Teachers win big on LOO ruling

SHARE   |   Monday, 13 March 2017   |   By Ditiro Motlhabane
Teachers win big on LOO ruling

Teachers scored a major victory against government on Friday when the high court ruled in their favour in a dispute with the ministry of education over levels of operation (LOO), which has dragged on since July 2013. In his judgment Justice Godfrey Nthomiwa set aside the decision by the permanent secretary in the Ministry of Education and Skills Development (MoESD) to require primary school level senior teachers to undergo a job evaluation assessment as a precondition to them to benefit from the levels of operation approved in 2013. He declared among others that primary school level senior teachers with responsibility are entitled to benefit from LOO without the precondition of a job evaluation assessment, and that MoESD and the Directorate of Public Service Management (DPSM) shall not use the results of any job evaluation assessment, which government may have so far undertaken in respect of primary level senior teachers. Justice Nthomiwa directed that the implementation of LOO to primary school teachers holding positions of responsibility be made retrospective to the month of July 2013, when LOO was first implemented in respect of secondary schools who hold positions of responsibility. This means government has to pay primary school level senior teachers back pays – their LOO benefits including corresponding salary arrears – calculated from July 2013. The effect of the judgment is that primary school level senior teachers who are presently graded at scale C1 are entitled to be graded above their counterparts who have no responsibility and are presently graded in the same scale. The upgrading of senior teachers at primary level to a higher salary scale (above C1) will have a ripple effect on all other senior positions held by their superiors all the way up to the head teacher level. Around July 2013 government revised salary grades of all teachers to bring them in line with general practice elsewhere in the public service. This was achieved through the implementation of what came generally to be referred to as the Levels of Operation. The aim and objective of LOO was adequately implemented and achieved in respect of secondary school teachers. Primary school teachers on the other hand fell behind on the implementation and senior teachers based in primary schools have never benefitted because (DPSM) demanded a job evaluation assessment to be done for them first. The lawsuit was instituted by teacher trade unions Botswana Teachers Union (BTU) and Botswana Sectors of Educators Trade Union (BOSETU).

Background

Prior to 2008, Government employed school teachers under a scheme different to that which other public servants were employed. Whilst all public servants (with the exception of those in the disciplined forces) were employed under and had their conditions of service regulated by the Public Service Act, all school teachers employed in the various Government and local authority schools were employed under and had their conditions of service regulated by Teaching Service Act. In 2008 Parliament passed the new Public Service Act part of whose aim was to consolidate the public service (with the exception of workers in the disciplined forces) under one piece of legislation. Thus, in terms of the new Public Service Act, 2008 all teachers who had prior thereto been employed under the Teaching Service Act were assimilated under the Public Service Act and the Teaching Service Act was repealed in whole. Following the assimilation of school teachers under the Public Service Act of 2008, Government in its capacity as the employer did in or around July 2013 revise the salary grades of all school teachers employed in Government schools. The aim of the revision was to bring teachers’ salaries in line with the salaries paid to other public servants. This revision was achieved through the implementation of what was then generally referred to as the “'Levels of Operation”. The agreed position between the Government and teacher trade unions was that LOO will be extended to all school teachers, both at primary school level and at secondary school level. The criterion for the application of LOO was that a teacher had to be occupying what within Government schools is known as “a position of responsibility”. Positions of responsibility comprise school teachers of the rank of Senior Teacher I all the way to the School Head. This criterion, it was agreed, would be applied uniformly at both primary school level and at secondary school level. There was no other agreed requirement for a school teacher to benefit from LOO and there has been no additional precondition that has at any time before now been applied by the employer when deciding whether or not to extend LOO to a school teacher.


The implementation of LOO started with teachers based at secondary schools, with the common understanding between the applicant trade unions and the Government that the scheme will soon thereafter be similarly applied to primary school teachers who hold positions of responsibility. The result of the implementation of the LOO to secondary school teachers who hold positions of responsibility was that such teachers were automatically elevated from Government salary scale of C1 to the higher D4 salary scale. This elevation was not a promotion, but an administrative measure aimed at achieving the goals and purpose of LOO. The teachers who were so elevated did not have a corresponding increase on their job descriptions. Some secondary school teachers, due to administrative hiccups, were not immediately absorbed under LOO, but this was later rectified and those teachers were accordingly paid their corresponding salary arrears (back-pays) calculated from July 2013, when LOO was first implemented at secondary schools. However, Government took time to implemented LOO in respect of teachers who are based at primary schools. In this way all primary school teachers who hold the positions of responsibility at primary schools, countrywide, are to date yet to benefit from LOO. The last response from the Directorate of Public Service Management has been that the matter   is still being looked into. No time frame was given as to the anticipated duration of the ‘looking into the matter’, which led to the trade unions suing government.