Senior manager: Dismissal and Municipal Systems Act

1 Comment

1. 

   GilesFiles on June 29, 2015 at 5:40 pm

   Extract from Comment by Prof Darcy du Toit in What to do about a defective contract of employment? that first appeared in IR Network published by LexisNexis [subscription needed]

   However, Snyman AJ went on to observe that, even if the contract had been in contravention of the MSA, the municipality’s way of dealing with the situation would have been – to put it mildly – problematic. He ruled:
   “It was simply not up to the [municipality] to by way of what is nothing more than self-help, seek to ‘abolish’ it. The fact is that the applicant should have sought to challenge the agreement by way of available legal avenues, such as, for example, applying to court to declare it invalid” (para 67).
   One of the cases referred to in arriving at this conclusion was Retlaobaka v Lekwa Local Municipality and Another [2013] JOL 30077 (LC), which also turned on an alleged defect in the contract of employment of a senior municipal officer. More specifically, no performance agreement had been concluded with the employee as is required by section 57 of the MSA as one of the conditions of appointment. In fact, this had been one of the additional grounds for review argued in the case of Mr Khoza but, since the municipality had failed to raise it in the arbitration hearing or lead evidence to that effect, Snyman AJ declined to entertain it.
   In the case of Retlaobaka, however, it was properly before the court. At issue was Mr Retlaobaka’s suspension in terms of regulations applicable to senior managers appointed in terms of the MSA. The fact that the procedure laid down by section 57 of the MSA had not been followed meant, as Lagrange J put it, that “there was no consensus on this vital term of the contract” (para 14). Thus, “while it is clear that the [employee] was employed by the council, his appointment as a senior manager to whom the disciplinary regulations apply was not finalised” (para 15) and, as a result, the regulations in question did not apply to him.
   Needless to say, this irregularity did not in any way imply – nor was it suggested – that the employer would have been entitled to treat the contract as if it did not exist, let alone ‘abolish’ it. While it might raise some fine distinctions bound up with the law of contract, in practice it would seem to mean that the municipality was required to regularise the position by making an appointment in compliance with section 57 of the MSA.