Labour Court rules against Lottery’s unfair dismissal of senior employee

The Johannesburg Labour Court has ordered the National Lotteries Commission to immediately reinstate, with backpay, a senior employee it unfairly dismissed at the end of 2017. Illustration: Lisa Nelson

• Sershan Naidoo, who was dismissed by the National Lotteries Commission (NLC) in 2017, had raised concerns over the NLC’s allocation of funds.
• The CCMA upheld the dismissal, but the Labour Court has now overruled it.
• The judge has ordered Naidoo to be reinstated with backpay.
• The NLC was also ordered to pay his legal costs.

The Johannesburg Labour Court has ordered the NLC to immediately reinstate, with backpay, a senior employee it unfairly dismissed at the end of 2017.

Sershan Naidoo has been locked in a legal dispute with the NLC since he was frogmarched out of the building in December 2017. In a previous interview with GroundUp, however, he claimed that there was something sinister about his ousting and that it was as a result of him asking difficult questions regarding the allocation of funds.

The NLC disputed Naidoo’s comments.

The matter came before Judge Portia Nkutha-Nkontwana on review from the Commission for Conciliation and Mediation (CCMA), which, in 2019, ruled that Naidoo had not been dismissed; he had refused to sign his employment contract and “there was no employment relationship” between him and the NLC, so it had no jurisdiction.

But Judge Nkutha-Nkontwana said the CCMA had been wrong.

Naidoo had been employed at the NLC since 1999 in various positions. After a restructuring process in 2016, he became head of publicity and media with a remuneration package of just under R1.3 million a year.

That same year, he successfully applied for a vacancy to become a member of the Arts, Culture and Natural Heritage Distribution Agency.

But when his five-year non renewable contract was presented to him, he noted that the package was for just more than R1 million per year.

He refused to sign it, but he took up the position after being assured that it would be resolved. It never was.

The following year he received an increase, but it was inflation-linked and given to all members of the agency.

In December 2017, he was given an ultimatum to sign the contract within three days. He again refused. He then received a letter from the NLC stating that he had effectively declined its offer of employment, and the commission ”formally accepts your repudiation of the relationship with the commission”.

Security was called and he was escorted out of the building.

Contrary to the CCMA ruling, the Judge found that Naidoo had, indeed, been dismissed. And in doing so, the NLC had been “ill-advised and wrongly deduced” that it was entitled to dispose of the requirements of fair dismissal under the Labour Relations Act.

The judge said his dismissal was substantively and procedurally unfair. “There is no reason why he should not be afforded the primary remedy of reinstatement,” the judge said. “Given the egregious conduct of the NLC towards him, I am satisfied that reinstatement with full back pay is just and equitable.”

The judge ordered the NLC to pay Naidoo’s legal costs, saying that while in labour courts parties were not usually awarded costs, in this instance the NLC’s opposition was “flagrantly disingenuous as well as cynical”.

Naidoo told GroundUp: “I am truly satisfied with the judgment in my favour. It’s been an extremely long and arduous three years and four months, that I wouldn’t want anyone else to endure. The matter is very sensitive right now, and still fresh, so I wouldn’t want to discuss further. “

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