FRANCISTOWN: A Ministry of Basic Education (MoBE) teacher whose promotion in 2012 was cancelled as a result of an error in the job advertisement will now get her back pay, a court has ruled.

The applicant, Ruth Matekenya, was promoted to the post of head of department (HOD) - Learning Difficulties - only for her employer MoBE to later make a U-turn. After enquiring about her reinstatement for years, she was eventually promoted on April 30, 2020 but the ministry only offered the post but not unpaid financial compensation, a matter which led to court.

When passing judgment recently, Justice Lot Moroka of the Francistown High Court said the natural consequence of the reinstatement of Matekenya’s promotion is that it ought to be from the date it was withdrawn. Moroka added Matekenya ought to be promoted to HOD (Learning Difficulties with effect from August 24, 2012) and her employer to pay her salary difference occasioned by the late promotion as well as ancillary benefits that she would have otherwise been entitled to.

“The withdrawal of the promotion visited her amongst other pecuniary loss. The promotion placed her on C1 and the withdrawal dropped her to C2. She wallowed on this scale for many years despite having been adjudged good enough to serve as HOD. Justice demands that this prejudice be corrected,” Moroka highlighted. MoBE will also pay the costs of the suit at an ordinary scale and interest on the outstanding arrears at 10% per annum.

2012 job advertisement and withdrawal

Matekenya holds a Bachelor’s Degree (Primary Education) and is qualified in Arts and Crafts as her area of specialisation and Special Education as her core subject.

“The plaintiff duly applied for the post and was invited for an interview. She was adjudged by the interviewing panel to have passed the interview. By the letter dated August 24, 2012, she was awarded the post. Following promotion to the post of HOD

(Learning Difficulties), she was deployed to Tagala Primary School in Francistown with effect from September

1, 2012. She packed her bags and travelled to Tagala to assume her responsibilities under the new post. Before she could arrive, she received a telephone call from the Francistown Regional Education office notifying her that her promotion had been cancelled. There was no prior engagement between the plaintiff and employer as represented by the Francistown Regional Education office before the cancellation of her promotion,” said Moroka.

The verbal cancellation, Moroka continued, of her promotion was followed by a letter dated August 31, 2012 written by O. J Moyambo for the Director a day before the plaintiff resumed duty at her new school.

“Following the reversal of her promotion, the plaintiff attended a meeting with the management at the regional office on September 3, 2012 to discuss the way forward. At this meeting, she was informed that her promotion was in error as the advert required the applicants to have spent two years as Senior Teacher Grade 1 and that she had not reached the two years threshold to be able to qualify. Faced with a fait accompli, she agreed to be redeployed to Satellite Primary School hopeful that she would eventually be elevated to the stripped post of HOD.”

Decade-long enquiry, 2020 reinstatement

According to Moroka, in the succeeding years, Matekenya frequented the regional office to enquire about her promised way forward. She also wrote a letter dated February 27, 2020 enquiring about when the reinstatement to the position of HOD would be done. With the passage of time, her eternal hope of reinstatement of her promotion gave way to despair. This led her to file an appeal against the reversal of her promotion with the Public Service Commission (PSC).

The PSC heard her appeal on February 18, 2020 and amongst other reasons, it came to the conclusion she had a legitimate expectation to be at C1 salary grade and could have been at a D4 salary grade by then. The PSC recommended that Matekenya be promoted to the HOD (Learning Difficulties) post with immediate effect. Following the decision of the PSC, the respondent promoted the plaintiff to the position of HOD and deployed her to Matsiloje Primary School. “This promotion was communicated to her by a letter dated April 30, 2020 and the promotion was with immediate effect. The case of the plaintiff is that her promotion ought to be backdated to August 25, 2012 when she was unlawfully stripped of the promotion to the same post.”

MoBE’s defence

According to Moroka, MoBE had laid down a three-layered defence against the plaintiff’s action. Their argument was that Matekenya did not qualify for the post of HOD and that she accepted the decision to strip her of the post. Matekenya’s employer’s defence is that the decision of the PSC did not say that the promotion of the applicant to the post of HOD should be backdated to the date on which she was previously promoted.

Moroka’s judgment

When passing the judgment Moroka said two issues stood to be determined which are whether the cancellation of the plaintiff’s promotion was lawful and whether the promotion of the plaintiff ought to be reckoned from the date of cancellation. Moroka emphasised that the rest of the matters raised by the defendant such as whether the plaintiff acceded to the withdrawal and whether she used the old nomenclature in applying for the post are inconsequential red herrings. Moroka added: “Counsel for the defendant repeatedly put it to the plaintiff in cross-examination that she used an old nomenclature in submitting her application hence the defendant’s confusion resulting in her promotion. This argument is a non-starter. Firstly, this was an internal advertisement. The plaintiff is an employee of MoBE. The employer is the custodian of her employment file and knows her designation in whatever nomenclature. The employer knew or ought to have known her academic qualification, her progression record particularly how long she has served as Senior Teacher and whether she was eligible for promotion to the next level. The defendant does not say that in submitting her application, the plaintiff falsified anything.”

Moroka further pointed out that Matekenya’s application was processed by the relevant authorities and she was adjudged to have passed the interview by the panel and recommended for promotion. He also said Matekenya was offered the position and she accepted it.

“If there was any mistake in the processing of her promotion, it cannot be attributed to the plaintiff. Therefore, the nomenclature issue is just a red herring and I reject it as such. The second red herring that I need to take out of the way is the purported acceptance of the cancellation of the promotion by the plaintiff at the meeting of September 3, 2012. The meeting came after the horse of the illegality of the withdrawal had already bolted. The plaintiff was informed of the cancellation verbally when she was travelling to take up the promotion. This was followed by the letter dated August 31, 2012. Therefore, when the plaintiff attended a meeting at the regional office presided over by the director she was presentNothing ed with a fait accompli. she could say or do could reverse the cancellation of the promotion. She took what was offered and went to Satellite Primary School as a senior teacher. This expost factor cannot by any stretch of the imagination cure the illegality around the withdrawal of her promotion,” said Moroka. When dealing with the lawfulness of the withdrawal of the promotion, Moroka explained that “an ounce of good governance is worth more than a pound of judicial review. On the issue of prejudice, Moroka noted that the promotion of the plaintiff to the post of HOD at salary scale C1 conferred certain benefits to the plaintiff, chief of which were pecuniary.