Opinion: Lessons to be learnt from SABC dismissals debacle

BY JONATHAN GOLDBERG: CEO - GLOBAL BUSINESS SOLUTIONS; AND GRANT WILKINSON: EXECUTIVE - GLOBAL BUSINESS SOLUTIONS - JULY 29, 2016

On the 26th of July an urgent judgment was issued in the Labour Court under case no. J1343/2016.

This matter involved an urgent application by a number of employees of the SABC. Initially the employees had sought interim relief to uplift their suspensions from work, suspend disciplinary proceedings against them and various other related relief. This interim relief was subject to a number of other applications.

 The applicants were provided with ammunition in their application by the recent Constitutional Court outcome, which declared the ban on broadcasting protest action as illegal.

The amended papers then filed had included the setting aside of the dismissal of the employees which had taken place and ordering their reinstatement.

It is unnecessary for us to summarise the facts of the matter as these have been within the public realm.

The charges against the employees involved amongst others, non-compliance of their contractual obligations with alternatives of insubordination and insolence. This was due to, amongst other things, the distancing of the employees from the instruction provided. Despite a number of these background applications occurring, the SABC acted recklessly and terminated the services of the individuals with immediate effect. This necessitated the amended papers.

The employees’ application was based on two grounds; firstly, that it was unlawful to terminate their services without complying with the contractual rights to a disciplinary hearing before they were dismissed; and they secondly contended that their dismissal would mean breaching their constitutional right to freedom of expression and therefore cannot be a lawful basis either.

There were a number of arguments that would be too lengthy to summarise herein, with regards to the jurisdiction of the Labour Court to hear the matter. The Court found that whilst certain claims under the Labour Relations Act could not be heard by it, the Labour Court is entitled to entertain the claims based on the alleged invalid termination of their contracts of employment and to make orders that are competent to remedy the breach of contract

It is impossible to capture all the arguments and rational in a summary of this nature, however once it assumed jurisdiction, the court reached the following conclusion:

The court found that the dismissals should be nullified and as a result there was an order granted declaring the employees’ dismissal invalid, as if they had never taken place. Added to this the SABC would allow these people to return to their workplaces to resume their duties. The SABC was also interdicted from proceeding with their proceedings initiated against the employees.

Lesson to be learned:

No matter the situation, if your policy provides for a particular process to be followed contractually. These processes in line with the terms of the LRA, then need to be followed to ensure fairness.

There is no rational for exerting excessive power and ignoring procedures in exercising this function, particularly if there is a questionable motive for the dismissals.