Labor court rejects case of unfair dismissal of former municipal official after his election as councilor

A former civil servant in Umsobomvu Local Municipality in the Northern Cape has lost his appeal in the Industrial Court against dismissal.

The South African Municipal Workers’ Union (Samwu) has filed suit against the municipality in the Industrial Court in an attempt to review and overturn the 2021 dismissal of Ntoyakhe Mgcineni.

However, the court rejected their request on June 20, 2024.

Following the rejection, the applicants sought leave to appeal the decision.

Former Umsobomvu manager challenges ‘unfair dismissal’ in employment tribunal

Mgcineni, who was head of the community development section at the municipality, was deemed to have resigned after being elected as a councilor.

Ahead of the local elections on November 1, 2021, he joined the Umsobomvu Residents Association (URA) and emerged as the second candidate on the organization’s proportional representation (PR) list.

On November 2, it became clear that the URA had secured two seats on the council.

Mgcineni then wrote to the organization on November 3 to request the removal of his name from its list of candidates.

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The URA accepted his withdrawal and informed the municipality and the Electoral Commission of South Africa (IEC) on November 4 that he would be replaced by another candidate.

On November 8, Mgcineni presented himself at the municipality to take duty but was turned away.

His supervisor informed him that he could not return to work, since he had been elected as a councillor.

This was confirmed the next day, November 9, when the IEC officially published the election results.

Act to amend the Act respecting municipal structures

On the same day, the municipality sent a letter to Mgcineni, stating that he was considered to have taken up his duties as a councilor and was therefore deemed to have resigned the day before.

The municipality cited the law amending the law on municipal structures of local government, which came into force on the day of the local elections.

The amending law stipulates that an elected councilor is considered to have taken office on the date of proclamation of the election results.

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It also prohibits political parties from modifying or supplementing their lists of candidates between the close of nominations and the day after the first council meeting.

In addition, the law specifies that a candidate registered on a party list ceases to be a candidate either when he assumes his functions as advisor, or when he resigns from the list by written notice to the Director General of Elections (DGE). of the CIS.

SALGBC Procedures

The municipality then clarified, in a letter dated November 11, that Mgcineni had not been fired.

Nonetheless, the former municipal employee and Samwu filed a dispute with the South African Local Government Negotiating Council (SALGBC), claiming unfair dismissal.

Léon Joubert, arbitrator of the SALGBC proceedings, determined that Mgcineni had not been fired by the municipality; rather, his employment contract had been terminated “as of right”.

Mgcineni took his case to the Labor Court, where it was heard on June 18.

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Two days later, Judge Reynaud Daniels dismissed the case, ruling that Mgcineni was “the author of his own misfortune”.

The judge noted that the former municipal employee did not consult a lawyer before choosing to become a municipal councilor and subsequently withdrew his candidacy.

Furthermore, the judge pointed out that it appeared that Mgcineni was unaware of the coming into force of the Law Amendment Act and its implications.

Labor court rejects appeal

In delivering his judgment on the appeal on September 27, Daniels noted that Mgcineni appeared to recognize that the URA was prohibited from changing its list of candidates, as required by the Structures Act.

“In any event, as the third respondent maintains, as of November 3, the applicant was no longer simply a candidate.

“The election had taken place and he was an elected councillor. There is no chance of success here,” we read in the judgment.

He rejected the former city employee’s argument that the structures law violated his constitutional right to fair labor practices.

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“This challenge was not raised during the request for review itself and is raised for the first time on appeal. This is inappropriate.

“Also, usually when the content of a law is the subject of a constitutional challenge, the executive branch must be cited,” Daniels explained.

The judge therefore dismissed the application for leave to appeal without an order for costs.

“The other attacks against this judgment are formulated in broad terms, are unfounded and therefore do not deserve a response. »