Futho Hoohlo reclaimed his seat as the Chief Executive Officer (CEO) at Water and Sewerage Company (WASCO) after his suspension was declared null and void by the Labour Court this week.
Deputy President of the Labour Court, Makoanyane Keta declared Hoohloâ€™s preventive suspension by Wascoâ€™s Board of Directors null and void, thus declaring him well capable and fit to claim his position at the helm of the utility company. Hoohlo sought the courtâ€™s intervention over what he cited as an unfair suspension.
Hoohlo was suspended from work on November 15 last year to make way for investigations against him for a litany of misconduct accusations levelled against him.
In response, he had submitted a sick note from the medic which stated that he was unfit to report to work, but the Board couldnâ€™t wait for his recovery.
â€œWe see no reason why the respondent couldnâ€™t wait for the applicant to get better. The applicant was not at work due to the illness, and nothing prevented the respondent from conducting the investigations.
â€œWe find that the suspension of the applicant was unfair. The applicantâ€™s suspension is declared null and void,â€ Keta said.
â€œWe will point out from the onset that the reason for suspending the applicant in the present matter was to enable the employer to conduct investigations without hindrance.
â€œOnce the employer sees the likelihood of the employee interfering with investigations, he is at liberty to suspend an employee. The applicant is the senior most person within the respondent and holds the position of influence, the employer had valid reasons to impose preventative suspension once seeing a possibility that the employer might interfere with the investigation,â€ he said.
Ketaâ€™s judgment showed correspondences of the two parties during the arguments in the trial where the respondent argued that the Labour court doesnâ€™t have dominion to hold their arguments but the Labour appeal court.
â€œThe applicant was engaged as the Chief Executive Officer of the respondent on a three-year primary contract from August 5, 2019 to August 4, 2022. Subsequent to the engagement, the applicant received the letter from the chairperson of the Board of Directors, requesting him to show cause why he cannot be suspended from the duty. The letter was dated November 11, 2020, the same date the applicant fell ill and issued a note from the doctor that he should take leave from work and the respondent insisted the applicant show cause why he cannot be suspended.
â€œThe applicant was suspended on November 15, 2020, hence the presence of his application challenging the unlawfulness of his suspension. The respondent argued that the court lacks the requisite jurisdiction to interfere in this matter.
â€œIt was submitted on behalf of the respondent that the applicantâ€™s contract draws within the law; whenever there is a beef between the contracting parties, they must endeavour resolving their disputes by involving the provisions of the employer human resource regulations.
â€œThe applicant was expected to answer the show cause why letter on the same day at 18hrs, the same day the applicant saw his doctor and was confirmed unfit for work from November 11, 2020 to the 13th and was expected to report to work on November 14.
â€œOn November 12, the chairman of the Board wrote to the applicant, acknowledging the receipt of the sick note and extending the deadline of the response to the 14th.
â€œOn November 14, the applicant wrote an email to the chairman of the Board indicating that he was not feeling well and further that he will be on a check-up on the same date and another on the 16th. However, on November 15, 2020, the applicant was suspended from duty with immediate effect. The applicant states that the suspension was unlawful as was effected without the right to be heard in contravention of natural justice. It was argued on behalf of the applicant that failure to make presentation was not intentional but due to ill health,â€ Keta said.
â€œIt was further the applicantâ€™s argument that the show cause why letter was not comprehensive enough to allow the applicant to make proper presentation. The respondent on the other hand, argued that the applicant failed to set forth explanation why he failed to make representations, safe for the vague convenient sick note.
â€œIt was further argued by the respondent that the sick note submitted by the applicant was inadmissible to prove the truth of this content, and that there is no affidavit from the authority of the surgery or doctor confirming authenticity of the sick note.
â€œWe will not detain ourselves with the rest of the respondentâ€™s arguments or submission in motivation of the respondentâ€™s case. Our second issue is that they seek to challenge an interim order made by this court on November 23, 2020 and the ruling that was made in relation to the point of jurisdiction.
He continued that, â€œBefore determining the lawfulness or otherwise of the suspension of the applicant, it is our mandate to interrogate the nature in purpose of suspension. There are two types of suspension in the employment sphere; punitive and preventive.
â€œA punitive suspension is a result of a disciplinary hearing and this kind of suspension relieves the employee off his remuneration as a form of punishment.
â€œA preventive suspension emanates from the managerial powers of the employer, bars the employee from entering the employment premises to ensure that he does not interfere with investigations pending disciplinary hearing,â€ he said.
In the show cause, Hoohlo was accused for breaching his employment contract by not committing his time to WASCO and its Board and also backing one Litsebe Jimson to the Nartional Covid-19 Secretariat (NACOSEC) contrary to WASCO secondment policy.
â€œThat while in terms of your employment contract and WASCO policies, you are required to devote all your time and commitment to WASCO during working hours. You are a Board member of other entities and participate in Board meetings of those entities during WASCO working, thus contravening not only your employment contract, but WASCOâ€™s policies and Regulations as well.
â€œThat during or about July 2020 you circumvented WASCO secondment Policy and seconded the Director of Corporate Services, Mr. Litsebe Jimson, to NACOSEC contrary to WASCO secondment policy.
â€œThat during or about August 2020 you made a false statement during the Human Resource and Remunerations Committee meeting to the effect that the Director Corporate Services, Mr Litsebe Jimson, was not seconded to National Covid-19 Secretariat (NACOSEC) while you knew that you had seconded him to NACOSEC,â€ the letter reads.
In his response, he indicated that, â€œOn the issue of sitting in Boards of other companies, I confirm that as far as I am aware, I sit as a trustee to the Boards of the Public Officers and Specified Offices Defined Contribution Pension Funds. Upon my appointment, I notified you of my membership of those Boards. You consented that my membership would not conflict with my duties and that as long as I would make up for the time that I spent in its meetings, there would be no problem.
â€œAs a matter of fact, the Board has always known that I am member of the Board of Trustees of the Pension Fund since my appointment as the Chief Executive Officer of WASCO.
â€œI deny that I circumvented WASCO secondment policy and I deny that I seconded the Director of Corporate Services, Jimson to NACOSEC as alleged. In the same way, I deny that I made false statement during the Human Resources and Remunerations committee meeting to the effect that Mr Jimson was not seconded to NACOSEC. I confirm that Mr Jimson was attached to National Emergency Command Centre (NECC) as a representative of WASCO in the companyâ€™s capacity as an essential service provider,â€ the letter reads.
â€œI confirm, therefore, that Mr Jimson was never seconded to NACOSEC. I confirm that Mr Jimson remained an employee of WASCO and was attached to NACOSEC as a representative of the company. I did not, therefore, make any false statement during the Human Resources and Remunerations Committee meeting in respect of whether Mr Jimson was seconded to NACOSEC or not.