Bitou faces R5m payout over dismissal

Update

PLETTENBERG BAY NEWS - Bitou Municipality, already ordered by the South African Local Government Bargaining Council (SALGBC) to pay out over R1m to a former director of corporate services who was unfairly dismissed, now faces the possibility of an even bigger bill of nearly R5m to settle the matter.

This after the former director, Misiwe Phyllis Mpahlwa, said she plans to consult her lawyers to go to court for breach of contract and to demand compensation for the full remainder of her employment contract.

Her dismissal on 31 August 2022 by Bitou Municipal Manager Mbulelo Memani and Mayor Dave Swart, was found to be "substantively and procedurally unfair" by SALGBC Commissioner Andiswa Makasi, who said it involved "political dimensions". Makasi also said the correct legal procedure was not followed.

Mpahlwa was hired by the previous ANC-led administration in Bitou on 1 February 2021 for five years on a salary package of R1 133 463 a year, but her contract was ended by the new ruling DA/ AUF/ PDC coalition, who allegedly had told her they could not work with people appointed by the previous administration.

At a special council meeting on Thursday 16 March, the municipality passed a resolution confirming the payment of R1 133 463 to Mpahlwa.

Background

Background given at the special meeting said that, on 28 July 2022, Memani, instructed by Mayor Dave Swart, started discussions with Mpahlwa on the possibility of the premature termination of her employment contract by mutual consent.

The special council meeting heard that an offer of 30 months payment in lieu of remuneration payable to her for the remaining term of her employment contract was made on 31 August 2022. Mpahlwa referred a request for arbitration to the SALGBC because her dismissal dispute referral for conciliation to the SALGBC remained unresolved.

The arbitration was heard and finalised on 15 February this year.

Husband

Mzu Mpahlwa, Mpahlwa's husband, in response to enquiries from KPH said that in October last year he had approached Helen Zille, the DA's Federal Council leader, to intervene in the matter because of his wife's dismissal.

"Now that the Bargaining Council has confirmed that she was unfairly and unprocedurally dismissed, we are going to consult our lawyers to go to court for breach of contract and to demand compensation for the full remainder of the employment contract," Mzu said.

SALGBC hearing

Evidence given during the SALGBC hearing indicated that in August 2022, Mpahlwa was presented with a "termination by mutual consent agreement".

She negotiated the terms of this agreement, however, it was never signed by Memani. Mpahlwa vacated her office on

1 September 2022. She claimed that she was dismissed, which the municipality denied arguing that there was a termination by mutual consent.

Memani wrote to her on 31 August on behalf of the mayor, as well as in his own capacity as the accounting officer for Bitou Municipality, and advised her that her contract was ending on that very day, 31 August.

Memani testified at the SALGBC hearing that he had indeed presented Mpahlwa with a draft termination agreement, which they had discussed.

He confirmed that neither he nor Swart signed the proposed termination agreement. Memani said the proposed amount of severance pay that was discussed as payment was 2,5 years (30 months).

Memani conceded that for terminating the services of a section 56 employee (directors), this must be done by the council, which he is authorised to represent. He also conceded that Mpahlwa's employment contract stated that, should the contract be terminated, the full remaining term of her contract shall be paid.

Analysing the arguments and evidence, Makasi said it was clear that parties were in negotiations regarding the termination. She said there was no agreement regarding the terms of the termination as Memani offered 30 months while Mpahlwa wanted 41 months as severance pay.

"It is also clear from the evidence before me that the procedure recognised in law was not followed when such dismissal was carried out," said Makasi. "As such, I find the dismissal to be substantively and procedurally unfair."

Makasi said, while Mpahlwa's claim had been for the full term of her appointment (until 2026), the award for compensation was restricted by the Labour Relations Act 66 of 1995, as amended, and accordingly limited compensation to 12 months remuneration.

On 3 March she ordered the municipality to pay Mpahlwa R1 133 463 by no later than 14 March.

The Bitou Municipality formalised the payment at the special council meeting held on 16 March.

Bitou MM Mbulelo Memani