December 02, 2020

Is long-suspended Secretary Mgidlana finally going to leave the building?

Have we at last heard the end of the protracted disciplinary process against suspended Secretary to Parliament Gengezi Mgidlana after the Speaker accepted recommendations by the disciplinary committee that he be summarily dismissed after being found guilty of serious misconduct? Possibly, but also possibly not.

After National Assembly Speaker Thandi Modise made the announcement on 11 September that she has accepted the recommendations of the disciplinary committee to dismiss the long-suspended Secretary to Parliament, he hit back indicating that he rejected the findings and would be investigating further legal action.

The law can move painfully slowly, as his more than two year disciplinary process demonstrated, and in approximately 10 weeks his contract will end, along with Parliament’s obligations as his employer. Could this make it possible for him to walk away from parliament, relieved of all charges the institution has levelled against him, and with a clear record?

After being paid R1.3million a year since June 2017 for doing nothing at all, could Mgidlana could get off scot free?

That could be one possibility. It would certainly be an ironic twist to the story of two former parliamentary staff members (and there may be more) who were suspended by him and while waiting for their disciplinary procedures their contracts expired and they found themselves no longer eligible for any protection that the Commission for Conciliation, Mediation and Arbitration (CCMA) could have offered them.

Mgidlana has reportedly said that that, like any other South African employees, he has the right to appeal to the CCMA, and he may do so. But he will find there is always a very long queue at the CCMA, and its procedures move very slowly. He might land up in the same spot as the two former parliamentary employees; no longer entitled to CCMA assistance. But then at the same time would he be free of the charges for misconduct that now threaten to bring about his summary dismissal?

After being paid a full salary of R1.3million a year since June 2017 for doing nothing at all, could it be possible that Mgidlana could get off scot free?

Labour lawyer and Democratic Alliance MP Michael Bagraim thinks not.

“In this particular case, the process was properly handled in line with the Labour Relations Act. The proper process to follow is to have the internal disciplinary enquiry, for the chairperson to recommend dismissal and for the employer then to agree to the recommendations”.

He agrees the dismissed employee could “choose to refer the alleged unfair dismissal to the CCMA”. It would not be an appeal, he said. “It is a referral and the CCMA does not reverse the dismissal. It merely activates an external enquiry in order to assess whether the dismissal was procedurally and substantively fair.”

But in this case Bagraim does not believe that the CCMA would overturn the procedure of the dismissal. “It does appear ... that the merits of the case do warrant dismissal,” he said.

He added: “This protracted disciplinary enquiry has created an unfortunate situation where Gengezi has received his salary over many months whilst Parliament has not been proficient in handling its own internal industrial relations processes.

“In the private sector a business would suspend an employee within days of finding out [about] the wrongdoing and would normally have the disciplinary enquiry within 48 hours after the suspension. This means that the employee would not continually receive a salary throughout a protracted process.”

However, that is not how it works in parliament. According to parliamentary rules, the findings of the disciplinary committee must first be conveyed to Mgidlana. Modise announced at the Joint Standing Committee on Financial Management of Parliament that they would write a letter to Mgidlana informing him of their decision.

They will then refer the matter to both houses of Parliament – the National Assembly and National Council of Provinces – as required by parliament, Modise said. This means a motion has to be placed before each of the Houses for adoption. She explained that the Secretary to parliament is appointed by parliament’s two Houses, and they have to consider any proposal for his dismissal. At what stage he ceases to earn a parliamentary salary is not clear.

Among the first complaints against Mgidlana that were submitted to the former Presiding Officers came from the National Health, Allied and Education Union (Nehawu) who accused him of receiving an ex gratia payment of R71 000, irregularly awarding himself a study bursary over junior staff, improper procurement processes, the breach of legislation on the financial management of Parliament as well as the breach of the National Road Traffic Act.

The response was fairly slow, and at that point Mgidlana was granted special leave, as he requested, on June 9, 2017. Parliament agreed to set up an internal parliamentary audit committee, in May that year, to investigate the allegations.

The audit findings were ready in November, but were kept tightly under wraps. Only members of the Joint Standing Committee on the Financial Management of Parliament were allowed a sneak peek, as long as they didn’t have a pen or any other recording device with them at the time.

The first indication that this may indeed be serious was the placing of Mgidlana on suspension at that time, albeit with benefits. And an official disciplinary process was set in motion. Inevitably rumours made their way into the public domain, and Mgidlana tried to halt the process by applying for an urgent interdict in April 2018. This was rejected by the court.

It has been almost two years, and the disciplinary process slowly unfolding under the auspices of the then presiding officers was starting to look as if could outlast his employment contract. This month’s timely action could have been the result of a change of leadership in parliament, but it also had a lot to do with opposition leader John Steenhuisen’s tenacious determination to make sure that this did not happen.

According to the recently announced outcome, a total of 13 charges were laid against Mgidlana, although the actual charges were not made clear. One charge was withdrawn. He was found not guilty of five charges because the policy was not very clear on the issues. He was found guilty on seven charges, of which three resulted in final written warnings and four related to serious misconduct with the sanction of summary dismissal.

Moira Levy

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Notes from the House is an independent online publication that tracks and monitors Parliament’s role in fulfilling its constitutional responsibilities to improve the lives of South African citizens. Published by Moira Levy with the support of the Claude Leon Foundation.

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