THE Labour Court has dismissed with costs the unlawful termination of employment of a special adviser to the Deputy Minister of Correctional Services and Justice, Patekile Holomisa.
The court's decision marked a victory for Mzukisi Ndara who sought an urgent interdict preventing the acting national commissioner for the Department of Correctional Services and Justice (DOCS), Makgothi Thobakgale, and Holomisa from dismissing him with effect from yesterday.
The government and the Department of Correctional Services and Justice were further ordered to pay back a salary shortfall of R254 000 which was “unlawfully deducted“ from Ndara within the next 10 days.
Thobakgale, Holomisa, Justice Minister Ronald Lamola and the Department of Public Service and Administration were also cited as respondents in the matter.
The judgment also paved the way for due consultation that could take place between the parties as to the early termination of Ndara's five-year employment contract.
Ndara turned to the court after he was served with a letter of dismissal in March which cited, among other things, an alleged breakdown in the working relationship between him and Holomisa.
In support of his application for urgency in challenging his dismissal, Ndara cited an economic impact that the purported dismissal would have on him and his minor daughter and the psychological strain he had endured at the hands of his employer. He stated that he had served the state with an unblemished record since 2014.
Legal counsel for the respondents, advocates Jerome van der Schyff and Cecily-Ann Daniels, argued for the dismissal of the application with costs this week.
Ndara was initially appointed as head of office to Holomisa in June 2019 on a salary level 13 and, after the deputy minister initiated a staffing change, the late Khaya Somgqeza was appointed to that position in July and Ndara was made a special adviser on a salary 14 scale.
But court papers showed that despite correspondence which sought to “regularise” the appointment, it was not implemented because, as at July 2019, Holomisa’s office had two heads of office.
In an affidavit Ndara said Holomisa, as an executive authority, appointed him as special adviser at level 14 salary in August 2019 but there was no contract of employment from the department.
In papers submitted to the court, Ndara also said he was forced and “threatened” to sign another contract of employment for the special adviser position at a lower salary 13 in August 2021.
He further said he sought to talk with the employer to try to reach a mutually acceptable agreement after the department failed to pay him the salary due to him.
He said his request was met with a termination letter.
“It is evident that there were disputes between the employer and the applicant as to which contract governed the employment relationship.
“The respondents in their papers rely on a contract which was signed and backdated on 5 August 2021. It is in all respects identical to the one signed by the applicant as head of office, including his level of remuneration, save that the post was indicated as technical specialist (special adviser),“ said Judge Hilary Rabkin-Naicker in her judgment.
She further said both contracts contained provisions of the Public Service Act and the Labour Relations Act which declared that either party, after consultation and agreement, may terminate a contract before the expiry of an original term of office - subject to certain conditions.
Judge Rabkin-Naicker ruled that the termination was unlawful as it was not in accordance with the Labour Relations Act and Ndara was not afforded an opportunity to be heard.
“The respondents have provided no explanation as to why the audi (alteram partem) clause was not honoured. It is difficult to fathom why, short of exasperation on the part of the respondent, the termination letter was issued without regard to the necessary process being undertaken,” Judge Rabkin-Naicker said.
In her argument, legal counsel for Ndara, advocate Liziwe Dzai also brought to the court’s attention that a change in Ndara’s remuneration status was implemented without his consent and knowledge in August 2019, resulting in the lowering of his salary.
Dzai argued that such action was unlawful as it was prohibited by the Basic Conditions of Employment Act.
Judge Rabkin-Naicker noted: “The respondents have made no case in answer to this claim. They have made no allegations or submissions that the post of technical adviser invited a lesser salary. In proceedings before court I asked for clarification on the reduction of gross salary, but none was forthcoming. The respondents, thus without explanation to him or to the court, reduced the applicant’s salary and did not afford him any adjustments or notch increases. The conduct amounts to unlawful deductions.”
The judge ruled that the deductions were unlawful, invalid and in contravention of the Basic Conditions of Employment Act.
The department was also ordered to pay the costs of the application, including the costs of two postponements.
Ndara is the author of the book A Quest For Justice which chronicles his 17-year-long battle with FirstRand Bank following a fraudulent vehicle sale contract financed by WesBank.