Human settlements minister Mmamoloko Kubayi fired the employee but the labour court ordered the employee’s immediate reinstatement.
Human settlements minister Mmamoloko Kubayi has lost her appeal against the Johannesburg labour court, which ordered her to reinstate an employee who she claimed was responsible after she was trapped in a lift, and who was then fired.
This week the labour court dismissed Kubayi’s leave to appeal, as it had no prospect of success.
In March, Kubayi got stuck in a lift for over an hour at her offices and notified her staff via WhatsApp. Deputy director of corporate services Nelly Letsholonyane immediately contacted the facilities director, who told her to contact the elevator company — which dispatched a technician to the building. Letsholonyane communicated with other relevant people in a bid to resolve the situation.
The next day Letsholonyane was summoned to the minister’s office and issued with a letter of an intention to dismiss her for alleged gross negligence that posed a threat to employees’ lives, as a result of the lift incident.
She was accused of failing to ensure the building and elevators were properly maintained and timeously respond to the minister’s entrapment.
Letsholonyane denied the alleged misconduct. She was later given an ultimatum by the minister — be dismissed, face a disciplinary hearing with suspension, or take early retirement. She opted, under protest, for the retirement option.
Days later, the minister phoned her and informed her that she was fired. Letsholonyane instituted proceedings in the labour court. Letsholonyane argued in court that the minister acted as the victim, witness, initiator and referee. The court said this was “not acceptable”.
In May, Johannesburg Labour Court acting judge Molatelo Makhura ruled the dismissal was in breach of the contract of employment. The minister was prohibited from summarily dismissing Letsholonyane without following proper procedure and ordered to pay costs.
The court ordered Letsholonyane be reinstated.
However, the minister sought leave to appeal against Makhura’s June judgment. When seeking leave to appeal, you have to seek it from the same judge that ruled against you. This means Makhura again had to decide on the matter.
On Tuesday, Makhura dismissed Kubayi’s leave to appeal as t it would have “no reasonable prospects of success” and there were “no compelling reasons” the labour appeal court should hear the matter.
Minister Kubayi and her director-general raised numerous grounds of review that they said justify granting leave to appeal.
They argued that the labour court has no jurisdiction, relying on judgments Makhura already dismissed as distinguishable in his May judgment. Makhura said the judgments were based on different areas of law, such as labour relations legislation, whereas Letsholonyane in this case had argued in terms of breach of contract. He dismissed this ground since, essentially, “the same arguments were advanced” in which he already found no merit.
The minister and her director-general then argued Makhura failed to properly consider aspects of the senior management handbook that governs disciplinary procedure. They argued that far from not adhering to procedure, they had in fact followed it.
Makhura, however, said that argument was “based on a fundamental misconception of the … handbook”. The minister, said Makhura did not show it was not possible to hold a disciplinary hearing. However, even if she could, that she wore three hats — complainant, initiator and chair — “would have called for more scrutiny of her conduct”.
He also dismissed the argument the court misunderstood the minister’s powers and “applied a criminal justice model and standard in finding that the minister has no power to dismiss”. Makhura said that power is reserved for the chairperson of the disciplinary hearing, which was not and could not be the minister. “The minister has undoubtedly given herself powers she does not have,” he said. Neither the minister nor the director-general could point to “the source of minister’s powers”.
He concluded, “it is my considered view that the appeal would have no reasonable prospects of success.” The Labour Appeal Court could hear an appeal if there were “compelling reasons”, but he found none in this case.
Makhura dismissed the application for leave to appeal with costs, to be paid by the minister and the director-general.
