Durban - A politically and financially unstable municipality in KwaZulu-Natal has been ordered to pay over R679 000 to a former senior manager it unfairly fired in April this year.
The eMadlangeni (Utrecht) local municipality, run by the IFP, in the north-western part of the province, unfairly fired Zamokuhle Johannes Mkhize. Mkhize was the manager for corporate services at the time.
Mkhize’s contract kicked off on February 1, 2018, while the municipality was still under the political leadership of the ANC, and it was supposed to end in January 2023.
However, in April this year, he was fired, and the new administration claimed that he had reached the retirement age of 65.
Mkhize, who was fired while earning a basic salary of R67 900 a month, first took the matter to the Labour Court on an urgent basis, and the court ruled against him, saying it was not urgent.
It was then enrolled in the normal roll of the court.
From there, Mkhize took the matter to the South African Local Government Bargaining Council (SALGBC) for arbitration.
The matter was then heard on August 30, this year, and a ruling was handed down on September 28.
In its arguments through lawyer Larry Seethal, the municipality tried several defence lines, and they were all dismissed.
Among the defence, Seethal claimed that Mkhize had reached the retirement age of 65.
In response, Mkhize, through a lawyer, Philani Cebisa, submitted that the law relied on by the municipality to terminate the applicant's fixed-term contract of employment was inoperative because it was declared unconstitutional.
Mkhize’s lawyer said it was true that as a general rule, an employer may not dismiss an employee based on his/her age.
Again, the municipality tried to challenge the matter on the jurisdiction, saying that the Labour Court was still going to hear the matter and as such, it should not be heard by the SALGBC.
That again fell flat when they were told that the Supreme Court of Appeal set a precedent when it ruled in one case that an employer can simultaneously use multiple avenues to seek justice when he or she feels unfairly fired.
In the end, the SALGBC Commissioner who heard the matter, Happy Khanyile ruled in favour of Mkhize.
“I accept that the respondent complied with a notice period in terms of the contract of employment, therefore, find that the dismissal was procedurally fair.
“However, turning to substantive fairness of dismissal, I find that the reason used to terminate his contract of employment was not a fair reason, because it was not part of the contract of employment when it was concluded.
“Therefore, I conclude that the dismissal was substantively unfair,” Khanyile said in the ruling.
Khanyile also noted that Mkhize did not wish to be reinstated because it was clear to him that the relationship had broken down irretrievably and, therefore, he sought compensation.
“In considering the compensation that is just and equitable in all the circumstances, I have taken the following factors into consideration:
i) The dismissal was procedurally fair but substantively unfair.
“ii) The applicant is currently unemployed; iii) The applicant's unexpired fixed term of the contract of employment from the date of dismissal, on 02 April 2022 till 31 January 2023, is a total of 10 months.
“iv) The applicant was earning a basic salary of R 67 900, at the date of dismissal. I, therefore, award compensation equivalent to 10 months calculated at a basic salary of R 67 900 in the amount of R 67 900 x 10 months = R 679 000,” he said.
The municipality was also ordered to pay Mkhize’s legal costs he incurred while he was challenging the unfair dismissal.
Asked whether the municipality will challenge the ruling or accept it and where the money will come from since the municipality is facing financial difficulties, the municipality’s spokesperson, Ayanda Mabaso, said that now lies with the council.
“Kindly be advised that this matter requires council consideration and for council to take a resolution in this regard,” Mabaso said.
sihle.mavuso@inl.co.za
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