Pretoria - The Johannesburg Labour Court has ordered Minister of Human Settlements Mmamoloko Kubayi to immediately reinstate Nelly Letsholonyane, the deputy director-general of corporate services who she fired after blaming her for being stuck in a lift for an hour.
On March 14, at 7:53pm, Kubayi posted on a WhatsApp group saying she was stuck in the lift. She was informed that the responsible person had already left work.
Letsholonyane, who had left work already, contacted the acting director of facilities and security and advised her to contact Melco Elevators, the company responsible for the maintenance of lifts in the building.
Following that conversation, Letsholonyane further contacted several employees to assist in calling the company.
At 7:56pm she called the acting director-general to enquire about the progress and was informed that the company had been called and a technician was on his way to the building.
The next morning, Letsholonyane was called into Kubayi’s office where she was issued with a letter of intention to dismiss her for her alleged gross negligence that threatened the lives of the employees.
In the letter, Kubayi said Letsholonyane, as the head of branch and manager responsible to ensure regular maintenance of the building, had failed to avert risk.
“You ought to have known that there were still people working in the building at the time when the incident occurred. Your action of negligence in the execution of your duties has potential risk of litigation against the department,” the minister said.
She also said Letsholonyane failed to respond on time.
Kubayi requested Letsholonyane to provide her with a written explanation of why she should not be summarily dismissed for putting the lives of the employees and others who work at the building at risk.
She submitted the letter denying the alleged misconduct and indicated that the appropriate forum to deal with these allegations would be in a disciplinary hearing.
A couple of weeks later, on April 3, Kubayi called Letsholonyane into a meeting and gave her three options: be dismissed, face a disciplinary hearing with suspension, or take early retirement.
On April 14, Letsholonyane accepted the retirement option, on the condition that the early retirement should commence six months from the date of signature of the settlement agreement.
Kubayi replied to the letter the same day placing Letsholonyane on precautionary suspension with immediate effect, saying this was done to allow the finalisation of the matter.
In that letter, she further proposed a meeting with Letsholonyane on April 20 to engage on her conditional acceptance of the early retirement option.
Letsholonyane accepted the request to attend the meeting on condition that the department covered her legal costs, a request which was denied.
On the day of the meeting, Kubayi was not present and left Letsholonyane to attend it with legal services and representatives from the department.
When driving home, Letsholonyane received a call from Kubayi telling her that she has been dismissed and that she should expect the dismissal letter soon.
Aggrieved by the decision, Letsholonyane approached the labour court on an urgent basis, seeking a declaratory order that the summary dismissal breached her contract of employment and was unlawful.
After listening to all the facts, acting Judge Molatelo Makhura said the dismissal was unlawful because Kubayi failed to comply with the provisions of the Senior Management Service Handbook (SMSH).
Makhura said when political heads are alleged to have subverted the rule of law, or undermined provisions in valid agreements and “unleash lawlessness on the people they are supposed to lead, the courts of law should hasten, when called upon to intervene, on good cause”.
He ordered that Letsholonyane be reinstated immediately and further ordered that Kubayi or her delegate be prohibited from dismissing Letsholonyane without complying with the procedures in the SMSH.
Kubayi was ordered to pay the costs of the application.
Meanwhile, Kubayi and her department released a media statement on Monday, saying Letsholonyane was dismissed for other transgressions, not the lift incident.
This was despite the court pronouncing on the matter.
She said: “It is important to note that Ms Letsholonyane has been undergoing various disciplinary processes including those that precede the arrival of Minister Kubayi at the Department of Human Settlements.
“The minister firmly believes that Ms Letsholonyane was presented with several allegations of misconduct and afforded an opportunity to make a written representation as to why she should not be dismissed. The minister considered the representation and found the explanation to be insufficient.
“The matter is still ongoing in court, and once it has been finalised the minister will issue a media statement”.
IOL