CCMA rules against former SARS spokesperson Adrian Lackay

Former SARS spokesperson Adrian Lackay has lost his application at the Commission for Conciliation‚ Mediation and Arbitration (CCMA) to change his resignation to constructive dismissal.

Lackay worked at SARS from September 2003 until he resigned on February 19, 2015. He was earning R1.45 million annually when he resigned and wanted this as financial compensation.

Commissioner Joyce Nkopane made her arbitration award on Friday. She ruled against Lackay and said neither party had to pay costs.

One definition of unfair dismissal Nkopane referred to was that an employee would carry on working indefinitely if the situation remained bearable.

Nkopane said there was no evidence that Lackay’s employment was “intolerable”. She said Lackay should have raised his issues with SARS commissioner Tom Moyane about their relationship. She added there was “no shred of evidence” to support Lackay’s fear of disciplinary steps if he formally complained.

Lackay said he needed a close working relationship and trust with the commissioner. This entailed access to information to plan and respond to media inquiries.

“It was not uncommon that he (Lackay) would walk into the office of the commissioner or the EXCO boardroom and obtain information in order to deal with the matter‚” Nkopane said.

“It appears that the nature of the relationship between Lackay and previous SARS commissioners was friendly to the extent that he would be informed of many things even those that need not be communicated to the media.”

Lackay testified this changed after Moyane’s appointment on September 24 2014. This was amid the allegations there was a rogue unit within SARS.

Nkopane found Lackay and Moyane at first had a “cordial or relatively good” relationship until the end of October 2014. Lackay said he was sidelined between November 2014 and January 20 2015.

Lackay pulled back the curtains on the workings at SARS. Among the issues he raised was that Moyane moved to another SARS office in Pretoria and struggled to reach him.

Nkopane believed Moyane using the SARS offices at Brooklyn Bridge instead of Lehae la SARS did not prove he removed himself from Lackay.

“On his own evidence (Lackay) even the previous commissioners used the two offices.”

Nkopane believed Moyane was new and it was “unfair to compare him with the previous commissioners”.

“It appears that Lackay expected that his preferences should have been the same as those of his predecessors and that he ought to have done things the same way. This is an unreasonable expectation.”