Recently I was asked to consider on national radio the right of recourse employees of the City of Johannesburg would have if their permanent employment term contracts, which had been converted from fixed-term contracts by one organisation, were now rescinded or reviewed and their employment terminated.
The issues brought to light the conflict which exists in political appointments. Political appointments are made in order to further the means or the ends of the party currently in power. The pollical appointments are considered to be those which provide assistance to principal political appointees. Those appointees are the Mayor, Speaker, Chief Whip, Chairperson, Leader of the opposition etc.
The argument being that having these administrative employees remain whilst there is a change of administration would hamper or hinder the new administration from pursuing its political manifesto as these employees would still be aligned to the old administration.
This view found supported in the Public Finance Management Act. as well as the intended Municipal Systems Amendment Bill. The bill was circulated for discussion after input from various interested parties in order to ensure that municipalities in the country remain stable after each election and that the correctly qualified employees, as opposed to politically connected people, are in municipal positions. This is important to ensure that the local government can continue to deliver service effectively. To do so, the bill recommends that after a change of administration, political appointees have 30 days to find alternative employment before their employment is terminated.
But, does the proposal deal with the mischief it is intended to deal with adequately?
Section 217 of the Constitution imposes an obligation on the state to contract for goods and services on principles of fairness, equality and transparency, but there must also be cost-effectiveness. The Labour Relations Act provides protection to those employees on a permanent basis. In other words, employment can only be terminated under certain circumstances and provided there are valid reasons in law (substantive fairness) and that the correct procedures have been followed (procedural fairness). In the case of a fixed-term contract, if there is a legitimate expectation of renewal of the contract, then the termination would be unlawful.
This is an example of politics colliding with the law but any dispute would have to be resolved at the bargaining council, alternatively in the Labour Courts.
Listen to the radio interview here:
Author: Tzvi Brivik
Director at Malcolm Lyons and Brivik Attorneys Inc.
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