, insists the council's own processes recognised flaws in how her contract was handled and says she is entitled to compensation for the period she remained unemployed.

She has since challenged the matter in court, where arguments by the first respondent, NYC, were heard last week before Judge Nate Ndauendapo.

Also cited as respondents in the matter are the education ministry as the second respondent, labour arbitrator Immanuel Helao Heita as the third respondent, and the Labour Commissioner as the fourth respondent.

Fresh start

According to the council, the interim board's findings were merely recommendations and did not create any enforceable right to retrospective payment for the period between the expiry of Schwartz-Gowases' first contract and her eventual reappointment.

The council maintains that the board resolution, ministerial approval and the appointment letter of December 2020 all provided for a new appointment effective from 14 December 2020, with remuneration calculated from that date and no provision for payment during the intervening period.

“The minister's letter of 8 December 2020 must be read as a constitutive instrument... The letter states, in clear terms, that the salary of December 2020 shall be on a pro rata basis from the date the appellant commenced duties and contains no recommendation or indication whatsoever that the appellant is entitled to remuneration for any period before 14 December 2020," court documents read.

In the alternative, the council contends that if the matter is characterised as an unfair dismissal dispute, any such claim would in any event be prescribed.

“There is, accordingly, no retrospective effect to be derived from the recommendation. The distinction between reappointment and retrospective remuneration is, once again, determinative: the appellant was reappointed; she was not awarded retrospective remuneration, and no document on the record purports to grant the appellant such an award.”

Schwartz-Gowases, on the other hand, maintains that the arbitrator failed to appreciate the legal consequences of the interim board's findings and statutory governance obligations and argues that these errors amounted to misdirection in law warranting the Labour Court's intervention.

Her court documents further indicate that the failures to conduct a mandatory performance assessment and to comply with statutory requirements under the State-Owned Enterprises Governance Act and the National Youth Council Act undermined the lawfulness of the decision not to renew her contract.

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