Fired employees to take City of Joburg to court over contract saga

It looks the City of Joburg’s 130 employees will proceed to take legal action against the metropolitan municipality following the termination of their permanent contracts.

Last month, the City of Joburg‘s council took a decision to reverse the permanent employment of the 130 employees.

According to the new Democratic Alliance (DA) led multi-party coalition government, the conversion of the fixed-term contracts to permanent was irregular and illegal because the decision – taken in October last year – was never approved by the council.

The ANC governed the metro at the time when a mayoral committee took the decision.

While the employees were issued with notices informing them that their contracts had been converted to fixed-term, they have decided to take the legal route.

The workers’ fixed contracts is set to end on 1 April.

‘Procedural defects’

Speaking at a media briefing on Tuesday, the employees’ legal representative, Mojalefa Motalane, said an investigation into the legality of the contracts should have been conducted before the current council took a decision to reverse them.

Motalane said the notices sent to the employees had several procedural defects including the city’s failure to call for objections before the decision to rescind the contracts was taken.

“The exercise of public power always has to be consistent with the rule of law and where administrative decisions are taken, such administrative decisions have to be procedurally and substantively fair.

“As a result, all decisions taken by any organs of the state exercising public power has to be compliant with section 33 of the Constitution, read together with provisions of PAJA [Promotion of Administrative Justice Act], in particular section 3 thereof.

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“Section 3 requires the City when deciding to take the decisions that adversely affect its employees to adhere to a procedurally fair administrative process which, in the circumstances, required not only adequate notice of the nature and purpose of the proposed administrative action but a reasonable opportunity to make representations,” he said.

The lawyer said the notice also showed the city failed to “distinguish between the decision to convert the basis of the employment and the actual employment”.

“The employment of our clients can never, as a matter of fact, be considered unlawful, the decision to convert the basis on the other hand can arguably be considered to be unlawful – which unlawfulness is denied.”

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Notices

Motalane further indicated that the employees argue that the notice was defective because the city made it look “as if there was another process that could be followed” after the council’s decision.

“The invitation contained in the notice is further irregular and disingenuous as it is clear that the termination of our client’s full-time employment was after the unlawful council decision.

“The invitation was an attempt to shroud the city’s aberration with rationality, because the city, without waiting for these representations, issued a directive for the implementation of the resolution,” he said.

He criticised city’s assertion that the employees missed the deadline to make representations in light of the council’s decision.

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“The further incongruity is that our clients were given 24 hours to respond to the notice. There is absolutely no reason given in the notice or that can be gleaned from the resolutions that indicate a dire and urgent need to rescind the conversions immediately.

“Thus nothing justifies the shockingly inappropriate timeframe that was given to our clients to file representations,” the lawyer added.

On Monday, Joburg mayor Mpho Phalatse said the council had taken a decision after the South African Municipal Workers Union (Samwu) and the employees’ lawyers missed the deadline to make any representations to challenge the move.

Demands

Meanwhile, Motalane further said the employees will continue with their legal action should the city miss the Friday deadline to address their demands.

“Our clients demand that an undertaking be furnished by the city, within five days of receipt of this submission, that it will not proceed with the implementation of the 25 February 2022 council resolution that pending an internal consultation process the city withdraws the notice within three days of receipt of these representations.

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“Should the city fail to respond to this objection or furnish the required undertakings within the aforementioned period our clients will approach the appropriate forum, including but not limited, to the Bargaining Council, the High Court or Labour Court for urgent appropriate relief,” the lawyer concluded.

But the city has since said it will oppose legal action, insisting that the council’s decision to reverse the permanent contracts would remain in place, according to News24.