The labour court ruled in favour of an EOH employee who was retrenched when executives in the disgraced IT company were fingered in corruption allegations at the state capture inquiry, as it ordered that he be reinstated.
Watson Kelemogile Lekalake was an EOH employee since 2012 and was appointed to perform SAP ABAP programming, which was also integrated into finance, for the department of water & sanitation (DWS).
EOH CEO Stephen van Coller had several years ago disclosed to the Zondo commission of inquiry irregularities within the company, which led to millions of rand being funnelled to various people including the ANC in exchange for tenders. This seemingly rippled to Lekalake, as in May 2019 he received a letter inviting him to a poor-performance hearing to assess his ability to perform his duties and his suitability to continue employment.
Lekalake requested documentation from Gavin Devereux, an SAP contract manager for DWS, so he could prepare for the scheduled hearing. EOH senior business partner Carl Legodi responded and not Devereux. Instead of providing the requested documentation, Legodi indefinitely postponed the hearing.
On the same day, Devereux sent an e-mail informing Lekalake that DWS had instructed that he be removed from the site with immediate effect. Lekalake was further instructed to remain home, not to contact any employee of DWS and not to discuss the content of the e-mail with EOH or DWS employees.
Lekalake obliged but approached the CCMA as he saw the content of the e-mail as an unfair suspension. In June 2019 the CCMA matter was heard and according to Lekalake, an agreement was reached that he should return to work that month.
His first day back at work included an invitation by Legodi to attend a section 189 consultation. According to Lekalake, Legodi had said he would look for an alternative position for him, which he never received. After a second consultation meeting later in June, it was confirmed that there was no alternative position offered to him.
Lekalake was aware that EOH had a contract with the City of Johannesburg and another company. But Legodi presented Lekalake with a voluntary retrenchment, which he rejected. EOH retrenched Lekalake in terms of section 189 of the Labour Relations Act.
Lekalake brought the matter to the labour court to order the dismissal unfair and to be reinstated.
If serious corruption allegations led to the downfall of the public sector division of EOH, which culminated in the retrenchment of Lekalake, then did EOH have any justifiable reason in law or the Labour Relations Act to justify the dismissal of Lekalake for operational requirements? A stern no is the answer
— Acting judge Smanga Sethene
Acting judge Smanga Sethene pointed out that EOH’s reasons for dismissing Lekalake kept changing. The initial reason was alleged poor work performance and that Lekalake did not enjoy programming, as testified by Devereux. He said due to this, Lekalake requested to be moved to business process controlling, which Devereux considered favourable as Lekalake had a finance background. He further testified that Lekalake struggled with his duties and DWS wanted someone more senior.
Devereux conceded, however, that there was no performance appraisal conducted by him on Lekalake and he could not recall or prove if any training was provided to Lekalake to tackle his alleged poor performance.
Lekalake testified that he had a series of qualifications in computing and IT, including a BSc in computational and applied mathematics from Wits University, a diploma in business computing from College Campus, an IT certificate from Tshwane University of Technology and a certificate in operations research from Unisa.
Legodi, on the other hand, testified that Lekalake did not propose where to be placed and though Legodi tasked someone to circulate Lekalake’s CV across divisions within EOH and externally, that proved fruitless.
However, during evidence-in-chief, the real reasons were revealed, which were serious corruption allegations levelled against EOH’s senior executives that led to the closure of the public sector division, resulting in Lekalake having no work to perform.
Legodi explained the EOH suffered a reputational dent in 2018 in the public and private sectors that led to the closure of the public sector division. Serious corruption allegations involved certain people who were at the helm of EOH.
Legodi conceded that once Lekalake was removed from the DWS, he was not replaced to continue with the duties or get a senior replacement. Instead, EOH lost the contract it had with the DWS to a competitor.
Sethene said the genuine reason for Lekalake’s dismissal for operational reasons was that senior staff at the helm of the IT company had serious corruption allegations hanging over them, leading to the closure of the public sector division.
“Had it not been for serious corruption allegations levelled against senior persons/executives at the helm of EOH, it stands to reason that retrenchment would not have occurred and the public sector division of EOH would have enjoyed economic buoyancy. This is premised on the fact that none of the EOH witnesses could state with certainty that Lekalake poorly performed his duties at any point during his employment period,” said Sethene.
He said EOH witness Devereux, to whom Lekalake reported, conceded that no performance appraisal was conducted to confirm the so-called poor work performance. In addition, Devereux could not remember if any training was provided to Lekalake to improve the alleged poor performance.
Sethene said claims of poor work performance and the alleged struggle to perform duties were a “complete” fabrication as no documentary evidence could be provided.
“In any case, it is trite that an employer cannot use alleged poor performance as a reason to dismiss an employee for operational requirements. Undoubtedly Lekalake had impressive academic credentials and I found it rather untenable that Devereux would even allege that Lekalake did not enjoy programming but finance as ‘his background was in finance’. To the contrary, Lekalake’s academic credentials do not include finance as a core speciality but IT.”
There was also no evidence to prove that DWS required a more senior person to replace Lekalake and no senior person was appointed to replace him at the DWS.
Sethene said when it came to Lekalake’s employment contract, there was no evidence he was employed only to be deployed to the DWS and not to other business units where his skills could be used.
EOH also failed to provide evidence to prove it faced an economic downturn that justified retrenching Lekalake, except for serious allegations against its senior executives that led to the loss of contracts to competitors and reputational damage.
“If serious corruption allegations led to the downfall of the public sector division of EOH, which culminated in the retrenchment of Lekalake, then did EOH have any justifiable reason in law or the Labour Relations Act to justify the dismissal of Lekalake for operational requirements? A stern no is the answer.”
The moment the employer fails to prove and justify that it instituted the section 189 process for a fair reason, then the prime remedy is reinstatement, he said.
“In the conspectus of the facts of this matter, it is apt to find that the reinstatement of Lekalake becomes unavoidable — like the air we breathe.
“EOH continues to trade and can undoubtedly benefit from the skills of Lekalake. Lekalake had nothing to do with serious allegations of corruption levelled against senior executives that caused the closure of EOH’s public sector division. Lekalake was merely a victim of circumstances. Then in the circumstances, justice must reign supreme.”
Sethene ordered that Lekalake be retrospectively reinstated as an EOH employee with full benefits as his dismissal was found to be substantially unfair. He shall report to duty next month at the headquarters, while EOH is ordered to pay Lekalake’s legal costs.
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