Parley disputes Labour awards to ex-Davids� employee

Goitsemodimo Kaelo | Friday November 24, 2017 18:16

 

Tau was fired as the senior administration officer/researcher at the Member of Parliament Isaac Davids’ Mochudi East constituency office in December 2016. He has been in the position since December 2014, until Dithapo dismissed him when his relationship with Davids had allegedly broken down irreparably.

The matter underwent labour processes before the arbitrator ruled in favour of the dismissed Tau, prompting the clerk to approach the Industrial Court to review the award.

When the parties appeared before Justice Annah Mathiba of the Industrial Court yesterday, Dithapo through Boineelo Mosweu of the Attorney General said the court should review and set aside the arbitrator’s award.

Mosweu argued that the termination of Tau’s contract was in terms of the employment contract in that he was paid a monthly salary in lieu of notice. He said the arbitrator missed the terms of the employment contract when he reached his decision.

He also argued that the arbitrator failed to apply relevant provisions in dealing with the matter because it is only when one’s contract is terminated for misconduct when the disciplinary hearing is necessary.

“The arbitrator dealt with the matter as if the second Respondent was terminated for committing misconduct. He referred to provisions, which deal with termination for misconduct. Such provisions are irrelevant and inapplicable to the fact of this case,” he argued.

He said the arbitrator should have realised that he was dealing with a termination of a fixed-term contract upon good cause and upon notice or payment in lieu of notice.

Mosweu said, alternatively, the court should review the amount awarded under compensation under the circumstances of this matter, as it is unreasonable and substitute it with a just award.

However, Tau’s attorney Nametso Makepe, said the arbitrator applied his mind to the terms of the contract in a rational manner. He argued that General Order 220.1 indicates that Tau’s employment was contractual in nature between the Applicant and the second Respondent, placed an obligation on the clerk to allow representations before terminating. He submitted that section 23 of the Employment Act prohibits termination on arbitrary grounds.

“And this failure alone is enough for this court not to interfere with the arbitration decision since none of the review grounds of the Trade Dispute Act have been established,” Makepe stated. He further said the courts have held that where a statute permits action to be taken against, or adverse to the interest of a person by a public authority, but is silent as to whether the affected person has a right to be heard, then a right to be heard should be read into the statutory provision.

Judgement in the matter has been reserved for December 19.