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FIRED NERCHA MANAGER DEMANDS E2.6M

18/01/2021 00:15:00 BY KWANELE DLAMINI

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MBABANE – A dismissed NERCHA manager has demanded E2.6 million from the organisation.

NERCHA is an acronym for National Emergency Response Council on HIV/AIDS.

Phumelele Dlamini, who occupied the position of Manager Programme for HIV and TB under the Grants Management Division, was dismissed after the chairperson of her disciplinary hearing, Banele Gamedze, recommended that a final written warning be issued against her.

However, NERCHA dismissed her summarily despite the recommendation of the chairperson due to the seriousness of the offences she faced.

Grievances

She was said to have lodged two formal grievances against the senior management team concerning the alleged irregular appointment of Head of GMU Victor Nhlabatsi and sexual harassment and victimisation against Director-Finance Services Dumisani Kunene.

The grievances were directed to National Executive Director Khanyakwezwe Mabuza.

She was said to have failed to substantiate the claims of sexual harassment. Her charges included dishonesty, insurbordination and imporper use of human resource files, among others.

Dlamini took the matter of her dismissal to the Industrial Court, arguing that the termination of her services was procedurally unfair.

Judge Nkosinathi Nkonyane dismissed her application on the basis that the High Court and Industrial Court of Appeal had both previously ruled that the Industrial Court does not have jurisdiction to hear such matters.

Judge Nkonyane said the Industrial Court was bound by decisions of the High Court and Industrial Court of Appeal.

In her present application, Dlamini wants NERCHA to pay her E2 616 149.04.

The amount consists of E1 088 175.12 for alleged unfair dismissal and E1 042 834.49, which remained on her contract of employment at the time of her dismissal in 2017. She has also wants E140 597.04 for gratuity, E146 462.40 for severance allowance and leave pay amounting to E83 692.80, among others.

Dlamini submitted that, while employed at NERCHA, she earned E45 340.63 per month and she had been working at the organisation for eight years. She alleged that she was never paid her gratuity after the termination of her services.

She maintained that her dismissal was procedurally unfair because she had been denied a number of rights, making the termination of her services unlawful.

Dlamini said her disciplinary hearing was held in her absence despite the chairperson granting her permission to leave after requesting to do so.

She told the court that she was denied an external representative and time to prepare her defence after the one she had appointed was allegedly threatened and denied an audience. She also alleged that the appeal panel was appointed by the same authority that dismissed her. The veracity of these allegations is still to be tested in court. NERCHA is yet to file its responding papers. Dlamini is represented by V.Z. Dlamini Attorneys.

Challenging

In her initial court application, Dlamini told the court that her services were terminated while challenging the process that led to her dismissal, as a result.

Judge Nkonyane said it was clear that the court was being called upon to review the decision of the employer. Dlamini, through her attorney, submitted that the court had jurisdiction to hear the matter.

The judge noted that the High Court and Industrial Court of Appeal had both previously ruled that the Industrial Court did not have jurisdiction to hear such matters.

“The Industrial Court is bound by decisions of the High Court and the Industrial Court of Appeal. One of the postulates of justice is certainty.

“The court will accordingly uphold the point of law raised by the employer that the Industrial Court has no jurisdiction to entertain the present application which is a review of the employer’s decision of terminating the applicant’s employment,” said the judge.

Victimisation

When NERCHA terminated Dlamini’s services, she had made sexual harassment and victimisation allegations against Kunene and the allegedly unprocedural appointment of Nhlabatsi. NERCHA said the accusations were baseless.

Dlamini was dismissed with effect from June 23, 2017, after the disciplinary hearing.

After accusing Kunene of sexual harassment and victimisation, Dlamini, by a letter dated April 19, 2017, with the heading ‘lodge of a formal sexual harassment/victimisation grievance against the director – Finance Service Mr. Dumisani Kunene’, she was invited to make submissions on numerous occasions on the issue.

Mabuza had previously stated that immediate action was to be taken to deal with the matter since NERCHA frowned upon such behaviour.

However, Dlamini, instead of submitting herself to the employer or tribunals set up to deal with the issues, she consistently insisted on being represented by an attorney, Muzi Simelane.

Despite a number of attempts to have her present her side of the story and substantiate her accusations of sexual harassment, Dlamini is said to have failed to do so.

On June 13, 2018 Mabuza wrote to Dlamini and stated that: “In view of your refusal to substantiate your grievances, I have limited information to allow my office to take appropriate action on same. In this regard, the grievance is returned to yourself until such time that you are ready to substantiate same.” She was charged with seven counts which included gross misconduct in that, she deliberately and intentionally lodged a grievance on sexual harassment which she failed to substantiate despite being given an opportunity to do so by her employer.

Harassment

Alternatively, she was charged with deliberately lodging a grievance of sexual harassment knowing that the grievance had no basis.

Dlamini faced other charges such as gross insubordination for refusing to make presentations and bringing an external representative during an internal hearing. She was accused of undermining the authority of her employer for failing to respect the garden leave she was afforded to prepare for the hearing.

She was served with a notice to attend the disciplinary hearing on June 16, 2017 and attended in the company of Simelane, who introduced himself as her legal representative.

Thembi Gama, who represented NERCHA, objected to Simelane’s presence since the hearing was an internal process.

Simelane said Dlamini had failed to find an internal representative of her status. He stated that the issues to be discussed were complex. He also pointed that there was an imbalance since Gama was an admitted attorney, making legal representation necessary.

Gama denied that the issues were complex and mentioned that her being an admitted attorney was not an issue.

The chairperson ruled that Simelane’s presence was not required.

Dlamini asked that the proceedings be postponed because she was not prepared and her application was denied. Gamedze gave her an hour to prepare herself.

The chairperson refused the application for postponement because Dlamini had been given four days to prepare herself and that she was on suspension, meaning that she had ample time to ready herself for the hearing.

Dlamini decided to walk out of the hearing and she was advised that her actions amounted to a waiver of her right to participate in the proceedings.

The matter proceeded without her. Her present application will be heard on February 15, 2021.