De Ruyter must do SA a favour and go to the CCMA

One criticism I’ve long held against how the CCMA functions is its accessibility.

I get accessibility is obviously important. It’s just that, imagining an executive calling on the services of the CCMA is much like finding a CEO in Small Claim Court. Not only does it feel awkward but it typically clogs the processes for many less-wealthy people who may be in far more desperate need of resolution.

Be that as it may, from a legally strategic point of view, I hereby park my criticism temporarily to get excited about what outgoing Eskom CEO André de Ruyter can do for the country now. While the cards may not have fallen favourably for him, his parting gift to South Africa can be huge.

If De Ruyter claims that he was shut out of board meetings and that his job became impossible then he has a pretty slam dunk case for constructive dismissal – a form of dismissal where one resigns in practice but was compelled to do so due to the bad conduct of their superiors.

ALSO READ: Eskom CEO André de Ruyter resigns

What will that get us? Probably very little. De Ruyter may get up to an extra year of his salary but as far as the public go, we’ll know little. The CCMA and matters within it are hardly public. Anything that goes down in a mediation or arbitration will remain private.

At best, we’ll probably only know whether the CCMA found that De Ruyter was constructively dismissed or not.

Either way, that is where the fun will only start because if the CCMA finds in his favour, it will put the board and the state in an awkward place. They could either bend over and be seen to have forced him out unfairly or go for door number review. Reviews are processes in the Labour Court that determine whether the commissioner in the CCMA applied their mind to the facts.

Thing is, in order to do that, the court will need the facts before it. Above that, files in the court are public record. See where I’m going with this?

If De Ruyter wins in the CCMA and Eskom decide to try do something about it, they’ll be opening a treasure trove of documents and information Elon Musk can only salivate over.

Oh, but the gorgeous thing about all this too is that even if De Ruyter loses in the CCMA, he too can take the matter on review and put all the info in the public record through the courts.

ALSO READ: ANC clearly decided to throw De Ruyter to the wolves

In turn, this creates another strategic horror for Eskom. Would they go all out in the CCMA, putting as much sensitive matter in the record as possible knowing that it will go public upon review or will they try keep the record as light as possible to avoid publicity at the risk of weakening their CCMA case?

So please, Andre. You didn’t stop load shedding and you claimed it was, in part, because your job became impossible. I get that. I’m not happy about it and I still have to ponder on whether there was more you could have done to fight the dark forces but that’s a reflection for another day.

Today I’m showing you the door for the ultimate thing you can do for South Africa. You may not have been able to keep the power on but here is an opportunity for you to shed a far more alluring light on the condition of our grid and those who run it.

It’s rather rare for a legal strategy to present itself so neatly, packaged and ready for execution. Let’s see how Gwede Mantashe deals with that.

NOW READ: André de Ruyter: What you need to know about Eskom’s outgoing silver fox