Patrick Deale speaks to Gugu Mhlungu on NightTalk, Radio 702, about the rights of employees who’ve been dismissed despite being reinstated following a disciplinary hearing. Reference was made to Eskom’s Matshela Koko’s disciplinary hearing and reinstatement, where the Presidency had issued a directive saying that certain senior executive managers at Eskom should be relieved of their duties.
Gugu Mhlungu (Radio 702):
Prish Govender, who was cleared by disciplinary process two weeks ago, a couple of weeks ago, returned to work at Eskom – but also then after that today announced his resignation with immediate effect following Anoj Singh’s resignation with immediate effect.
There are still questions though for what could be the future for Matshela Koko. You remember over the weekend, the Presidency released a statement saying senior executives like Matshela Koko, like Prish Govender, like Anoj Singh who was involved in disciplinary processes should resign or be removed from their positions. Minister Malusi Gigaba, from Treasury, reiterated that and pleaded with the senior executives to leave their positions in the best interest of the country.
But, if someone like Matshela Koko refuses to leave his position and is then removed by the Board, does that then draw Eskom into perhaps a long and costly legal process to try and get his job back?
And try to answer that question we are joined on the line by labour law expert Patrick Deale [Internal link: https://deale.co.za] to speak to us about what could be the potential recalls for Matshela Koko, who was cleared also by the disciplinary process if he’s then removed from his position.
Patrick, good evening. Thank you so much for joining us on NightTalk.
Patrick Deale (Deale Attorneys):
Good evening, Gugu. Good to be here.
So, we saw a statement coming out of the Presidency over the weekend specifically from the Chair of the Inter-Ministerial Committee on SOEs which is the Deputy President of the Country, who is also the Head of Business Government, saying the Board needed to deal quite decisively and urgently with members of the senior executives who were involved in disciplinary processes. Which was quite interesting because those individuals have also just been cleared by Eskom’s own internal disciplinary processes.
So legally, what is the legal standing of that instruction from the Presidency? Or any action from the Board against individuals who’d been cleared? Could they claim that they challenge the decision to have them removed?
Yes, they could, Gugu.
They are still entitled to a fair inquiry and they do have rights to put their case and to challenge the case against it. And so, there must be some process of that sort to make their terminations fair. It’s because they’re still employees. These individuals that we’re talking about wear different hats. They are employees where the normal labour laws of fair procedure would apply, and a fair hearing would apply – prior to a dismissal – and obviously a fair reason.
They are also directors of the institutions and so they have different responsibilities as directors. In other words, statutory obligations in terms of the Company’s Act. So that they can be removed as Directors of Eskom, in this case, by the Board. Because, for one or the other reason, they haven’t fulfilled their duties. So, there is a statutory procedure in terms of the law that they can be removed on that basis. And that doesn’t have to do with issues around fairness: It has got to do with whether they are suitable for their jobs and whether they have performed their fiduciary duties and they could be, especially, voted out of the Board.
But having done that, they still can remain employees of the organisations. As employees, as I said earlier, they are still entitled to fair process.
As I understand it in this case, the individuals have been through disciplinary inquiries and found not guilty. And now the Board has been told to remove them. They would possibly have to – as they have been trying to do – is try to get them voluntarily to leave by getting them to resign. But they don’t have to do that. If they wanted to, they could put up a fight. They could resist it.
What the Board would do is have a look at the charges that were originally laid against them to see whether they were properly formulated, whether there are other issues of alleged misconduct that perhaps weren’t put as well as they should have been the first time around. It is possible that a new disciplinary inquiry could be convened for them on those charges.
Where does the process of constructive dismissal fit into this – what is commonly referred to as constructive dismissal?
Well, it probably doesn’t apply in this case. Constructive dismissal is a situation where the management of the organization makes the working life for that individual intolerable. So, the person is forced to leave or first forced to resign. And only then later comes back and says, actually, that wasn’t really a dismissal. I was forced to resign. And now I’m going to apply for a [Unclear 5:49-5:52], that I was in fact dismissed constructively. In other words, they created a situation where I had no option but to resign.
In this situation, it possibly could end up in that zone. If they put a lot of pressure on them, and they said, ‘Well, look, you obviously don’t want me here. I’m going to resign and I’m going [Unclear 6:21] constructive dismissal.’
But the fact is that constructive dismissal is a very hard thing to prove even in this situation. And only about 20% of constructive dismissals are actually successful because the initial onus is on the employee to say that I was dismissed. In other words, that I was put under intolerable pressure. So, you have to look at the evidence [Unclear 6:45-6:49] for the employee to be able to show that or to prove that. And once having done that, then the employer, if he succeeds, [Unclear 6:57] then the employer would have to say, ‘Well, it was fair.’ So, it’s quite a tricky process. It’s quite a technical process that could unfold. And so, that could possibly be an avenue, yes.
If an employee subjects themselves or makes themselves available for a disciplinary process, the Labour Relations Act says that doesn’t mean they don’t have the option of legal representative – so it’s not either or. So, having gone through a disciplinary process doesn’t mean you can’t involve a legal expert in that process or even after that process. Is that correct?
Well, [Unclear 7:40-7:42] about that process, if it’s a second disciplinary inquiry [Unclear 7:44], the same rule applies about legal representation. Whether it’s a first inquiry, or a follow-up inquiry, or new charges perhaps, the principle is that generally legal representation is not permitted in an internal disciplinary inquiry because the individuals concerned are able to be represented by colleagues of their choices, and so on.
But what often happens, especially at executive level, that there is an agreement that there can be legal representation. Because people at that level don’t often have colleagues at their level who are able to represent them adequately. Because the issues are pretty complex, then quite regularly at that level legal representation is allowed. The reason why legal representation is not allowed, generally speaking, is because it tends to overcomplicate internal disciplinary inquiries. And if people are dismissed, they do have access to other processes like the CCMA and Labour Court, etc.
But as I say, often in executive dispute kinds of cases that we deal with, legal representation is allowed because it can help to facilitate the process. And to help the executives deal objectively with it because they are so personally involved with it. They don’t have someone else to represent them. It’s difficult for them to present their own case.
An article that we were reading just ahead of this conversation, said by Advocate Wessels, he was saying the downside of engaging legal representation is that it can prolong the matter and result in higher costs. And he said that Matshela Koko’s matter seems like a typical example of this. So, the matter could go on for very long. Obviously, with costs on both sides. The employer, I assume, would have deeper pockets than say the employee. And even then, there is no guarantee that the matter will be resolved quickly even in favour of the employee.
Sure, yes. In lieu of legal representation, it can certainly complicate things. It depends on which lawyers are involved and what the strategies are. Because it is possible to take technical points and spend a lot of time of time on procedural issues and technicalities and asking for adjournments and wanting time out for taking [Unclear 10:30], etc., etc. So, it is possible that legal representation can delay things from time to time.
But equally, it’s possible that if we have legal representation which is going to be that actually deals with really what the issues are. In other words, not take the technical points, ‘Did this person to this, or did he not do that?’
To get into the merits of the case – and ultimately things do run pretty smoothly to take that approach rather than the delaying tactic approach. It’s known to be a strategy that, ‘Let’s go in and let’s delay this.’ Put it off as much as possible. They’ll just get tired of it and we’ll then end up [Unclear 11:21] forced into some sort of settlement discussions because this can’t go on and on with all of these costs and delays and disruptions to the organisation. So, it is used as a strategy, but not often. Sometimes, it is used as a strategy to force an employer [Unclear 11:37] talking a negotiated outcome as opposed through the agonising process of legal technicalities.
Patrick, thank you very much for your time this evening. That’s Patrick Deale from Deale Attorneys joining us this evening. Always a pleasure speaking to you, Patrick.
Thanks, Gugu, my pleasure. Have a good evening.