Axed National Student Financial Aid Scheme (NSFAS) chief executive Andile Nongogo has lost his urgent Labour Court case challenging the board’s unilateral termination of his contract without a disciplinary process.
Acting judge Maletsatsi Mahalelo ruled on Monday that whereas the NSFAS disciplinary policy governs, formalises and standardises the disciplinary process for all employees to ensure they are treated fairly and consistently, there seemed to be a conflict between Nongogo’s employment contract and the disciplinary code.
Mahalelo noted that the disciplinary code stated that “all line managers have a responsibility to investigate allegations of misconduct before disciplinary action is taken and to advise the employee accused of misconduct as a courtesy”.
Said the Mahalelo: “The CEO does not have a line manager. To allege anything else would be to read in what is not stated in the disciplinary policy.”
She referred to the clause in the employment contract stating that the outcome of an investigation must be referred to human resources, which must engage with NSFAS management to make the final decision on whether disciplinary charges will be initiated.
“In my view, the CEO could not possibly be investigated by the human resources department, which reports to him,” said Mahalelo.
She noted that the disciplinary policy provided that the employee may be represented by a union representative or a fellow employee and excluded external legal representation or personal representation.
Nongogo, said Mahalelo, acknowledged that he was permitted to have legal representation, which indicated that he was not subject to the disciplinary policy.
Management cannot discipline CEO
Said Mahalelo: “One can hardly envisage how the CEO could be represented by a fellow employee, considering the seniority of his position.
“It goes without saying that the CEO could not have been represented by a union representative … It would be highly irregular that the human resources manager would submit a report to the CEO about the CEO sanction.
“The simple text of the disciplinary policy and the applicant’s contract of employment, in my view, show that the applicant was never intended to be the subject of the disciplinary policy.”
She explained further: “The CEO cannot be disciplined by management. He may only be disciplined by the board, as the powers to appoint and dismiss him lie solely with the board.
“This on its own goes to show that the procedures set out in the disciplinary policy do not make any provision for a disciplinary process in relation to a CEO.
“The plain reading of the contract of employment also makes it clear that the disciplinary code is not specifically incorporated into the applicant’s contract of employment.”
Disciplinary hearing not compulsory
In any event, ruled Mahalelo, even if it is to be accepted that the disciplinary policy and code applied to the applicant’s contract of employment, the disciplinary policy does not make a formal disciplinary hearing compulsory.
She said the disciplinary policy, which provided for the scope of the disciplinary policy, indicated that the policy applied to managing discipline and, where possible, initiating corrective or disciplinary action.
The clause also listed behaviours and circumstances that may require disciplinary action.
“The use of the words ‘where possible’ and ‘may’ does not make it compulsory for NSFAS to take disciplinary action in circumstances that are listed therein.
“The applicant has therefore failed to make out a case for the relief it seeks in the notice of motion,” concluded Mahalelo.
Whereas both parties asked for costs to be awarded on a punitive scale, Mahalelo made no order for costs.
However, she slapped Nongogo with costs for a failed application to strike out certain paragraphs in the NSFAS board’s answering affidavit.
