“An appreciation of the character of the trust and confidence which is relevant in this case must have regard also to the fact that the Municipality is subject to a statutory domain which includes the control and accountability provisions concerning municipal funds contained in the Local Government: Municipal Finance Management Act 56 of 2003, as well as the Local Government: Municipal Systems Act 32 of 2000, section 4(2) of which obliges the Council to use the resources of the Municipality in the best interests of the local community.   Schedule 2 to the Act is a Code of Conduct for Municipal Staff Members which stipulates inter alia that employees must at all times act in the best interest of the municipality and in such a way that the credibility and integrity of the municipality are not compromised.   It is also stated that employees may not use, take, acquire, or benefit from any property or asset owned, controlled or managed by the Municipality to which that staff member has no right.   Considerations such as these contribute to an appropriate understanding of the operational environment and requirements of the Municipality.   To that extent they are relevant, although I fully bear in mind that the charge here in question was not framed as a breach of this Code.   It is nevertheless an environment with which Mr H… was well acquainted and within which his sanction must now be considered”.

This passage is taken from para [11] of the judgment of Tip AJ in Theewaterskloof Municipality v SALGA (WC) unreported case C 966/08 dated 14 May 2010 where an unusual situation arose.   Tip AJ was required to determine whether there was a valid and fair reason to terminate the services of the Manager: Health Services with a clean disciplinary record of 22 years despite the dispute having been heard by an arbitrator.   In other words it was not the run of the mill review application where RAT (‘reasonable arbitrator test’) had to be applied.   In a sense RET (reasonable employer test) applied.

The facts were not that complicated.   In error the Manager received 2 payments totaling R7,000 by way of a transport allowance to which he was not entitled.   At first he made a ‘ridiculous’ offer to repay the money at R10 per month pleading that he was a ‘poor white’ and then denying that he owed the money.

Tip AJ held that there was a valid and fair reason to terminate his services summarily (without notice pay).   This was a matter where the employer could simply have prepared a written notice setting out the facts and require the Manager to respond.   But the employer in its wisdom ‘charged’ the Manager and then terminated his services after effectively finding him ‘guilty’ of an ‘offence’.

It is disturbing that the judge adopted the same type of language and no consideration was given to the question of whether or not there was gross or serious misconduct which would have justified a summary termination.

The judge dealt with the charge and effectively found him guilty of an offence and upheld  the summary termination of his services on 2 October 2007.   In the process the judge distinguished between the finding of ‘guilt’ and the ‘sanction’ when all that was called for was to find on the facts that there was a valid and fair reason to terminate related to the Manager’s conduct.   The next enquiry should have been to decide whether the trust relationship had been seriously damaged or destroyed without reasonable cause and find that the employer had in fact legitimately lost all confidence and trust in the Manager’s ability to do his job.

Be that as it may the judge did a thorough job of  considering all the relevant factors before deciding that the termination was not unfair.   Tip AJ dealt with issues such as accountability; lack of remorse; defiance; long service; unblemished disciplinary record; corrective and progressive discipline; intolerable working relationship; operational requirements; disobedience; insubordination; public service and best interests of local community.