09/09/2016: DECISION TO END THE RELATIONSHIP OF EMPLOYMENT WITH THE MD OF PIKITUP, MS NAIR
The Board of Pikitup has decided that it is in the best interest of the company, a wholly owned entity of the City of Johannesburg, its shareholder, employees and the residents of the City of Johannesburg to end the relationship of employment with the Managing Director, Ms Nair, with immediate effect. The Board has consulted with, and received support for its decisions over the period, from the former and then the current political leadership of the City in their capacity as shareholder.
Charges against Ms Nair
Following allegations made by SAMWU against Ms Nair, an independent forensic investigation into these allegations was completed by SM Xulu and Qhubeka Forensic Services on 27 June 2016. On 29 June 2016 Ms Nair was provided with the forensic report and draft charges. On 5 July 2016 final charges, comprising eight charges related to recruitment and remuneration of employees and three charges related to procurement, were served.
CCMA ruling on legal representation
On 5 September 2016 the CCMA ruled against the Pikitup Board in its application to be legally represented in the disciplinary enquiry to be conducted by an arbitrator, as provided for in Ms Nair’s contract. The application was made for numerous reasons, including:
The Board sought to protect the privacy of the parties and accordingly did not share the charges or the independent forensic report with employees at Pikitup, to allow Ms Nair an opportunity to respond to the matters with which she was charged at a properly constituted disciplinary enquiry and not be subjected to the risk of being found guilty in the court of public opinion.
It would not in any event be appropriate for an employee to present the case against Ms Nair. Although she opposed the application, Ms Nair previously concurred with this view. She was suspended for 11 months commencing in 2014 and resumed duty on 12 February 2015. She communicated with the Board in writing on 11 March 2015, in requesting the company to settle her legal expenses incurred during her suspension that the use of a lawyer was unavoidable as “The notion of using a fellow employee was impractical as no-one would have represented me given the fear of reprisal and there is no-one within Pikitup who has the expertise to run such a matter”.
There are no employees in Pikitup, in the view of the Board, with the expertise, experience or capacity to represent the employer in the enquiry. This is evidenced by the fact that Ms Nair appointed external presiding officers and used the services of a legal firm to present cases in all but two disciplinary enquiries since resuming her duties in February 2015.
The Board itself is not in a position to present the case as it would clearly be inappropriate and members of the Board are not full time employees of the company.
The Board offered, in the interests of equity between the parties, to pay the legal fees of Ms Nair subject to certain limits and recovery in the event of any finding of wrongdoing. It is now two months since the charge sheet was served on Ms Nair and the enquiry has not yet commenced as a result of the in limine application for legal representation.
Investigation by the Public Protector
The allegations made by SAMWU against Ms Nair were also reported to the Public Protector. An investigation into these and additional allegations, led by the Deputy Public Protector, is ongoing. Ms Nair will have an opportunity to respond to the allegations against her in terms of Section 7(9) of the Public Protector Act.
Rationale for the decision of the Board
The Board takes overall responsibility for the company and is required in terms of the Municipal Finance Management Act to protect the revenue base of the company. It has become clear that the direct and indirect financial implications and the associated time implications of proceeding with a lengthy disciplinary enquiry by an arbitrator, will significantly outweigh the benefits of proceeding with the enquiry.
The detailed rationale for this decision is:
Ms Nair is currently on special leave with full pay and Pikitup is obliged to continue to pay her for the duration of the enquiry, which for a variety of reasons is likely to continue for a large part of the remainder of Ms Nair’s contract.
In extending Ms Nair’s special leave on 30 June 2016, the Board communicated to her that “in the event that you consider it necessary to communicate with the Board, any member of staff or indeed any person associated with Pikitup, we require that you do so through the Acting MD.” In response Ms Nair requested that matters pertaining to the disciplinary enquiry be communicated with the Chair of the Board which was agreed to. Although Ms Nair has denied that she is in communication with employees at Pikitup, there is evidence of such communication and in a letter dated 27 August 2016 Ms Nair states “I wish to record that I shall talk to whomever I wish to.” This situation is quite obviously untenable and causes instability in the company.
Members of the Board, executives and employees should devote their time single mindedly to the core mandate of the company, instead of being preoccupied for an extended period of time with activities related to the enquiry.
The company requires a full-time MD to provide leadership, restore stability and improve service delivery as expected by the residents of Johannesburg.
Lastly, in view of the pending report of the Public Protector in respect of the same allegations that have been levelled against the MD, the Board is of the view that it will suffice to take any further action based on the report of the Public Protector.
Breakdown in the relationship of trust of trust
It is the view of the Board that the relationship of trust with Ms Nair has broken down irreversibly. In addition to the facts and evidence related to procurement and disclosure, the forensic investigation and the misconduct enquiry, correspondence with Ms Nair has become increasingly vexatious, politicised and hostile to the former and current leadership of the Board and the City.
In similar vein it is clear that Ms Nair would have considerable difficulty in creating a relationship of trust with organised labour, and providing the leadership necessary to create harmonious workplace relations, a reasonable expectation of an MD in any company.
Financial implications of termination and consequence management
The only legal and cost effective means available to the Board to end the employment relationship is to settle the remainder of the employment contract with Ms Nair. The Board has taken action against the MD for violation of her duties as an Accounting Officer in terms of the Municipal Finance Management. We have accordingly issued a letter of demand to Ms Nair to recover acting allowances and remuneration in excess of upper limits paid to
employees without due authorisation. We have also reserved the right to recover any further amounts which may be uncovered, including any amounts that may arise from the recommendations by the Public Protector. Legal action in the civil courts will be instituted against Ms Nair in terms of section 176 (2) of the Municipal Finance Management Act to recover the losses suffered by Pikitup if need be. The amount that is being claimed by Pikitup
will be held in a trust account pending the resolution of the claim.
We wish Ms Nair well in her future endeavours.
ISSUED BY: PIKITUP, THE CITY OF JOHANNESBURG’S WASTE MANAGEMENT ENTITY
For more information, contact:
Cllr Anthony Still
MMC for Environment and Infrastructure Services
Cell: 0795060568 | Email: firstname.lastname@example.org