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Court rules eThekwini Municipality’s promotion of 53 MK veterans ’unlawful’

By Thami Magubane Time of article published Sep 9, 2021

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Durban: THE “irrational and unlawful” decision by the eThekwini Municipality to promote almost 50 Umkhonto we Sizwe (MK) veterans, who are employed in its water and sanitation unit, to new positions with double their salaries has been set aside by the Durban Labour Court.

In a recent judgment, the court set aside the decision of the municipality to employ 53 workers in the position of “water service officers at task grade 9 or 10 or 11”, as it found that it was “irrational and unlawful”.

The court ordered that the workers revert to the positions they held in the municipality prior to the unlawful decision taken in April 2019.

The court also ordered that the ruling take effect from last month. However, the law firm representing the workers in the matter said they had filed an appeal.

Attorney Thembalekhaya Mboto, of Mboto and Associates, said since the judgment was being appealed, the order was suspended until the matter was finalised.

According to the judgment, the municipality brought the matter against the workers on the principle of legality and in terms of the Labour Relations Act. The SA Municipal Workers Union (Samwu), Independent Municipal and Allied Trade Union (Imatu) and the SA Local Government Association were also listed as respondents; however, no relief was sought against them.

The judgment stated that in June 2013, the city hired 55 MK veterans on a temporary fixed-term contract at task grade 5 as part of an “integration process” for a period of 12 months.

In 2015, after several extensions, the positions were made permanent.

The judgment states that according to the submission by the municipality, in 2017, the veterans approached the then head of the relevant unit, E (Ednick) Msweli, indicating their “grave concern that the integration process was not conducted according as per their expectations”.

The court said it appeared that the veterans were unhappy as they were not being remunerated in line with what they expected.

The city submitted that in March 2018, the water and sanitation unit submitted the report to the city manager, recommending “The Creation of a Supernumerary Post of Water Services Agent Supervisors and Water Services Agents in the Water and Sanitation Unit”.

The report said the unit was in the process of submitting tenders for the provision of leak detection and repair supervision services in areas of the municipality for 24 months, however it intended to stop the tender process and utilise the funds to appoint the MK veterans using the supernumerary posts.

The report was accepted and signed by the then acting city manager and relevant officials in May 2018.

The judgment noted that the veterans had previously been employed at job grades 4 and 5 but their new positions would be on a higher grade, with a pay grade of more than double the previous grading.

The jobs were advertised and 1 176 applications were received. Fifty-three applicants were appointed, with at least 47 of them being veterans.

Following the appointments, Samwu shop stewards in the unit requested a meeting with management for an explanation regarding the appointment process. Workers also embarked on a strike demanding that they be elevated to the equivalent status of the veterans.

In response to the case, the workers had denied that the decision to appoint them was taken irregularly and that the veterans were given preference. They also denied any involvement in the job description process and said they “bore no knowledge” of the complaint made in 2017 to Msweli.

In the court’s analysis of the submissions by the municipality and the workers, Judge H Cele found that the jobs had been created to cater for the veterans.

“So the short-listing and interview process was actually a fait accompli. The appointment of the employees who were not veterans was clearly done to cover up the pre-determined goal to be achieved.”

The judge said giving the veterans high-level job positions “sparked resentment amongst employees of the applicant, who might have been doing work of equal value”.

“This was due to the adoption and implementation of a glaringly partial and inequitable appointment system which favoured one group of employees to the exclusion of others.”

Municipal spokesperson Msawakhe Mayisela said they had noted the judgment, adding that it has not been implemented because the workers had applied for leave to appeal.

Queen Mbatha of Imatu said they were aware of the judgment and welcomed it.

“It is quite sad that it took such chaos and destruction for the employer to realise what they had done was wrong, it was clear from the beginning what they had done was unjust.”

The Mercury

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