Mashaba CCMA case is a legal quagmire – labour law experts

The CCMA case involving Shakes Mashaba and Safa was postponed during the week when Mashaba’s lawyers could not conclude their cross-examination of Dennis Mumble, the soccer body boss.

Mashaba was sacked as Bafana Bafana coach in December following the conclusion of his disciplinary hearing.

He was found guilty of gross misconduct, insubordination and bringing Safa into disrepute.

Legal experts said anything could happen when the hearing resumes next week.

Safa, in the hearing, has to convince the commissioner that Mashaba’s actions were so severe that no other sanctions except dismissal will suffice. Mashaba, on the other hand, is arguing the organisation was hasty in taking this decision, and is demanding his Bafana Bafana job back.

READ MORE: Safa sacks Shakes Mashaba

“In this regard, notwithstanding the right to freedom of expression, an employee cannot have emotional outbursts that will harm the employer, especially in the public space,” said Osborne Molatudi, a partner at Hogen Lovells, a labour law firm.

Molatudi said: “An employer has the right to discipline and subsequently dismiss an employee on the grounds that the emotional outburst(s) displayed in the public arena resulted in reputational damage that cannot be quantified,” and added a fair procedure would have to be followed by the employer before the employee is dismissed.

“The employer will have to show, by way of leading evidence, that as a result of the emotional outburst and the damage caused, the trust relationship has broken down between the employer and the employee,” according to Londeka Dulaze, an associate at the firm.

Dulaze said: “The employer could argue that the result of the outburst was so gross that the company has lost business and/or potential or existing clients. This could be an aggravating factor during the disciplinary proceedings.”

They both told The Citizen nothing precluded the employer from appointing a new incumbent, as that was for continuity purposes. Safa has already replaced Mashaba with Stuart Baxter.

‘Safa can argue that the national squad could not reasonably be expected to wait for the finality of the proceedings because the squad is expected to play qualifying games, which require a permanent and skilled coach to manage and train the team.’

“Having said this, the employer should be able to provide reasons why it could not wait for the finality of the CCMA proceedings.

“In the case of Bafana Bafana, Safa can argue that the national squad could not reasonably be expected to wait for the finality of the proceedings because the squad is expected to play qualifying games, which require a permanent and skilled coach to manage and train the team,” Molatudi and Dulaze explained.

The said it was highly likely that Safa would argue that a new coach had since been appointed and therefore Mashaba could not be reinstated.

To succeed at this, the pair said: “Safa will have to show that it is not the author of its own troubles, and perhaps that operational requirements required a new coach to be appointed.”

“Mashaba could obviously argue that Safa ought to have used the assistant coach until the finality of the proceedings. In response, Safa could argue that the scheduled games, which are qualifying games for the World Cup and Afcon, required someone with the necessary experience and skills which surpassed the experience of the assistant coach,” they deliberated.

Shakes Mashaba saga set to run and run