Grootfontein to auction tipper trucks to pay leave bonuses

The Grootfontein municipality is set to use the proceeds from the sale of three tipper trucks to pay the N$475 625.15 it owes to 23 employees, as per a Labour Court order that the ministry of urban and rural development unsuccessfully tried to stop.

Last week Judge Hosea Angula dismissed an application brought by minister Peya Mushelenga in April, in which he asked the court to stop the sale of the trucks and to declare the settlement agreement reached during an unfair labour dispute between the 23 employees and Grootfontein municipality null and void.

Mushelenga argued the agreement, which included payments due from contractual five-year bonus benefits, was unlawful and had not been approved by his ministry, as it had effectively been abolished by government in 2010 due to the high costs involved.

The employees, however, argued that the High Court does not have jurisdiction to overturn a Labour Court order, and that Mushelenga had no standing in the dispute between the council and the employees.

They also argued that the settlement agreement included monies owed for unpaid overtime.

Angula ruled last Tuesday that the High Court does not have the jurisdiction to set aside an order of the Labour Court and dismissed the matter with costs.

He also uplifted the suspension he put in place when the urgent application was first brought, making way for the writ of execution for the sale of immovable properties to proceed.

The judge noted that the matter could only be resolved through the Labour Court.

His judgment highlighted that the bonus benefit “ought to have been phased out over a period”.

“However, it turned out the council did not take steps to phase out the bonus benefit” until late 2017, which led to the unfair labour dispute.



Costly

Mushelenga's application highlighted that prior to 2010 local authorities frequently included costly five-year leave bonus benefits, which were effectively abolished in 2010 due to their heavy financial impact.

Nevertheless, the Grootfontein municipality did not phase out the bonuses until 2017, which the 23 employees used to approach the Labour Court and win.





The dispute resulted in a settlement and was made an order of the Labour Court in February, including the issuing of the writ of execution, after the municipality failed to comply with the terms of the agreement.

In papers filed by Mushelenga he argued that the agreement between the parties should be declared “unlawful, null and void”.

The minister explained that before the publication of a Government Gazette in June 2010, “there was a concern relating to the affordability of the remuneration packages offered by local authorities”.

Of primary concern was the costly five-year leave bonus benefits which government “wanted to do away with, as it was found to constitute a heavy burden on the finances of the respective local authorities”.

The minister said this issue was addressed in a 2010 government notice, and although the five-year bonus was not referenced to directly, “effective 24 June 2010, insofar as the municipality is concerned, such bonuses were not payable to its employees”.

In March, in a letter marked extremely urgent, the government attorney informed the ministry of the agreement and the upcoming sale of the immovable property, after being approached by the acting chief executive of the Grootfontein municipality in a bid for help.

The government attorney highlighted that the agreement was reached “despite several ministerial directives to discontinue the payment of the five-year bonuses”.

The government attorney's letter also noted that challenging the matter legally “will not be the best option or if an option at all”.



Loss

The sale in execution of two UD 80 and one UD 85 Truck Tippers was slated for 4 April.

The minister said “these are valuable assets of the local authority concerned and these assets now stand to be sold”, as part of the Labour Court order “which was improperly concluded between the municipality and the employees”.

Mushelenga argued that he was not notified of the sales and argued if the trucks were sold “the public at large of the Grootfontein municipality area will lose the use of the relevant assets”.

“This will be a loss to the public in general.”

During arguments, the legal team acting on behalf of the employees stressed that the labour dispute did not only revolve around the five-year bonuses, but also around unpaid overtime, which the final settlement agreement addressed.

They Grootfontein employees also argued that “before the abolishment of the five-year bonuses in February 2018 by council, nothing prohibited it from paying the bonuses as the personnel rules published in the gazette do not expressly prohibit council from paying such bonuses”.

Judgement was delivered on 18 June.

The ministry was represented by advocate Gerson Narib with assistance from government attorney Immanuel Dausab, while the respondents were represented by EE Coetzee, instructed by Tjitemisa & Associates.



JANA-MARI SMTIH