The Industrial Court has found that the termination of the contract of employment of Public Enterprises Evaluation and Privatization Agency (PEEPA) Chief Executive Officer Obakeng Moumakwa in November, 2019 was substantively unfair and unlawful as well as procedurally unfair and wrongful.
Moumakwa, who was sacked by then Minister of Presidential Affairs Nonofho Molefhi approached the Court citing unfair dismissal.
He also challenged his initial suspension that led to the dismissal as well as calling for the setting aside of the investigation report into his conduct as he said he was not part of it.
Moumakwa also challenged the application of the provision of PEEPA Conditions of Service which he says do not provide for CEO disciplinary process.
The ex CEO said the Minister denied him the opportunity to make his case after he requested to be given more time to recover from illness.
In his ruling Justice Goemekgabo Tebogo-Maruping found that it was wrong for the Minister to terminate Moumakwa’s employment while on medical leave when he could not honor the order to make representations to him showing cause, if any, why the adverse decision of dismissal should not be implemented as recommended by the PEEPA Board.
“The undisputed evidence is that before the Applicant could make such representations for reasons of reported ill health, the Minister terminated his employment this was a clear denial of the right or opportunity given by the Minister. The question by the Court is why did the Minister give the Applicant the opportunity if he did not believe that it was fair to do so? Once again, the Court agrees with Attorney Moitshepi for the Applicant that the Minister gave with one hand and took away with the other, and this was clearly procedurally unfair,” Justice Tebogo-Maruping.
The judge however would not grant Moumakwa his will for reinstatement with back pays and or, as an alternative, compensation equivalent to the balance of his 5 year contract.
“The view which this Court takes regarding the appropriate relief is that compensation is such a relief as defined by the Trade Disputes Act and applicable case law. The Applicant is entitled to some compensation, not damages, based on the finding by the Court that the termination of his employment was both substantively unfair and unlawful and was also procedurally unfair.”
The Judge said Moumakwa’s pray for compensation equivalent to the balance of a 5 year contract sounds more like a claim for damages which, he said, the Industrial Court being a specialized Court and established by statute, is not empowered to grant.
“The Applicant clearly suffered some loss as a result of the premature termination of his employment contract and this factor is weighted in his favor. He was 56 years old when trial started. The Applicant is still employable, everything else being equal, even though he is approaching the twilight of his working life.”
He said Moumakwa had already served 1 year 9 months with PEEPA against a 5 year fixed term, adding this was not a long period of service.
“Given the circumstances of this case, the Court has determined that a fair and appropriate award of compensation for the Applicant would be the equivalent of his salary for 3 months. His monthly salary at the date of dismissal was P51, 005.00 and he is therefore entitled to compensation in the amount of P153, 015.00 (P51, 005.00 x 3) and the Court so orders.”
Justice Tebogo-Maruping, however, did not make an order in relation to costs.
