THE Johannesburg Roads Agency (JRA) has been ordered to compensate its fired chief executive officer (CEO) Tshepo Mahanuke more than R2 million after the Arbitrator found that he did not misrepresent his qualifications and that his dismissal was unfair.
In June last year, JRA CEO Tshepo Mahanuke was fired after he was initially suspended in November 2022 after the JRA alleged that he had faked his qualifications, which included a purported Harvard Master’s degree.
Following this, the dispute was referred for conciliation to the South African Local Government Bargaining Council (SALGBC) on July 7, 2023.
Eight months after the referral and the cross-examination by the Arbitrator, the Bargaining Council found that the agency failed to prove that there “was a fair reason for the Mahanuke's dismissal and that the dismissal was preceded by a fair procedure allegations that its Chief Executive Officer (CEO) falsified information in his job application”.
According to the arbitration award, the Bargaining Council stated that the former chairperson of the JRA Board, Charles Cilliers, testified that when Mahanuke was placed on suspension by the previous board, charges were formulated and disciplinary processes initiated, however, when Cilliers became the chair of the new Board, he cancelled the disciplinary process and fired Mahanuke.
“After a chairperson of the applicant's (Mahanuke) disciplinary hearing was appointed, the hearing was scheduled to commence at the end of March 2023, but it was postponed at the request of the applicant, and dates during May 2023 were suggested.
“Cilliers stated that, after the applicant's disciplinary hearing was postponed at the end of March 2023, the applicant applied to the Labour Court to interdict the disciplinary hearing. This application was dismissed by the Labour Court.
“The applicant then attempted to appeal the Labour Court order. The applicant thereafter launched another application in the Labour Court to interdict the disciplinary hearing. This application was subsequently withdrawn.
“The applicant's disciplinary hearing proceeded from May 16 to 19 2023 when 'technical’ points were taken by the applicant and he also questioned the authority of the Board to take disciplinary action against him. After the disciplinary hearing on 19 May 2023, the feedback received by the Board was that very little progress had been made at the disciplinary hearing and the respondent's (JRA) first witness had not yet been cross-examined. The next dates for the applicant's disciplinary hearing were meant to be during September 2023.
“Cilliers stated that the Board felt that it was being frustrated by the applicant and that public funds were being abused because an acting CEO had been appointed at the JRA. Cilliers stated that "the Board realised that this is a labour matter and, since the applicant was not happy with the disciplinary hearing, we decided to dispense with the disciplinary hearing and let the applicant have an opportunity to state his case.
“The applicant was then "requested to provide a written response or address the Board to provide his version so that we could decide whether to terminate the employment relationship or not". The applicant was also told that, if he failed to make representations, the Board would "conclude the matter" and terminate the employment relationship. The applicant made written representations on 29 May 2023 in which he stated that he had already pleaded not guilty and denied that he was guilty of the alleged misconduct,” read the Arbitration Award.
According to the Arbitrator, Cilliers stated to the Bargaining Council that Mahanuke's representations "just denied the misconduct without putting a version” to back it up.
On June 9, 2023, the JRA terminated the employment relationship with the applicant and he was given 7 days to appeal which Mahanuke complied but the Board took a decision to dismiss the appeal.
On the allegations that he misrepresented his qualifications, the Bargaining Council stated that Mahanuke “admitted that his CV records that one of the courses he did in October 2017 was "Master Competitive Intelligence (CIP-I)".
“He stated that the reference to "CIP-I" indicated that he had only done the core subjects for Competitive Intelligence, not the subjects for the Master Competitive Intelligence course. When I asked the applicant why he used the word "Master" if he had not done the subjects for "CIP-II" (i.e. Master Competitive Intelligence), he replied: “I put CIP-I in brackets....it was never my intention to misrepresent because Master Competitive Intelligence was not even a requirement.”
Furthermore, the Bargaining Council stated that in his CV, Mahanuke agreed that he was not a medical doctor, but stated that he does have an Honorary Doctorate.
In the ruling, the Arbitrator found that when the JRA cancelled Mahanuke’s disciplinary hearing, they failed to afford Mahanuke a right to a fair process.
“There is no provision in the Collective Agreement allowing for a disciplinary process to be followed by way of written submissions, and there is certainly no provision in the Collective Agreement allowing the Board of a Municipal entity (such as the JRA) to take the place of the appointed chairperson/Presiding Officer of an employee's disciplinary hearing,” read the Arbitrator’s ruling.
“Having regard to the foregoing, and given that the respondent completely disregarded the SALGBC Disciplinary Procedure Collective Agreement when the JRA Board cancelled the applicant's disciplinary hearing, it is plain that the applicant's dismissal was procedurally unfair.
“The evidence before me shows that the applicant did not misrepresent his work experience by stating in his CV that he had been employed at VUT as an Executive Engineering Specialist. In the circumstances, the respondent failed to prove that the applicant "grossly misrepresented" the period of his employment as a Reverse Engineer: Mechanical/Executive Engineering Specialist.
“The respondent, Johannesburg Roads Agency, is ordered to pay to the applicant, Tshepo Mahanuke, compensation in the amount of R2 035 873.76, being the equivalent of 8 months' remuneration calculated,” ruled Senior Arbitrator Timothy Boyce.
thabo.makwakwa@inl.co.za