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JUDGMENT
DELIVERED BY THE PRESIDENT OF THE TRIBUNAL H.E. JUSTICE A.G. PILLAY.
[1] The important issue to be decided by us in this application is whether
the Applicant was entitled to a renewal of his contract of employment as
Principal Finance Officer which was entered into by him with the Respondent
in November 2004 (Doc.CK1). The Applicant assumed office in January 2005 and
the period of employment was initially for four years. The contract of
employment referred to the SADC Administration Rules and Procedures Handbook
(the Handbook) issued by the Respondent.
[2] In accordance with clause 15.3.5 of the Handbook:
“An employee in a Regional Post shall inform the Head of the Institution, in
writing, whether he/she wishes to be considered for a further term of office,
not less than six months before the expiration of his/her contract of
secondment. In the event that he/she wishes to be considered for a further
term, the Head of Institution shall inform the officer, in writing not less
than four months before the expiration of his/her contract, whether it is
the intention of the Institution to renew his/her contract.”
[3] In July 2008, the Applicant applied for a renewal of his contract. It
was sent six months before 4 January 2009 which was the date of expiry of
his contract. The reply of the Executive Secretary of the Respondent (the
Executive Secretary) was just over 2 months before the date of expiry of the
contract and was to the effect that the Applicant’s request for an extension
of his contract will depend on the outcome of the skills audit being
undertaken on all existing staff of the Respondent (CK6).
[4] On 13 December 2008, the Applicant was granted an extension of his
contract as Principal Finance Officer (Director of Budget and Finance) for
one year effective 5 January 2009 to 4 January 2010 (CK7), without any
reason being given. The Applicant accepted the term of twelve months under
protest (CK8) and explained during his testimony before us that he accepted
the offer since he did not have an alternative employment in Malawi, his
home country, and he had school-going children to provide for.
[5] It is noteworthy that the Applicant is still occupying his present
position of Director of Budget and Finance, having succeeded in August, 2009
in persuading this Tribunal to maintain the status quo and grant an order
restraining and prohibiting the Respondent from advertising, recruiting for,
and filling, the position of Director of Budget and Finance, pending the
determination of his present application on the merits-vide Clement Kanyama
vs SADC Secretariat Case No SADC (T) 05/2009.
[6] It is significant that during the course of 2006-2008 a Job Evaluation
exercise was carried out within the Respondent, the purpose of which
included, among other matters, the determination of a new organizational
structure for the Respondent, job specifications, descriptions and grading.
In the course of this exercise, a skills audit of the Respondent’s existing
staff was also undertaken, the purpose of which was to facilitate the
migration of the existing staff members into the new organizational
structure. New posts were created and there was also a change in the
nomenclature of some of the existing posts within the Respondent.
[7] Whereas in the old structure the Applicant held the post of Principal
Finance Officer, in the new one he occupied that of Director of Budget and
Finance. Doc. CK 7 confirms this as well as Doc. CK 10 of January 14, 2009
which in its heading specifies that the Applicant’s post was just a
migration into the New SADC Secretariat Structure and that, following the
outcome of the skills audit undertaken by the Applicant who had obtained a
100% proficiency evaluation score, the Applicant was then re-appointed
Director (Budget and Finance) – Personal to Holder, with all other benefits
and conditions of his original contract of November 2004 remaining unchanged.
[8] The Applicant in essence claims that, by not renewing his contract, the
Respondent, through its Executive Secretary, has acted in breach of its
contractual obligations towards him and that his reasonable and legitimate
expectation of having his contract renewed for a second and final four-year
period has been dashed, the more so as he had been expressly told in
December 2008, (Doc. CK 7) that, if his performance in the skills audit were
satisfactory and that he were to perform his duties diligently pending the
review, he would obtain a renewal of his contract.
[9] The essential arguments on which the Respondent’s case was based, as we
understood them from the evidence of the sole witness of the Respondent and
indeed from the statement of defence as pleaded, were mainly the following:
1. The Applicant did not apply for a renewal of contract per se, but he also
wanted to be appointed to the newly created post of Director (Budget and
Finance).
2. The posts of Director (Budget and Finance) and Principal Finance Officer
were not at par. The functions of the former had more in content than those
of the latter. Secondly, the qualifications for the post of Director (Budget
and Finance) were higher than those for Principal Finance Officer as, for
example, the pre-appointment professional experience was 10 years, including
8 years in a similar position for the post of Director (Budget and Finance)
whereas for the post of Principal Finance Officer, it was 10 years with
three years in a similar position.
3. It was argued that, by a policy decision made at Grand Baie in the
Republic of Mauritius by the Council of SADC Ministers (Council) on 24-25
February 2005 (Doc. LAU 2), there was to be a “Fair and Equitable Member
States Representation at the SADC Secretariat” i.e. the quota system would
apply to new appointments made.
That meant that no one State was allowed to have more than one officer
holding senior positions at the Respondent between the ranks of Director and
Executive Secretary at the expense of other member states. In the case of
the Applicant, a Malawian national, if he acceded to the position of
Director (Budget and Finance), he would be the second Malawian to fall in
those ranks, the other being a Mrs. Margaret Nyirenda who was Director of
Food, Agriculture and Natural Resources.
4. The Tribunal should declare that the decision made by Council on 26
February 2009 in Cape Town, South Africa (Doc. LAU 4), whereby the Applicant
was appointed as Acting Director (Budget and Finance) and to hold such post
until 31 December 2009, was fair and just. Moreover, there could not be any
breach of the Respondent’s contractual obligations towards the Applicant,
given that, in any event, the Respondent, through its Executive Secretary,
was bound not to renew the Applicant’s contract, in the light of Council’s
decision above.
[10] At this stage it is significant to note the following points:
1. At the meeting of Council in Lusaka, Zambia in November 2007, Council, in
reviewing the Job Evaluation exercise, decided that the functions of the
Strategic Advisor should be fused in a Unit under one of the Deputy
Executive Secretaries and that two new additional posts were to be created,
a second position of Deputy Executive Secretary and the creation of a
position of Director Human Resources (Doc. LAU 6).
2. The Report of the Executive Secretary on the Implementation of the Job
Evaluation (the Report) subsequently sets out the three new posts, with
their functions, skills and experience profile, namely Deputy Executive
Secretary (Regional Integration), Deputy Executive Secretary (Finance and
Administration) and Director (Human Resources and Administration).The Report
also highlights the fact that the respondent will adhere to the quota system
and gender representation “before any recruitment of personnel in the new
structure” is made (paragraph 2.1.20 (a) and the emphasis is ours).
As for “the skills audit of the existing staff members to determine the
suitability of translating to new ranks and positions in the proposed
structure”, the Report in paragraph 2.1.25 states as follows:
“In the event that some positions within the organization are no longer
required, rendering current incumbents redundant, or the individual does not
have the requisite skills needed for the job the following alternatives are
proposed:
…
...
...
Apply the Personal to Holder principle in the event that the staff member
occupies a position whose grade is lower than the grade the staff member
currently occupies” (the underlining is ours).
We have deliberately mentioned this paragraph of the Report just to show
that it is not in any respect applicable to the Applicant, least of all the
Personal to Holder principle, so that we are at a loss to understand why it
was mentioned in Doc. CK10.
3. The SADC Troika considered the Report at its meeting of February 2008 in
Pretoria, South Africa and approved, inter alia, the three new posts and the
skills audit of the existing staff members.
4. Council, at its meeting, in February 2008 in Lusaka, Zambia approved the
decisions of the Troika (Doc. LAU 6). In the Management Structure, there
were only three new posts, namely, Deputy Executive Secretary (Regional
Integration), Deputy Executive Secretary (Finance and Administration) and
Director (Human Resources and Administration).
5. Council, at its meeting, in August 2008 in Sandton, South Africa noted
that the SADC Treaty must be amended to accommodate the recruitment of a
second Deputy Executive Secretary and that, if that position were approved
by Summit, “this post would be advertised immediately, in line with the
quota system and ensuring gender balance”. Council also mentioned that the
Job Evaluation exercise had resulted in the creation of new positions as
well as the downgrading, upgrading and standardization of nomenclature of
other positions. All staff should be assessed through the skills audit to
determine their suitability or non-suitability vis-à-vis those positions on
the new structure.
6. Council at its meeting, in closed session, in February 2009 in Cape Town,
South Africa, in the presence of the Executive Secretary but not that of the
Applicant, noted that the Director of Human Resources and Administration was
appointed and assumed duty in December 2008 and took the following decisions:
(Doc. LAU 4) –
(a) it approved the Report and the outcome of the skills audit;
(b) the two acting Directors for “the newly created positions of Directors”,
among them the applicant in respect of the position of Director (Budget and
Finance), were appointed until 31 December 2009. After that date, those new
posts would be advertised and filled, in line with the recruitment
procedures, the quota system and gender representation, just as in the case
of the two new positions of Deputy Executive Secretary;
(c) the current Deputy Executive Secretary will be able, however, to apply
for one of the new positions of Deputy Executive Secretary.
[11] It is quite clear, therefore, that it is only in February 2009 that,
for the first time, the position of Director (Budget and Finance) is
referred to as a “newly created position of Director” by Council. No reason
has been advanced by Council for its decision so that it is not possible for
us to gauge the reasoning behind such a decision.
[12] We consider, however, that the position of Director (Budget and Finance)
is not a new post, but is a new rank or position in the new organizational
structure of the respondent, as is made clear by the documents mentioned
above. Indeed, the Executive Secretary, himself, made it clear in Doc. CK10
that the applicant only migrated from the old structure into the new one and
that his job content, profile and responsibilities as former Principal
Finance Officer remain the same as Director (Budget and Finance), following
the skills audit conducted to determine his suitability for the new rank or
position in the new organizational structure. That is why the post was
filled by the Applicant and not advertised, as in the case of the two new
posts of Deputy Executive Secretary and the new post of Director of Human
Resources and Administration.
[13] The clinching argument which demonstrates beyond doubt that there has
only been at most only a change of nomenclature is that the applicant was
offered by the Executive Secretary the post of Director (Budget and Finance),
following the results of the skills audit. If the Executive Secretary had
some qualms about the job content and responsibilities of the new rank or
position of Director (Budget and Finance) not being similar to those of
Principal Finance Officer, he would surely not have appointed the applicant.
After all, the Executive Secretary was in a better position than us, with
his array of consultants, to come to the conclusion that there were no
marked differences in the functions, responsibilities and job profiles of
the two positions.
[14] It is common ground between the parties that the quota system only
applies to the creation of new jobs (Doc. LAU 2, paragraphs 6.12.14 and
6.12.15), since it would be unlawful to apply the quota system
retrospectively to existing staff, as rightly pointed out by Counsel on both
sides. Since we consider that the post of Director (Budget and Finance) is
not a newly-created position, the quota system, as indicated already, is not
applicable to the present case.
[15] We consequently hold that the appointment of the Applicant by the
Executive Secretary was legally in order (Doc. CK 10), the more so as the
Report had been approved by Council, as mentioned already. No doubt the
Executive Secretary can only appoint the Applicant under terms and
conditions of service determined by Council under Article 15(1)(f)) of the
SADC Treaty, but that is precisely what he did, as demonstrated by the facts
highlighted above.
[16] Since the Applicant has been appointed on the same terms and conditions
of his original contract, we consider that he is not only entitled to a
renewal of his contract of employment but also has a reasonable and
legitimate expectation that his contract would be renewed, for a second and
final four-year period, in the light of his track record and outstanding
performance.
[17] We accordingly declare that –
(a) there has been a breach of the contract of employment of the Applicant
by the Respondent;
(b) in terms of the contract of employment of the Applicant, as well as the
Respondent’s policies and practices, the Applicant is not only entitled to a
renewal of his contract of employment but also has a reasonable and
legitimate expectation that his contract would be renewed, for a second and
final four-year period, in the light of this track record and outstanding
performance.
[18] With regard to the issue of costs, we shall first refer to Rule 78 of
the Rules of Procedures of SADC Tribunal (The Rules).
Rule 78 provides as follows:
“1. Each party to the proceedings shall pay its own legal costs.
2. The Tribunal may, in exceptional circumstances, order a party to the
proceedings to pay costs incurred by the other party.”
In terms of Rule 78, each party bears its own costs except where there are
exceptional circumstances warranting the grant of costs, in the interests of
justice, against a party.
[19] We take the view that there are exceptional circumstances, on the
particular facts of the present case, justifying the award of costs in
favour of the applicant in the interests of justice. In this regard, we have
taken into account the fact that the applicant who is a high-ranking
official of the Respondent has had to suffer intolerable prejudice, trouble
and annoyance when he was first offered employment as Director (Budget and
Finance) for only one year and then subsequently told, for no valid reason
whatsoever, that he was in fact appointed as acting Director and that his
actingship would lapse on 31 December 2009, without a hearing and without
being able to make any representations, so that in effect he was demoted and
he would not be eligible, as he is entitled, to obtain a second and final
four-year contract of employment with the Respondent, in spite of having a
reasonable and legitimate expectation for such a renewal of his contract, in
the light of his track record and outstanding performance.
[20] For the reasons given, we consequently make a costs order against the
Respondent under Rule 78 (2) of the Rules. The costs are to be determined by
the Registrar in the case of disagreement between the parties.
Delivered in open court this 29th day of January 2010, at Windhoek in the
Republic of Namibia.
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