BNYC challenges P2M court ruling
Mpho Mokwape | Tuesday July 26, 2016 15:58
On Friday, representatives of the Council appeared before the CoA to challenge a 2015 ruling by Justice Zein Kebonang in favour of the two former employees, Goitse Mpolokang and Tibapi Gucha.
The two, who were axed in 2012, challenged the BNYC for dismissing them from work with immediate effect. Mpolokang who was an events officer and Gucha, a former capacity building manager, stood to pocket around P1 million each.
BNYC, through their attorney Joseph Akoonyatse, told the CoA that the duo’s dismissal was lawful and they were therefore not entitled to damages. Akoonyatse submitted that the trial court erred when it ruled in favour of the two because there was a valid reason for the termination of the employment contracts.
“The substantive and procedural fairness was exercised during termination. The contracts of the dismissed clearly stated that they were not entitled to a hearing prior to the receipt of termination,” he said.
He argued that in the event that the CoA agreed with Kebonang that the pair, even though not entitled to a hearing, should have had reasons for their termination communicated to them prior to the delivery of letters, the bench should then assess the quantum of the damages.
He maintained that if the court finds that their dismissal was unlawful, then the quantum of damages must be restricted to one month’s salary, being the time equivalent to the notice period for the termination under their terms of employment.
However Mooketsi Segaise, representing the duo, maintained that the trial court was right in ruling in favour of his clients because the BNYC had failed to notify them prior to the termination of their contracts.
He said that where there are valid reasons for termination of employment contracts, the principle of substantive and procedural fairness always comes into play.
“In this case therefore the termination must have been preceded by notifying employees of the reasons for termination and they should have been given an opportunity to challenge those reasons through a proper and fair enquiry. There should be reasons for termination,” he said. Segaise further argued that the rules of justice required that there must be a fair procedure established prior to dismissing an employee. He pointed out that, as stated in a similar case, though the Employment Act does not particularise the procedural steps to be taken by the employer before an employee is dismissed for misconduct, the rules of natural justice must always be invoked in such cases.
The two employees had approached the High Court to set aside their dismissal on the grounds that it was unlawful. The two individually received termination letters on September 26 2012, terminating their contracts of employment with the organisation with immediate effect. While still employed by BNYC, Mpolokang was paid a monthly salary of P19,000 and Gucha earned P23,000 per month.
They wanted BNYC to pay contractual damages for the unexpired period of their contracts and be paid damages for loss of employment, emotional distress, embarrassment, anxiety and shock. The two employees contended that their dismissal was substantively and procedurally unfair as there were no valid grounds justifying termination nor were they given a hearing before their contracts were terminated. Consequently, they argued that their dismissal was not only unfair but unlawful as well.
Justice Kebonang had ruled in their favour saying the BNYC by offering the former employees a three-year contract of employment, had created a legitimate expectation that the two would have continued employment, barring anything unforeseen, for at least three years.